THE ADVOCATE 39
VOL. 77 PART 1 JANUARY 2019
When the youngest child was enrolled at a private boarding school, the
father brought an application to vary the child support award. Mr. Justice
Baird heard the application and agreed that the provision that support
would not be paid if a child was not living with the custodial parent trumped
the term that support would be paid regardless of where a child resided. He
confirmed that the father would pay all of the costs of boarding school
together with a per diem to the child’s mother for each day the child was
The Court of Appeal disagreed. It found that the chambers judge had
failed to consider whether a material change in circumstances existed sufficient
to vary the arbitration award. In the Court of Appeal’s view, the
chambers judge had simply interpreted the provisions of the arbitration
award, which amounted to an error in law, as the application required an
examination of the principles relevant to a variation application.
McMILLAN v. McMILLAN
The case of McMillan remains the seminal case in British Columbia in
respect of family arbitration litigation. The first McMillan decision,26 made
in 2015 after the arbitration, concerned both an application for a stay of the
arbitration award, which had required Mr. McMillan to pay $665,000 to his
wife, and a responding application for a contempt order for failure to pay
The court dismissed both applications. The stay was refused on the basis
that Mr. McMillan was a “rich man” who could afford to pay the award, and
the contempt application was described as premature given that Mr. McMillan
had expressed a desire to obtain a stay early on.
The second McMillan decision,27 also issued in 2015, concerned Mr.
McMillan’s appeal of the arbitration award. The parties were 16 days into a
six-week trial when they retained a mediator who assisted them in executing
a memorandum of settlement. The settlement document provided that
in certain instances, if required, an arbitrator selected by the parties would
arbitrate disputes. The arbitrator’s award resolved all the outstanding issues
from the settlement and ordered Mr. McMillan to pay damages of $384,0000
for breaching his duty of good faith in delaying the payment of monies to
his former wife. Costs and disbursements of $235,000 were also awarded.
The key issue for the court was the standard of review on an appeal from
an arbitrator’s award. Mr. McMillan posited that “correctness” was the
appropriate test, similar to an appeal from a judgment of a lower court. Mr.
Justice Punnett disagreed, stating that “a review on a question of mixed
fact and law does not permit review of the arbitrator’s factual findings.