Garousi v. Garousi

2025 BCCA 198 Garousi v. Garousi

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Garousi v. Garousi, 2025 BCCA 198 Date: 20250616 Docket: CA50590 Between: Vahid Garousi Appellant (Claimant) And Shilan Garousi Respondent (Respondent) Before: The Honourable Madam Justice Fisher (In Chambers) On appeal from: An order of the Supreme Court of British Columbia, dated July 6, 2023 (Garousi v. Garousi, 2023 BCSC 1143, New Westminster Docket E66285). Reasons for Judgment The Appellant, appearing in person (via videoconference): V. Garousi Counsel for the Respondent: K.A. McGoldrick Place and Date of Hearing: Vancouver, British Columbia June 4, 2025 Place and Date of Judgment: Vancouver, British Columbia June 16, 2025 Summary: The applicant seeks an extension of time to appeal an order dismissing his application for retroactive variation of child and spousal support. The respondent opposes the application, relying on the Court's discretion not to hear an appeal where the appellant has failed to comply with a court order, and on the basis that the proposed appeal is without merit. Held: Application allowed. Most of the criteria weigh in favour of granting the extension of time, given the particular circumstances of this case. While the merits of the proposed appeal are weak, it is not doomed to fail. The discretion not to hear an appeal from a party who has failed to comply with a court order is reserved for a division of

the Court, not a single Justice in chambers. Reasons for Judgment of the Honourable Madam Justice Fisher: [1] The applicant, Vahid Garousi, seeks an extension of time to appeal an order of Justice Lamb dated July 6, 2023 that dismissed his application for a retroactive variation of child and spousal support under s. 19 of the Divorce Act, R.S.C., c. 3 (2nd Supp.). He does so in the context of an ongoing appeal of a subsequent order of Justice Gibb-Carsley dated September 16, 2024 that dismissed a similar application, which appeal is being case managed by Justice Fenlon (appeal CA50591). Background [2] A brief outline of the background is necessary to situate this application. [3] Dr. Garousi is a professional engineer and academic. He and the respondent were married in Calgary, Alberta in 2007 and divorced in November 2013. They have one child, now age 17. The order of divorce was included in a consent order of the Alberta Court of Queens Bench that implemented provisions of a separation agreement with respect to child and spousal support (the Order). [4] The Order was premised on Dr. Garousi having an income of $105,000 under the Federal Child Support Guidelines and the respondent an income of zero. The Order required the parties to exchange copies of their income tax returns and notices of assessment annually, and any amounts owing under the Order were to be paid to the

Director of Family Maintenance Enforcement in Alberta. [5] The separation agreement included additional provisions about annual adjustments to child support and an agreement that neither party would apply to vary spousal support. It also addressed the division of property. [6] Pursuant to the Order, Dr. Garousi was required to pay child support of $958 per month, extraordinary expenses of $350 per month and spousal support of $600 per month. All payments were to commence July 1, 2013 and the spousal support order was to end on June 30, 2021. Dr. Garousi was also to pay lump sum spousal support in the amount of $40,000 by July 31, 2013. [7] Dr. Garousi made no payments after November 2013. In 2013, he left Canada and was living in Turkey. In 2017, he moved to the Netherlands and then, in 2019, to Northern Ireland. Because Northern Ireland was the only reciprocal jurisdiction of the three other countries, the respondent was able to take enforcement proceedings against him there. As a result, it has only been since the fall of 2024 that Dr. Garousi has started to pay arrears in the amount of 1000 British pounds per month. His current arrears remain very high, at approximately $272,000. [8] Prior to this, while living in the Netherlands, Dr. Garousi commenced an application for variation in Alberta but was unable to follow up with that process and that matter never went ahead.

However, in December 2022, after he had moved to Northern Ireland, he filed an interjurisdictional support variation application under s. 19 of the Divorce Act, which permits a former spouse resident in a designated jurisdiction to commence a proceeding to retroactively vary a support order. Dr. Garousi sought a retroactive variation of child and spousal support based on decreases to his income from 2013 to that time. This is the application that resulted in the order of Lamb J. on July 6, 2023. At that hearing both parties were self-represented, but the Court had assistance from an amicus curiae as to the procedural context for the application. The decision below (2023 BCSC 1143) [9] Justice Lamb allowed the application for a retroactive variation of child support only with respect to extraordinary expenses on the basis that the respondent was now earning an income. She dismissed the remainder for two reasons. [10] First, the judge found that Dr. Garousi had failed to establish a material change in income prior to December 2019. She was not satisfied that the evidence of his earnings and the applicable exchange rates were sufficiently reliable to prove the Canadian equivalent of his line 150 income for the years 2014-2019. She refused to consider Dr. Garousi's explanation that he had to leave Canada for his mental health because this was not corroborated by medical

evidence. [11] Second, applying the principles in Colucci v. Colucci, 2021 SCC 24 and D.B.S. v. S.R.G., 2006 SCC 37, the judge did not consider it appropriate for a variation to pre-date when the respondent received effective notice, which in this case was December 7, 2022, the date of formal notice. Although Dr. Garousi's delay arose from his unfamiliarity with the process, the judge found his failure to pay any child support since 2013 or provide the respondent with any updated financial information until December 2022, did not favour a longer period of retroactivity. She recognized the child had avoided hardship, but this was due to the hard work and frugality of the respondent. Finally, the judge was not satisfied that Dr. Garousi had established hardship and was not confident that he had provided a complete picture of his financial circumstances, including his income, assets and debts. She was not satisfied that any hardship to Dr. Garousi would outweigh the hardship to the respondent and their daughter given his non-payment of support since 2013 and his choice to live in non-reciprocating jurisdictions for many of those years. [12] The judge therefore concluded that it would not be unfair to limit a retroactive variation of child support to the presumptive date of December 7, 2022. [13] The judge dismissed the application for a retroactive variation of spousal support on

the basis of the separation agreement, which contemplated changes in circumstances and an agreement that such changes would not justify a variation of spousal support. Extension of time to appeal [14] The test to be applied on an application for an extension of time to commence an appeal, as set out in Davies v. CIBC (1987), 15 B.C.L.R. (2d) 256 (C.A.), is well known. The burden lies with the applicant to establish that an extension of time is in the interests of justice, having regard to the following factors: a) Was there a bona fide intention to appeal? b) Were the respondents promptly informed of the intention? c) Would the respondents be unduly prejudiced by an extension of time? d) Is there merit in the appeal? [15] The threshold to establish merit is low. The question is whether the appeal is "doomed to fail" or, whether "it can be said with confidence that the appeal has no merit": Stewart v. Postnikoff, 2014 BCCA 292 (Chambers) at para. 6. [16] The overriding consideration, and "decisive question" is whether it is in the interests of justice to grant an extension of time: Davies at 260-261. Submissions [17] Dr. Garousi deposes that he intended to appeal Lamb J.'s order and began drafting documents in July and August 2023. However, during that period, he received advice from the B.C. Family Maintenance Enforcement Program (FMEP) that he should pursue a new variation

application rather than an appeal. He followed that advice, which resulted in the order of Gibb-Carsley J. of September 16, 2024. That application was dismissed largely on the basis that it amounted to an improper and collateral attack on the July 6, 2023 Order and the proper procedure was to pursue an appeal: Garousi v. Garousi, 2024 BCSC 1685. [18] As I said at the outset, Dr. Garousi has appealed that order and that appeal, CA50591, has been case managed by Fenlon J.A. Dr. Garousi deposes that Fenlon J.A. suggested he consider applying for an extension of time to appeal the order of Lamb J. The respondent agrees that Fenlon J.A. raised the possibility of an extension of time. Hence, this application. [19] Dr. Garousi explained his failure to make any payments to the respondent after he left Canada by his distrust of the respondent and his perception that he needed to have the legal system involved in any payments. He accepts that his application to terminate child support was due to his lack of knowledge about the effect of hardship and takes no issue with his continuing obligation in this regard. [20] Dr. Garousi submits that his appeal has sufficient merit because the judge should have considered the decrease in his income prior to December 2022. He says he planned to bring this application sooner, but the COVID-19 pandemic delayed this. He says he provided all his pay

slips, contracts (with translations) and applicable exchange rates about his employment in Turkey and the Netherlands and was not trying to hide anything. He expressed frustration because he did not know what else he could have provided, having worked in foreign jurisdictions, and there was only limited legal assistance available to him on a pro bono basis. [21] The respondent opposes an extension of time for two reasons. First, she relies on the Court's discretion to refuse to hear an appeal where the appellant has failed to comply with a court order, citing Larkin v. Glase, 2009 BCCA 321 and several other cases where this principle has been applied in respect of orders for support where the appellant is in significant arrears. Second, she submits an extension would not be in the interests of justice because the appeal has no merit. [22] The respondent submits that the low merits threshold is not met here and makes a strong argument as to why the appeal should fail. She points out the highly deferential standard of review in family law matters. She submits that Dr. Garousi cannot meet the test for retroactive decrease of support prior to December 2022, the date of formal notice. She says that Lamb J. properly considered the factors in Colucci and D.B.S. in finding that they did not support a variation prior to December 2022 and found that Dr. Garousi had not established a

material change in his income. [23] The respondent also submits that Lamb J.'s conclusion that Dr. Garousi's evidence was insufficient to establish an earlier material change in his income is also entitled to deference on appeal as a question of fact. Even if the evidence were considered sufficient, the respondent raises a question as to whether income should have been imputed to Dr. Garousi, conceding, however, that Lamb J. did not address this issue. [24] As for spousal support, the respondent submits there is no prospect that a division of this Court would find error in Lamb J.'s conclusion that the separation agreement should not be retroactively varied to reduce spousal support given its terms. She also points out that Dr. Garousi is well out of time to apply to set aside the separation agreement. Analysis [25] For the following reasons, I have concluded that it is in the interests of justice to grant an extension of time to appeal the order of Lamb J. [26] The material before me establishes that Dr. Garousi formed a bona fide intention to appeal Lamb J.'s order but did not do so at the time as a result of advice or information he received from someone at FMEP. I consider his explanation for this a reasonable one, especially in the context of the proceedings in appeal CA50591 and Fenlon J.A.'s suggestion during case management of that appeal that this application was a

possible avenue to pursue. It is evident that the order of Lamb J. is the real source of the question sought to be resolved on appeal. [27] The respondent was not informed of this until the case management conference in January 2025 in appeal CA50591 (about 18 months after the order was made), but she was clearly aware of Dr. Garousi's intention to seek a retroactive variation of the support orders given that he seeks the same or similar relief in the other appeal. [28] I recognize that the respondent is prejudiced to some extent by having to respond to a second appeal. However, prejudice is not assessed in relation to the appeal itself but whether prejudice results from the delay itself: see Fidler v. Forensic Psychiatric Institute, a Hospital, 2016 BCCA 83 (Chambers) at para.

33. Here, the arguments the respondent makes are also made in appeal CA50591. Moreover, prejudice will not be fatal where it may be remedied. In my view, any prejudice to the respondent may be substantially attenuated by having both appeals case managed together. [29] I appreciate that an extension of time to begin an appeal should not be granted if the appeal is without merit and I agree with the respondent that the merits are weak. In his written argument, Dr. Garousi raises three issues: (1) whether arrears were calculated using outdated or inaccurate financial assumptions; (2) whether the court appropriately considered the grossly unequal division of property in the 2013 divorce order; and (3) whether there was full and transparent disclosure of the respondent's income. As articulated, these issues have no merit at all. Justice Lamb did not calculate the arrears, the fairness of the settlement agreement is not relevant to this application, and nor is the respondent's income. [30] That said, in his oral submissions, Dr. Garousi was able to articulate his primary ground of appeal as asserting that the judge erred in failing to consider the evidence of the drop in his income before December 2002. I would describe this as a question of whether the evidence of Dr. Garousi's income between 2013 and 2022 justified an order for retroactive variation prior to December 2022, or more

precisely, whether the evidence was sufficient to establish a material change that justified a retroactive reduction prior to the date of formal notice. [31] Although I recognize the highly deferential standard of review that applies in these circumstances, I consider this question to be an arguable ground of appeal that is not doomed to fail. Justice Lamb's reasons describe to some extent the evidence Dr. Garousi adduced, which was lacking in many respects, but it did reflect all of his positions of employment with documents as to his income from a foreign jurisdiction with standards different from those in Canada. The judge seemed mostly concerned with being unable to determine a Canadian equivalent of his income with accurate currency conversion rates. In respect of the retroactive date, the effect of Lamb J.'s order was to deny Dr. Garousi's application in total, as I understand he was only seeking a retroactive variation for the years prior to the date of his formal application. While Dr. Garousi will face substantial difficulties on this issue given his lack of effective notice and his conduct, the balancing of interests in assessing this is a challenging exercise in cases like this. Finally, the judge's dismissal regarding spousal support relies primarily on the terms of the parties' settlement agreement that were not incorporated into the consent Order, which is a

nuanced difference from authorities such as L.M.P. v. L.S., 2011 SCC 64 on which she relied. [32] As for the respondent's submission based on the principle in Larkin v. Glase, it is my view that this is a discretion that is to be exercised by a division of this Court, not a Justice in chambers: see, for example, First Majestic Silver Corp. v. Santos, 2014 BCCA 115 at paras. 32. [33] As most of the criteria weigh in favour of an extension of time in these rather unusual circumstances, I am satisfied that it is in the interests of justice to allow Dr. Garousi's application to extend the time to file an appeal of Lamb J.'s order. I do so with a direction pursuant to s. 30(b) of the Court of Appeal Act, S.B.C. 2021, c. 6 and s. 47(2)(a) of the Court of Appeal Rules, B.C. Reg. 120/2022, that the parties attend case management in coordination with appeal CA50591. Disposition [34] Dr. Garousi's application to extend the time to file his appeal is allowed. I also direct that the parties attend case management in coordination with appeal CA50591. "The Honourable Madam Justice Fisher"