She claims counsel's pressure to pay legal fees influenced her to abandon appeal
In a case where a wife alleged that her husband owed her 850 gold coins as promised in their Iranian marriage certificate, the British Columbia Court of Appeal has decided to allow her to resume her abandoned appeal.
In K.S. v. C.W.K., 2025 BCCA 275, the parties married through a marriage ceremony in Iran in 2009, had a daughter born in 2014, and separated in 2018.
The family law trial between the parties involved property division, parenting, and child and spousal support issues. The wife also wanted to compel her husband to pay her 850 gold coins as part of an obligation called “Maher” or “marriage portion,” in line with their marriage certificate.
In August 2024, a trial judge of the Supreme Court of British Columbia denied the wife’s claim for gold coins. The judge also made findings on the parties’ equal parenting time and the husband’s beneficial interest in specific properties, income for support purposes, and child and spousal support obligations.
The wife appealed the judge’s decision in September 2024, then filed a notice of abandonment of her appeal in November 2024. In the present proceeding, she applied to set aside the abandonment notice and extend the time to file her appeal record.
Appeal will continue
The Court of Appeal for British Columbia deemed it in the interests of justice to set aside the wife’s notice of abandonment of her appeal, given the relevant considerations and unique circumstances in this case.
First, regarding exceptional circumstances, the wife alleged that it was difficult to understand and communicate legal terms and concepts since English was not her first language. She claimed that her trial counsel:
- pressured her to pay legal fees, which influenced her instructions to abandon the appeal
- filed the abandonment notice immediately after receiving her November 2024 email
- did not give her lawyer, who was not counsel of record on her appeal, a chance to clarify the instructions or advise on the consequences of the abandonment notice
The appeal court agreed that the wife might have lacked insight into the consequences of filing the abandonment notice and felt pressure to reach a decision regarding the appeal before having an opportunity to obtain meaningful advice.
The appeal court noted that the wife kept looking for a lawyer to help her with her appeal even after filing the abandonment notice, which supported her claim that she did not intend to finally abandon all her appeal rights.
The appeal court explained that the wife’s language difficulties and the unique, compelling circumstances in this case constituted events that “strike at the root” of her decision to instruct her trial counsel to “cancel” the appeal.
The appeal court accepted that this case might not easily fall under the established categories of exceptional circumstances that would justify setting aside an abandonment notice and did not clearly amount to a misapprehension or a mistake.
Second, regarding the appeal’s merits, the wife argued that the trial judge failed to consider the possibility of varying the Maher, such that she would receive partial payment rather than the complete cancellation of her husband’s obligation.
The appeal court saw arguable merit in the wife’s proposed appeal grounds regarding the judge’s refusal to enforce the Maher. The appeal court ruled that the judge failed to align with the analysis in Hartshorne v. Hartshorne, 2004 SCC 22, and consider a different apportionment instead of fully setting aside the Maher.
Third, regarding the prejudice to the husband due to the application’s timing, he asserted that he threw away some documents because he considered the case closed. The appeal court noted that the documents pertinent to this appeal were mainly trial exhibits accessible from the court file.
The appeal court acknowledged the inherent prejudice in disrupting the husband’s belief that the proceedings had concluded upon hearing about the abandonment notice.
However, the appeal court held that the husband only briefly held this belief and failed to allege significant prejudice arising from setting aside the abandonment notice. The appeal court noted that the wife filed the abandonment notice early in the process.
