Supreme Court of British Columbia Guivian v Goldarre Before: The Honourable Mr. Justice Bowden 2017 http://railtownlaw.com/2017/05/protection-for-self-represented-litigants/

2. IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: Guivian v. Goldarre,
2017 BCSC 471
Date: 20170324
Docket: E152985
Registry: Vancouver
Between:
Naser Guivian
Claimant
And
Farideh Moradali Goldarre
Respondent
Before: The Honourable Mr. Justice Bowden
On appeal from: An order of the Supreme Court of British Columbia, dated February
1, 2017 (Guivian v. Goldarre, Vancouver Registry E152985).
Reasons for Judgment
Counsel for the Claimant: J. Lewis
Counsel for the Respondent: V.H. Stewart
Place and Date of Hearing: Vancouver, B.C.
March 21, 2017
Place and Date of Judgment: Vancouver, B.C.
March 24, 2017

3. Guivian v. Goldarre Page 2
[1] This is an appeal by Ms. Goldarre from orders by a Master made on February
1, 2017.
[2] By way of background, after a marriage of 47 years the parties separated in
September 2015 when the respondent, Mr. Guivian, left the matrimonial home. The
appellant has continued to reside there since the date of separation.
[3] Mr. Guivian filed and served a Notice of Family Claim on October 31, 2015.
Since that time Ms. Goldarre has retained three different counsel and there have
been delays in getting this matter to trial.
[4] A trial was eventually scheduled to start on February 6, 2017.
[5] On January 16, 2017, the appellant’s counsel at the time, Kevin Heinrichs,
informed the respondent’s counsel that because of her health the examination for
discovery of the appellant would have to be postponed and the trial adjourned.
[6] The respondent’s counsel replied on January 24, 2017, that an adjournment
would only be consented to if various conditions were met including that the
respondent be given exclusive possession of the house by March 1, 2017, that the
property be listed for sale in March 2017 and that the respondent have sole conduct
of the sale. The appellant’s uncontradicted evidence is that she did not see that
letter.
[7] The appellant and her counsel parted ways on January 24 or 25, 2017 and on
January 30, 2017, the appellant filed a Notice of Intention to Act in Person.
[8] On January 26, 2017, the appellant applied for an adjournment of the trial on
the basis that she was still suffering the effects of shingles that had been diagnosed
in October 2016.
[9] The respondent filed an application response on January 31, 2017 opposing
the granting of the adjournment together with an affidavit in support and seeking the
orders that had been requested in his counsel’s letter of January 24, 2017.

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[10] The parties appeared before the learned Master on February 1, 2017, at
about 3:00 p.m. Only Mr. Guivian was represented by counsel.
[11] There is disagreement as to whether the appellant received the application
response and supporting affidavit prior to the hearing before the Master. The
material was sent to the appellant’s email address but the appellant said that
because she had been advised that her Google email password had been
comprised she did not open the email which was apparently from an assistant of
respondent’s counsel. No other form of service was attempted by the respondent.
[12] There is no disagreement that the first time the appellant received a hard
copy of the respondent’s material was on the morning of February 1, 2017. It is also
not disputed that the appellant is not fully conversant in the English language.
[13] The transcript of the hearing before the Master shows that the appellant was
in essence only seeking an adjournment. While the respondent made submissions
to the Master regarding the orders he sought it is apparent that the appellant was not
prepared to respond to the respondent’s request for orders relating to the occupancy
and sale of the matrimonial home.
[14] When the Master informed the appellant that one of the orders sought by the
respondent was that the adjournment would be harmful to the respondent it is
apparent that the appellant did not have an opportunity to provide her evidence
regarding her reasons for wanting to stay in the house.
[15] I accept that the appellant did not receive the respondent’s response and
supporting material in time to be in a position to properly present her case to the
Master.
[16] The learned Master may have been under the impression that the appellant
had received the respondent’s materials before February 1, 2017. The Master was
told that a binder of the materials had been provided to the appellant because she
was a lay litigant.

5. Guivian v. Goldarre Page 4
[17] The Master ordered that exclusive occupancy of the matrimonial home be
given to the respondent on April 1, 2017 and the property be then listed for sale with
the respondent having sole conduct of the sale. The Master also ordered that
$50,000 be paid out of his lawyer’s trust account to the respondent to allow him to
proceed with this litigation.
[18] It is also of some significance that the respondent argued before the Master
that the adjournment would be prejudicial to him because of his dire financial
circumstances. However, in his affidavit and in the submissions before the Master he
does not explain what happened to the $50,000 tax free payment that was made to
him in May 2016 by agreement between counsel for the parties at that time. The
Master was told that the respondent’s latest bank account indicated a balance of
$2,972. I also note that in the respondent’s affidavit dated January 30, 2017 he
states that on October 15, 2015, he travelled to Paris and stayed there for two
months. That hardly seems like a person who is financially strapped.
[19] While I accept that the appellant has probably tried to delay proceedings from
time to time while she remains as the lone occupant of the matrimonial home, it is
nevertheless important that before orders are made requiring her to move from the
home and relinquish any involvement in the process of selling the home, that she be
given not only notice of the orders sought by the respondent but also an opportunity
to be fully heard before such orders are made.
[20] While I accept that conditions may well be appropriate when an adjournment
is granted (see Navarro v. Doig River First Nation, [2015] B.C.J. No. 2578), orders
requiring an owner of matrimonial property to vacate and allowing a spouse who is
adverse in interest to occupy the property should only be made as a condition of an
adjournment when the spouse in possession has a full opportunity to be heard.
[21] I have concluded that that the appellant did not receive notice of the
application response and supporting materials filed by the respondent and even if
she had, as a self-represented litigant she could not be expected to know that as a
condition of the adjournment that she sought an order for her to vacate the

6. Guivian v. Goldarre Page 5
matrimonial home and for her spouse to occupy it and have sole conduct of a
subsequent sale might be made.
[22] I declare that the orders made by the learned Master that the appellant give
up occupancy of the matrimonial home to the respondent on April 1, 2017, that the
matrimonial home be listed for sale forthwith after April 1, 2017, and the respondent
have sole conduct of sale were made in breach of the rules of natural justice that is
without notice and without giving the appellant an opportunity to be heard.
Accordingly, such orders are nullities and are set aside. (Naderi v. Naderi, 2012
BCCA 16)
[23] The appeal is allowed and the appellant is entitled to costs at Scale B.
“Bowden, J.”