It is trite law that an appeal is from an order made by a lower court, however, in Der v. Hlookoff 2025 BCCA 193 the British Columbia Court of Appeal considered the role of reasons for judgment in interpreting a court order.
Hank Der and his former wife, Lisa Hlookoff, had sparred on several occasions over child support issues.
This saga began with an order made by Justice Basran in October 2022 where he held that the parties’ adult daughter, M., was a child of the marriage as she was studying full time in university. He ordered that the sum of approximately $15,000 to be released from an RESP set up for her by her parents.
In September 2023 Justice Marzari made an order that M. continued to be entitled to child support, with a review ordered in January 2024 where evidence would be received to determine if she remained a child of the marriage. At this hearing Der applied to vary Justice Basran’s order for the release of $15,000, arguing that Hlookoff had received the sum of $12,000 for M. from an RESP that she alone controlled. Justice Marzari dismissed Der’s application, finding that:
“ …That is a generally valid use of RESP funds, and I am not going to deduct the amounts used for those purposes from the amounts that are required to be paid under Justice Basran’s order.”
In September 2024 Der brought a further application to vary child support, which was met by a cross-application from Hlookoff seeking to receive additional RESP funds for M.
Justice Branch held that there was no evidence of M.’s continued enrollment in school and declared she was no longer a child of the marriage. He then went on to consider the RESP issue and asked Der whether he disputed Hlookfoff’s calculation of university expenses.
Der replied, referring to the reasons for judgment underlying the order of Justice Marzari, pointing out that the chambers judge had made a specific order and explained her rationale. Justice Branch responded that the court order did not contain that term and that it was the order alone that governed, saying:
“It doesn’t matter what the – it’s all — if you wanted a legal finding it has to be in the order. I’m not going to pick through her reasons for judgment.”
Der appealed Justice Branch’s order arguing that the interpretation of an order requires the consideration of the language in light of the pleadings and the circumstance in which the order was granted, citing Yu v. Jordan 2012 BCCA 367 and Garcha v. 690174 BC Ltd. 2023 BCCA 376.
Hlookoff argued that Der was improperly attempting to introduce the transcript from Justice Marzari’s hearing into the appeal, which was not evidence in the court below.
The appeal court agreed that the transcript of Justice Marzari’s hearing was not in the appeal record but her reasons for judgment were, and stated that no leave was required to include a judge’s reasons on an appeal, neither was a new or fresh evidence application warranted.
The court cited Sans Souci v. VRL Services Limited 2012 UKPC 6:
“… [T]he construction of a judicial order, like that of any other legal instrument, is a single coherent process. It depends on what the language of the order would convey, in the circumstances in which the Court made it, so far as these circumstances were before the Court and patent to the parties. The reasons for making the order which are given by the Court in its judgment are an overt and authoritative statement of the circumstances which it regarded as relevant. They are therefore always admissible to construe the order.”
And also R. v. Rajaratnam 2019 BCCA 209, where the court held that “the court’s reasons, where they exist, will often be the strongest indicator of the objective meaning of the order.”
In allowing Der’s appeal the court emphasized that it is a reversible error to consider the reasons for judgment to be irrelevant to the interpretative process, even where the order is unambiguous.
**This article was first published in LAW360, a division of LexisNexis Canada.