I.B. v. M.M. Date:, 2016 BCPC 468

Citation: I.B. v. M.M. Date: 20161025 2016 BCPC 468 File No: F16259 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: I.B. APPLICANT AND: M.M. RESPONDENT RULING OF THE HONOURABLE JUDGE McQUILLAN Counsel for the Applicant: P. Reimer

Counsel for the Respondent: D. Klein Place of Hearing: Port Coquitlam , B.C. Date of Hearing: October 17, 2016 Date of Judgment: October 25, 2016 [ 1 ] I.B. brings this matter before the court under the Interjurisdictional Support Orders Act (“ ISOA ”). She seeks orders that the Respondent, M.M., pay ongoing and retroactive child support for the child, A.M., born [omitted for publication].

The Respondent raises a preliminary objection challenging the jurisdiction of British Columbia courts to make orders for child support due to the existence of a child support order made by the Russian courts on September 28, 1998. Background Facts [ 2 ] The parties were married in Russia in 1994. They had one child, namely A.M. The parties separated in July 1998 while still living in Russia. By order of a Russian court on September 28, 1998, the respondent was ordered to pay 25% of his income to the Applicant for the support of A.M.

The parties disagree as to whether he in fact paid the full amounts owing by him under the Russian court order. The Respondent has provided a translation of what appears to be a Russian Court Order indicating that all amounts were paid under that Order but I understand that the Applicant contests that assertion. The parties were divorced by the Russian courts in November or December 1998. [ 3 ] In 2003 the Applicant re-married an American and moved to North Carolina with A.M. where they have both resided since then.

In 2008 the Respondent moved to British Columbia and has resided here since that time. [ 4 ] In 2012 the Applicant attempted to register the Russian child support order in the BC courts for enforcement, but that was rejected as Russia is not a reciprocating state for support purposes. Later in 2012 the Applicant commenced proceedings in the North Carolina courts seeking a variation of child support. She then obtained an order in the courts of North Carolina on September 24, 2013 which required the Respondent to pay arrears of approximately $65,000.

That decision was successfully appealed by the Respondent and the decision below was set aside entirely on November 18, 2014. That was based on the conclusion that the North Carolina court had no jurisdiction to modify the Russian order, based on the legislation in North Carolina. [ 5 ] A.M. turned 18 on [omitted for publication], 2013 and as such the Respondent’s child support obligations under the Russian order ended. [ 6 ] In January 2015 the applicant initiated these proceedings for child support under legislation in North Carolina which is analogous to the ISOA in British Columbia.

The documents in support of the application were filed in this court on July 3, 2015. Issues 1. Does this Court have jurisdiction to vary the Russian order for child support? 2. Does this Court have jurisdiction to make an original order for child support? Variation of the Russian Order [ 7 ] The BC Court of Appeal has said in Virani v. Virani, 2006 BCCA 63 , that BC courts have no jurisdiction to vary corollary relief contained in a foreign divorce order. However, it is not apparent on the face of the Russian order that it is a divorce order.

The Order itself does not contain any reference to a divorce or divorce proceedings and appears on its face to be a stand-alone child support order. [ 8 ] However, the ability to vary a foreign order under the ISOA legislation is limited to varying foreign orders that may be registered in BC courts. It is only possible to register foreign orders in BC if the order was made in a reciprocating jurisdiction. Russia is not a reciprocating jurisdiction and, as such, it is not possible to register a Russian order, or in turn, to seek a variation of that order under ISOA .

This follows from the definition of “foreign order” and “support order” in ss. 16 and 21 which state: "foreign order" means (

a) a support order that is made in a reciprocating jurisdiction outside Canada, or (

b) a variation of a support order if the variation is made in a reciprocating jurisdiction outside Canada, but does not include a provisional order or a provisional variation order. "support order" means a support order as defined in

section 1 that is (

a) made in British Columbia, or (

b) made in a reciprocating jurisdiction but does not include a provisional order or a provisional variation order. As such, this Court has is no jurisdiction to vary the Russian order.

[ 9 ] In any event, it does not appear on the face of the ISOA application documents before the Court that the Applicant is seeking to vary the Russian order but instead is seeking a new order for child support. Jurisdiction to make an original child support order [ 10 ] The Court has jurisdiction to make a child support order where, at the time of making the application, the child is a “child” as defined in the Family Law Act (“ FLA ”).

The definition of child in s. 146 of the FLA states: "child" includes a person who is 19 years of age or older and unable, because of illness, disability or another reason, to obtain the necessaries of life or withdraw from the charge of his or her parents or guardians; [ 11 ] That definition of a child typically will include a child over the age of majority who is in full time attendance at university. Jurisdiction will not be lost by virtue of the application being brought after the child has reached the age of 19, provided the child is attending post-secondary education on a full time basis: de Rooy v.

Bergstrom, 2010 BCCA 5 . [ 12 ] Where an applicant resident outside of BC applies for a child support order in BC the applicable legislation is the ISOA .

Section 12 of the ISOA states: Application of laws for child's and claimant's support 12

(1) In determining entitlement to support for a child, the British Columbia court must, (

a) subject to paragraph (b), apply the law of British Columbia, and (

b) if there is no entitlement to support for the child under the law of British Columbia, apply the law of the jurisdiction in which the child habitually resides.

(2) In determining the amount of support to be paid for a child, the British Columbia court must apply the law of British Columbia.

(3) In determining the entitlement to and amount of support for a claimant, the British Columbia court must, (

a) subject to paragraph (b), apply the law of British Columbia, and (

b) if the claimant is not entitled to support under the law of British Columbia, apply the law of the jurisdiction in which the claimant and the respondent last maintained a common habitual residence. [ 13 ]

Section 13 states that the court has discretion to make or refuse to make an order for child support or to adjourn the hearing to a specific date, with or without making an interim support order. Thus, a child support order under ISOA is discretionary rather than mandatory. [ 14 ] Territorial competence is also governed by Court Jurisdiction and Proceedings Transfer Act (“ CJPTA ”).

Section 11 of that Act provides for discretion to exercise territorial competence or to decline to exercise. It states at

section 11: Discretion as to the exercise of territorial competence 11

(1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding.

(2) A court, in deciding the question of whether it or a court outside British Columbia is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including (

a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum, (

b) the law to be applied to issues in the proceeding, (

c) the desirability of avoiding multiplicity of legal proceedings, (

d) the desirability of avoiding conflicting decisions in different courts, (

e) the enforcement of an eventual judgment, and (

f) the fair and efficient working of the Canadian legal system as a whole. [ 15 ] In the absence of express statutory language rendering the ISOA inapplicable, ISOA is mandatory: Cokherham v. Hanc, 2014 BCSC 2432 . [ 16 ] On the face of it there is jurisdiction to make an original support order under s. 12 of the ISOA .

That in turn references the law of child support in BC, which is expressed in the FLA and the child support guidelines. [ 17 ] Although the Respondent urges that I exercise my discretion to not exercise territorial competence due to the existence of proceedings in Russian, I do not see those proceedings as determinative. Some of the factors that I have considered in that regard are: 1. That order was made many years ago, when A.M. was 3 years old. Much has changed since then.

2. The order has essentially ended, in so far as it created an obligation to pay child support until A.M. turned 18. That date passed on [omitted for publication], 2013 and as such there are no ongoing child support obligations with respect to that order. 3. Neither party has resided in Russia for many years. 4. The Russian Order and any possible future order for child support made in the Russian courts is not registrable nor enforceable in BC as Russia is not a reciprocating jurisdiction. [ 18 ] Furthermore, based on s. 11 of the CJPTA , several factors weigh in favour of my exercising territorial competence.

Those factors are: 1. The comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum: Russia is not a convenient forum for either of the parties. (

b) The law to be applied to issues in the proceeding: ISOA indicates that BC law should be applied. (

c) The desirability of avoiding multiplicity of legal proceedings: In this case the Russian order has lapsed and there are effectively no other live proceedings which would create a “multiplicity”. The Applicant has indicated that she intends to pursue the matter in Russia if she is unsuccessful in this application but she has confirmed that she has not yet done so. In any event, the utility of proceeding in Russia is questionable given that any order made there would not be enforceable in BC. (

d) The desirability of avoiding conflicting decisions in different courts: Any new order in this Court would not conflict with the Russian order. That order lapsed on [omitted for publication], 2013 and any order made in this Court would not cover a period of time covered by that order. Thus there would be no conflict between decisions. (

e) The enforcement of an eventual judgment: A Russian Order would not be enforceable in BC, the residence of the payor, which weighs in favour of BC proceedings. (

f) The fair and efficient working of the Canadian legal system as a whole: Canada and BC are signatories to the ISOA treaties which create a framework for resolving these disputes between signatory states and provinces. The Applicant has properly followed the process and it is only fair and efficient that she be able to have her claim adjudicated in BC based on the ISOA process. [ 19 ] In addition to the arguments set out above the Respondent also argues that the Applicant is forum shopping in advancing her claim under ISOA . However, the file does not support that.

The Applicant attempted to register the Russian Order in the courts of BC for enforcement purposes. When that was not successful she pursued the matter in the courts in North Carolina where she resides. She was initially successful there until the matter was overturned on appeal. She then took steps to obtain an order in BC under ISOA legislation, which is the matter now before this court.

These are all logical steps she has taken and not indicative of forum shopping. [ 20 ] Given my findings above, and the fact that under BC law A.M. still qualifies for child support, I will exercise my discretion to exercise territorial competence and act under the ISOA . [ 21 ] I do note however, that I do not see this Court as having jurisdiction to consider child support any earlier than [omitted for publication], 2013, as that would create a conflict with the Russian order, for which there is no jurisdiction for this court to vary. [ 22 ] The parties will need to set another hearing date for the hearing of the Applicant’s ISO application now that the jurisdiction issue has been determined.

The Honourable Judge R.P. McQuillan Provincial Court of British Columbia