Background
Kristyne Melbarde and Francis Allen Carr were engaged in family law proceedings that included a dispute over the division of family property, including the matrimonial home. In September 2025, the parties attended a judicial case conference (JCC) and by consent agreed to an order directing them to list the family home for sale with joint conduct of the sale (the Consent Order). Ms. Melbarde subsequently refused to sign the documents necessary to list the property, citing concerns about alleged structural damage to the home, unfavourable market conditions, a pending criminal trial involving Mr. Carr scheduled for July 2026, and her desire to buy out Mr. Carr’s interest.
Mr. Carr applied to enforce the Consent Order and sought sole conduct of the sale. In February 2026, a Supreme Court judge rejected Ms. Melbarde’s reasons for non-cooperation, enforced the Consent Order, and added procedural steps designed to circumvent the ongoing impasse — including a term granting the parties leave to seek further orders necessary to carry out those steps (the Enforcement Order). Ms. Melbarde sought to appeal the Enforcement Order, but the parties disagreed on whether leave was required. A chambers justice of the Court of Appeal (Justice Francis) found the Enforcement Order was an interim order requiring leave, and denied leave on the merits. That denial was reported at 2026 BCCA 162.
Ms. Melbarde then applied under s. 29 of the Court of Appeal Act to vary the chambers justice’s order, arguing that leave was never required because the Enforcement Order was a final order, and that in any event leave should have been granted. A three-judge review panel heard the application on June 3, 2026.
The Court’s Holding
Writing for a unanimous panel, Justice DeWitt-Van Oosten dismissed the application for review. The court held that the chambers justice correctly characterized the Enforcement Order as an interim order under the Family Law Act. The Enforcement Order arose from applications to enforce or vary the Consent Order — itself an interim, interlocutory order made at a JCC — and served only to give the Consent Order meaningful effect by adding terms to ensure its implementation pending the final adjudication of family property at trial. Because the Enforcement Order neither approved an actual sale nor determined the parties’ substantive property interests, it was not an order under Rule 15-8 of the Supreme Court Family Rules (Sales by the Court); it remained inextricably linked to, and of the same interim nature as, the underlying Consent Order.
As a result, leave to appeal was required under Court of Appeal Rules 11(b)(iii) (orders from a JCC) and 11(c) (interim relief under the Family Law Act). On the denial of leave, the panel applied the highly deferential standard of review applicable to s. 29 applications — requiring an error of law, error in principle, or misconception of the facts — and found none. The chambers justice correctly applied the Goldman, Sachs leave criteria, was aware of the policy considerations that make leave from interim family law orders exceptional, and was entitled to conclude on the record that Ms. Melbarde could not demonstrate a palpable and overriding error of fact on appeal. The panel also noted that if newly available evidence about Mr. Carr’s income substantively undermines the factual basis for the Consent or Enforcement Order, Ms. Melbarde retains the ability to apply in the Supreme Court under s. 215(1) of the Family Law Act to vary the Enforcement Order based on a change in circumstances.
Key Takeaways
- An order enforcing or varying a JCC consent order — even one that adds procedural terms to ensure implementation — retains the interim character of the underlying order and triggers the leave-to-appeal requirements under Court of Appeal Rules 11(b)(iii) and 11(c); it does not become a final order simply because its practical consequences feel irreversible to the losing party.
- For an order to qualify as a Rule 15-8 sale order (which would attract an appeal as of right), it must actually order or approve a sale and transfer of the property — an order merely directing that a home be listed does not meet that threshold.
- Review of a chambers justice’s leave decision under s. 29 of the Court of Appeal Act is highly deferential; the review panel will not substitute its own discretion and will intervene only where the chambers justice was wrong in law, wrong in principle, or misconceived the facts.
- Leave to appeal interim family law orders is reserved for exceptional circumstances; family litigants subject to interim orders are expected to direct their efforts toward trial rather than collateral appellate proceedings.
- Where a party contends that new evidence undermines the factual basis of an interim family law order, the proper remedy is a variation application in the originating court under s. 215(1) of the Family Law Act, not an appeal.
Why It Matters
This decision reinforces the practical limits on appellate access in family law matters and clarifies the boundary between interim enforcement orders and final orders directing a court-supervised sale of property. By confirming that an order compelling the listing — but not the actual sale — of a family home remains interim and subject to a leave requirement, the court discourages strategic non-compliance with consent orders followed by attempts to reopen those orders through the appellate stream. The case affirms that the JCC process, which is designed to promote early resolution and reduce court time, cannot be undermined by a party who consents to an order and later seeks an appeal as of right when that order is enforced.
More broadly, the decision illustrates the high bar a party must clear to obtain review of a denied leave application, and underscores the court’s expectation that interim-stage disputes in high-conflict family proceedings be resolved at trial rather than through successive appellate applications. It will be of practical interest to family law counsel advising clients on the appealability of enforcement orders and the strategic timing of variation applications when new evidence emerges mid-proceedings.