C.H.U. v. H.K.U., 2020 BCPC 262

Citation: C.H.U. v. H.K.U. 2020 BCPC 262 Date: 20201123 File No: F7421 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.H.U. APPLICANT AND: H.K.U. RESPONDENT RULING ON APPLICATION OF THE HONOURABLE JUDGE P. CHEN Counsel for the Applicant: Y.C. Un Counsel for the Respondent: W. Leung and D. Sue-A-Quan Place of Hearing: Richmond , B.C. Dates of Hearing: October 26, 27, 28, 30 and November 13, 2020 Date of Judgment: November 23, 2020

[ 1 ] The Applicant, C.H.U., also known as A.U., seeks a finding that, between November 1, 2013 and April 30, 2020, between the ages of 21 and 27, he was a child of the marriage within the meaning of

Part 7 of the Family Law Act , SBC 2011, c. 25 , and on the basis of such a finding, that he was entitled to retroactive child support from his father, the Respondent, H.K.U. During all but six months of this period, the Applicant was a full-time student enrolled in chemistry studies at the University of British Columbia.

From November 2013 to May 2016, the Applicant was enrolled in the Bachelor’s degree program, and from January 2017 to April 2020, he was studying full-time in a Master’s degree program. [ 2 ] On the same week that this hearing was to begin, a continuation of a trial under the Youth Criminal Justice Act was also scheduled before me for the entire week. Due to the continuation of the criminal trial taking priority, the hearing was adjourned to new dates on October 26–28 and 30, 2020. On October 16, 2020, Ms. Leung and Mr. Sue-A-Quan appeared by telephone to advise that they were the new counsel for the Respondent.

They requested that they be permitted to make a pre-trial challenge to this Court’s jurisdiction on the basis that the issues in this hearing have already been ruled on by courts in Macau. The Applicant opposed that application. After some consideration, I agreed to the Respondent’s request and allowed the pre-trial application challenging this Court’s jurisdiction to proceed. The first three days of hearing that had been scheduled were taken up by submissions by Respondent’s counsel.

Applicant’s counsel commenced his submissions on October 30 and a further date of November 13 was set for the conclusion of submissions. [ 3 ] This is my ruling on the Respondent’s pre-trial application. HISTORICAL BACKGROUND OF RELATIONSHIP AND RESIDENCE [ 4 ] Respondent, H.K.U., and L.C.S. were married in Macau in 1989. Their two children, sons Y.C.U. (hereinafter referred to as “J.”) and C.H.U. (hereinafter referred to as “A.” or “the Applicant”) were born in 1991 and 1992 respectively. The family resided in Macau until they immigrated to Canada in 1996 when J. was 5 and A. was 4.

After qualifying for Canadian citizenship, the family moved back to Macau in 2000. The Respondent and Ms. L.C.S. separated in 2004 and divorce proceedings commenced in Macau in 2005. The divorce was not pronounced by the Macau court until 2010 and further litigation proceedings respecting division of family property, according to Ms. L.C.S.’s affidavit, were not concluded until 2015. [ 5 ] During the Macau divorce proceedings, an issue arose regarding the wishes of Ms. L.C.S. and the children, for J. and A., to return to Canada for their education, which was opposed by the Respondent father.

The Macau court ordered that the children be permitted to return to Canada. J. returned to Canada in 2006 when he was 14 or 15 and the Applicant, A., returned to Canada in 2008 when he was 15 or 16. Both J. and A. have resided in British Columbia since their return to this country and are both Canadian citizens. [ 6 ] The Applicant submitted that even after the family returned to Macau, it was always the intention of the entire family to eventually make their home in Canada.

Their mother, L.C.S., did not return to Canada until last year but, according to the Applicant, she was delayed by health problems which required two surgeries in Macau for cancer in 2009 and 2011. [ 7 ] The Respondent is a Canadian citizen, residing mainly in Macau, but has maintained his Canadian residency status by filing Canadian income tax annually. HISTORY OF FAMILY LITIGATION IN MACAU [ 8 ] Ms. L.C.S. obtained an order from the Macau court for retroactive and ongoing child support for both children in 2009, some four years after the Respondent commenced divorce proceedings there.

That order provided that the Respondent pay child support until the children attained the age of majority, which in Macau is 18 years of age. [ 9 ] The child support ordered in the divorce proceedings expired upon the children attaining the age of majority in 2010. [ 10 ] In October 2013, J. and A. filed a joint application in the Macau courts (“the 2013 Macau application”) against both parents, for retroactive child support for themselves as adult children, for the period from July 2010 to November 1, 2013.

This application resulted in the Macau court issuing an order dated July 7, 2017, for lump sum retroactive child support for both children. The amount ordered to be paid by the Respondent for the Applicant, A., was $74,682.59. The mother, Ms.

L.C.S., was also ordered to pay support for A. in the amount of $32,006.83. [ 11 ] Appeals of the July 7, 2017, order by both the Respondent father and the children were dismissed by the Macau Court of Appeal on June 7, 2018. [ 12 ] On September 26, 2016, both J. and A. filed a further joint application in the Macau courts (“the 2016 Macau application”) seeking child support from November 1, 2013. The application by J. was for retroactive child support from November 1, 2013, to August 31, 2016. The application by A. was for child support from November 1, 2013, to the completion of his Master’s degree.

That is the same relief now sought in the current application, in the case at bar. A. completed his Master’s program in April 2020. [ 13 ] On March 6, 2017, the Macau Court of First Instance issued a preliminary decision in the 2016 Macau application, ruling that the court could only consider maintenance covering the period after the filing of the application on September 26,

Article 1847 of the Macau Civil Code , cited as the basis for this preliminary decision, provided that: Maintenance fee shall be provided from the time the lawsuit is instituted. If it has been decided by the Court or through agreement, it shall be provided from the time when the maintenance obligor postpones payment, without prejudice to the application of

Article 2103.

[ 14 ] In reliance on

Article 1847, the preliminary decision held that maintenance for any period prior to the action being brought was not recoverable. Accordingly, the whole of J.’s application was rendered moot and declared “invalid”.

The Court of First Instance went on to consider that portion of A.’s application for child support covering the period after September 26, 2016, up to the completion of his Master’s program. [ 15 ] The March 6, 2017, preliminary decision in the 2016 Macau application appears to be inconsistent with the Macau Court’s later ruling of July 7, 2017, on the children’s 2013 Macau application, which was only for retroactive support. That ruling, made 4 months after the preliminary decision in the 2016 Macau application, ordered retroactive support covering the period from July 2010 to November 1, 2013.

The Macau Court of Appeal, on June 17, 2018, dismissed appeals of the July 7, 2017, ruling in the 2013 Macau application that were filed by both the respondent father and the applicant sons. That appeal decision was made some 15 months after the Macau Court of First Instance’s preliminary ruling on March 6, 2017. Though I was not provided with the Reasons for Judgment for either the Macau Court of First Instance or the Macau Court of Appeal with respect to the 2013 judgments, I find it unlikely that

Article 1847 was considered by either court in their rulings on the 2013 Macau application. [ 16 ] The final decision of the Macau Court of First Instance with respect to A.’s application filed September 26, 2016, was rendered on November 5, 2018, and dismissed his application in its entirety. [ 17 ] A.’s appeal of the decision of the Macau Court of First Instance was dismissed by the Macau Court of Appeal on July 11, 2019. JURISDICTION [ 18 ] The issues that have been raised with respect to jurisdiction are: attornment, forum non conveniens and res judicata . [ 19 ] Division 7 of the Family Law Act addresses the issue of extra-provincial matters respecting parenting arrangements.

Section 75 sets out the requirements that must be met before a court in British Columbia will recognize an extra-provincial order regarding guardianship, parenting arrangements and contact with the child. However, the Family Law Act does not address the jurisdiction of a British Columbia court to determine claims related to child support, after an extra-provincial order has been made. In this pre-trial application, the Respondents submit that, on the issue of jurisdiction, this court must look to the Court Jurisdiction and Proceedings Transfer Act , SBC 2003, c. 28 (“the CJPTA ”). CJPTA , FORUM NON CONVENIENS AND ATTORNMENT [ 20 ]

Section 3 of the CJPTA states: A court has territorial competence in a proceeding that is brought against a person only if (

a) that person is the plaintiff in another proceeding in the court to which the proceeding in question is a counterclaim, (

b) during the course of the proceeding that person submits to the court's jurisdiction, (

c) there is an agreement between the plaintiff and that person to the effect that the court has jurisdiction in the proceeding, (

d) that person is ordinarily resident in British Columbia at the time of the commencement of the proceeding, or (

e) there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based. [ 21 ] The Application was filed on July 31, 2019. On October 28, 2019, the Respondent filed his Reply and his financial statement. On November 28, 2019, the Applicant and Respondent’s counsel at that time, Mr. Guo, appeared in our family list court. The parties were adjourned from there to the Judicial Case Manager to set dates for the hearing.

With the agreement of both counsel, five days of trial were set, with the first four days being October 13-16, 2020. [ 22 ] On September 10, 2020, the Respondent filed applications to appear at the hearing by video from Macau and, in the alternative, to adjourn the trial. Submissions on the Respondent’s application were heard on September 30, 2020. My ruling dismissing that application was pronounced on September 30, 2020, after submissions concluded. [ 23 ] On October 13, 2020, Mr.

Guo appeared for the Respondent on what was to be the first day of trial, without his client, who had decided not to attend the hearing, and was still in Macau. Because a trial continuation on a youth criminal matter had been scheduled for the same dates as this hearing, all four days were adjourned to the Judicial Case Manager to set new dates. New dates of October 26, 27, 28 and 30 were set that day. I was not advised that the Respondent had retained new counsel – Ms. Leung and Mr.

Sue-A-Quan – and that he was seeking to challenge this Court’s jurisdiction to hear this matter, until October 16, 2020. [ 24 ] In a parallel proceeding in the Provincial Court, J. is the Applicant in an action filed against the Respondent, seeking basically the same relief as A. is seeking in the case at bar.

The Respondent filed a Reply and has participated in three days of trial before another judge of this Court, with two days of continuation set for December 2020. [ 25 ] I am satisfied that the Respondent, through his conduct, has attorned to the jurisdiction of this Court, sufficient to satisfy what the CJPTA refers to as “territorial competence” to proceed with the hearing of this application. In addition, I find that there is a real and substantial connection between British Columbia and the facts on which the proceeding is based.

The Applicant moved to British Columbia in 2008 when he was 15 or 16 and has maintained a residence here since then. The issues at trial will include: whether the Applicant was still a child during the relevant period, whether he was entitled to retroactive child support and, if he was, the amount of maintenance he was entitled to from the Respondent. [ 26 ] In any event, the Respondent has conceded in its written submissions that this Court has territorial competence to hear this action.

FORUM NON CONVENIENS AND THE EXERCISE OF DISCRETION UNDER

SECTION 11 OF THE CJPTA [27] However, notwithstanding that a Court has territorial competence, the Respondent submits that this Court should exercise itsdiscretion to decline jurisdiction under the doctrine of “forum non conveniens”. Attornment to the jurisdiction of this Court does notpreclude the Respondent from raising the issue of forum non conveniens. The doctrine of forum non conveniens has been codified in s. 11of the CJPTA:

(1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorialcompetence 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 aproceeding, 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 anyalternative 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, (

d) the enforcement of an eventual judgment, and (

e) the fair and efficient working of the Canadian legal system as a whole. [28] S. 11(1) of the CJPTA is phrased in the present tense.

It contemplates consideration of whether “a court of another state is a moreappropriate forum in which to hear the proceeding” (emphasis added). [29] In my view, the forum non conveniens doctrine is applicable in situations where proceedings either are proceeding, are intendedto proceed, or could proceed, in another jurisdiction outside of British Columbia in which case, the British Columbia court couldexercise its discretion under s. 11 to decline to exercise its territorial competence, by finding that the court in the other jurisdiction wasthe more appropriate forum to hear this proceeding. [30] In my view, s. 11 of the CJPTA is not applicable to the facts in the case at bar.

There is no court outside of British Columbia thatcould hear this proceeding.

The case in Macau is concluded at both the trial and appellate level. [31] In the event I am incorrect in this analysis, I would not exercise my discretion to decline jurisdiction pursuant to s. 11. [32] The onus for establishing that this Court should exercise its discretion to decline jurisdiction, despite having territorialcompetence, is on the party seeking such a finding, i.e. on the Respondent. [33] If the matters in Macau had not been concluded, I would consider whether the courts there were a more appropriate forum to hearthis matter, considering the factors in s. 11 of the CJPTA and any other relevant factors. [34] In Price v.

Srivastva, 2020 BCSC 1109 , the father sought a stay of the proceedings in British Columbia with respect toparenting arrangements, on the basis of a final order having been made in Washington State with respect to divorce and parenting, and onthe basis of on-going family proceedings there. [35] Marzari, J. rejected the application for a stay of the proceedings stating, with regard to the forum non conveniens factors listed ins. 11 of the CJPTA, that: These factors are not exhaustive.

In determining whether to decline jurisdiction, the court can consider other relevant factors such as thepurposes set out in S. 73 of the FLA, including the best interest of the children: Shortbridge-Tsuchiya at para. 61. [36] At paragraph 80, Marzari, J. stated: For both courts, the question is not what is more favourable to one party versus the other, but what is in the best interests of the children.Regardless of the conduct of the parties, the legislation and the jurisprudence in British Columbia is clear that the interests of thechildren are best served by proceedings in the jurisdiction where the children live. [37] In D.L. v.

M.Y., 2019 BCSC 881 , Sharma, J., in her analysis under s. 11 of the CJPTA, decided that China was the moreappropriate forum for issues of spousal support and property division while British Columbia was the more appropriate jurisdiction forparenting issues including the issue of child support.

At paragraph 90: With respect to child support, in my view, British Columbia is the more appropriate jurisdiction, because it is best to determine childsupport in the jurisdiction where the children are residing. [38] Conversely, where the child resided in another jurisdiction, British Columbia courts have generally declined jurisdiction infavour of the jurisdiction where the child is ordinarily resident. Ovchinnikova v.

Stevens, 2018 BCSC 951 , Monteiro v.Monteiro, 2015 BCSC 1543 . [39] The residence of the child is generally given great weight in deciding the issue of forum non conveniens in matters of childsupport, because evidence regarding the children is more likely to be found in the location where the child resides.

[40] Accordingly, had the matters in Macau not been concluded, I would have found that British Columbia was the more appropriateforum. I would not have exercised my discretion to decline jurisdiction in favour of the Macau courts. RES JUDICATA [41] What is the effect of the matters in Macau having been concluded with respect to the issue of jurisdiction? In my view, the issueof jurisdiction, on the facts of this case, is more properly framed under the doctrine of “res judicata”. [42] In Tylon Steepe Homes Ltd. v.

Pont, 2011 BCSC 385, Ballance, J. explained at paragraph 53: Res judicata takes two distinct forms: issue estoppel and cause of action estoppel, indicating that there can be estoppel with respect to theentire cause or a discrete issue(s). Much of the judicial analyses of the doctrine spring from a scenario where it is a plaintiff who isattempting to relitigate a matter; however, the principles apply, with obvious modifications, to the attempted recycling of a defence. [43] In Stav v.

Stav, 2014 BCSC 188 , Smith, J. discussed the issue of cause of action estoppel at paragraphs 34-36: [34] In Reliable Mortgages Investment Corp v. Chan, 2014 BCCA 14 [Reliable Mortgages], the Court of Appeal very recently said atparagraph 35: The principle of res judicata is founded upon two broad principles of public policy: (1) the state has an interest that there should be anend to litigation; and (2) no individual should be tried more than once for the same cause, often stated as no one should be “twicevexed”. Angle v.

M.N.R. [1975] 2 S.C.R. 24. [35] The form of res judicata known as cause of action estoppel requires parties bring forward all claims and defences with respect tothe cause of action in a proceeding. If they fail to do so, they will be prevented from raising them in subsequent proceedings. The court inReliable Mortgages adopted at para. 45 the following statement of Cromwell J.A. (as he then was) in Hoque v. Montreal Trust Companyof Canada (1997, 1997 NSCA 153 , 162 N.S.R. (2d) 321, [1997] N.S.J.

No 430 (N.S.C.A.): My review of these authorities shows that while there are some very broad statements that all matters which could have been raised arebarred under the principle of cause of action estoppel, none of the cases actually demonstrates this broad principle. In each case, the issuewas whether the party should have raised the point now asserted in the second action. [Emphasis in original] [36] The traditional criteria for cause of action estoppel were summarized in Cliffs Over Maple Bay (Re), 2011 BCCA 180 at para.28: 1.

There must be a final decision of a court of competent jurisdiction in the prior action [the requirement of “finality”]; 2. The parties to the subsequent litigation must have been parties to or in privy with the parties to the prior action [the requirementof “mutuality”]; 3. The cause of action and the prior action must not be separate and distinct; and 4.

The basis of the cause of action and the subsequent action was argued or could have been argued in the prior action if theparties had exercised reasonable diligence. [Emphasis in original] THE PERIOD FROM NOVEMBER 1, 2013 TO SEPTEMBER 26, 2016 [44] In the case at bar, the Applicant is seeking retroactive child support for the period from November 1, 2013, to April 30, 2020. [45] The Macau courts, relying on

Article 1847 of the Macau Civil Code, held that the Macau courts were precluded from consideringchild support for any period prior to the filing of the Macau application on September 26, 2016. As a result, the Macau courts onlyconsidered the Applicant’s entitlement to child support for the period after September 26, 2016. [46] With respect to the period from November 1, 2013, to September 26, 2016, “the question” before this Court is whether theApplicant was still a child under the FLA that was entitled to child support.

That question was not considered by the Macau courts for theperiod from November 1, 2013, to September 26, 2016. Accordingly, for that period, this application is not barred by reason of issueestoppel. [47] With respect to cause of action estoppel, the Applicant was no longer able to argue the basis of his action for child support duringthe period from November 1, 2013, to September 26, 2016, once the Macau court decided that it was precluded from any considerationof that period of time by reason of

Article 1847. [48] I find, with respect to the period from November 1, 2013, to September 26, 2016, that the Applicant is not barred by the doctrineof res judicata, under either issue estoppel or cause of action estoppel, from bringing this action before this Court. THE PERIOD FROM SEPTEMBER 26, 2016, TO APRIL 30, 2020 [49] With respect to the period from September 26, 2016, to April 30, 2020, the Macau courts did hear evidence regarding theApplicant’s entitlement to child support. The Applicant and the Respondent had a full trial on the issue of child support for the periodafter September 26, 2016.

[ 50 ] The Macau Court of First Instance concluded that the Applicant was not entitled to child support for the period after September 26, 2016, in its final ruling of November 5, 2018. The Applicant’s appeal of the final ruling was dismissed by the Macau Court of Appeal on July 11, 2019. [ 51 ] The remaining jurisdictional issue is whether this Court should recognize the Macau Court of First Instance’s final ruling and the Macau Court of Appeal’s decision upholding that final ruling with respect to the period after September 26, 2016.

Is the Applicant’s application for retroactive child support barred by the doctrine of res judicata? CASE AUTHORITIES REGARDING CHILD SUPPORT FOR ADULT CHILDREN AFTER PREVIOUS FOREIGN JUDGMENTS [ 52 ] In Simons v.

Crow , 2020 ONSC 5940 , the Ontario Superior Court of Justice ruled on the application of the respondent father to dismiss the mother’s application for custody, specified parenting time and child support for 3 adult children, aged 24 and 23, on the basis lack of jurisdiction. [ 53 ] The parties were both Canadian citizens who married in 1993, moved to Bermuda in 1998, separated there in 2003 and obtained a divorce from the Supreme Court of Bermuda in 2006. [ 54 ] The mother moved with the children to Ontario in 2008, after which they resided approximately 2/3 of the time with the mother and 1/3 of the time with the father in a rented home he had maintained in Ontario.

That arrangement lasted until approximately 2018. [ 55 ] Over the years after separation, parenting and financial issues were litigated in the Supreme Court of Bermuda, resulting in the following orders: • June 22, 2007 order regarding parenting • March 6, 2008 order regarding parenting • May 23, 2008 order regarding parenting • April 17, 2009 order regarding property division and child support • November 16, 2010 order reducing the father’s child support • August 12, 2019 order terminating child support for one child and reducing child support for the other 2 children to $800.00 and $820.00 per month respectively [ 56 ] The mother’s application in Ontario was filed on October 30, 2019. [ 57 ] At the time of the Bale, J.’s decision, the August 12, 2019, Bermuda order was being enforced through the Family Responsibility Office , had not been appealed and remained in force. [ 58 ] Bale, J. ruled in favour of the applicant father’s application to dismiss the application, finding that the court lacked territorial competence.

At paragraph 71, Bale, J. stated: As explained by the Supreme Court of Canada, the real and substantial connection test permits a general and flexible application. No factor need be given more weight than any other, but there is no prohibition against finding some factors to be more influential than others.

While in normal circumstances the primary residence of the “children” and the recipient parent would weigh heavily in favour of establishing jurisdiction simpliciter , on the specific facts of this case, I am not satisfied that the Applicant mother has discharged the burden of establishing the court’s territorial competence in this matter.

The strength of the factors which establish significant prejudice to the Respondent father if this matter is permitted to be (re)litigated in Ontario, and the lack of prejudice to the mother in awaiting a material change (if any) before returning this matter through the available procedure under the Interjurisdictional Support Orders Act , and the strong need for comity in this matter demand respect for and recognition of the existing Order of the Supreme Court of Bermuda. In reaching this conclusion I am guided by the factual similarities and reasoning of Goodman J. in Sun v. Guilfoile .

I adopt his comments: “Where a valid and subsisting foreign court order provides for support, there is no jurisdiction in Ontario to proceed with an originating application for support under s.33. Such an application is nothing more than a disguised variation application”: supra , at para. 55.

There are no legitimate custody and access claim before this court which warrant a variation from this general practice. [ 59 ] In the case at bar, the Respondent has conceded, and I have found, that this court has territorial competence. [ 60 ] In Simons , while finding the issue of forum non conveniens to be moot, the litigation in Bermuda having been concluded with no appeal, Bale J. also ruled that, if she were wrong with respect to the issue of territorial competence, she would also find Bermuda to be the more appropriate forum for much the same reasons as her ruling on territorial competence. [ 61 ] The factor that appeared to weigh most heavily in Bale J.’s reasons on both jurisdiction simpliciter and forum non conveniens was the similarity of Bermuda’s legislation and that of Ontario’s with respect to the issues in the mother’s application.

At paragraph 57, Bale J. stated: At the outset, it is important to note that the Judgment of Wheatley J. of the Supreme Court of Bermuda dated August 12, 2019 is Final. The matter was commenced, litigated, and judgment was rendered before the Applicant made any objection as to forum, and before she commenced any proceedings in Ontario. This is a critical feature to the analysis: all of the jurisprudence brought to the attention of this court pertained to competing actions in two jurisdictions wherein either: (

a) the action in the foreign jurisdiction did not complete; or (

b) the concluded action in the foreign jurisdiction did not consider the issues brought before the Ontario court. This causes the court obvious concern as to a potential abuse of process. The child support questions which were decided by Wheatley J. were noted in the

headnote to the decision as “Cessation and/or variation of child maintenance; Change in financial circumstances; Children with special needs; Definition of tertiary education; Consideration of requirements for children being enrolled in tertiary education on a full-time basis”. The 25-page written decision which follows demonstrates a legal framework and analysis strikingly familiar to child support variation motions heard in this court under the Divorce Act , or the Family Law Act .

The same questions that would require judicial determination in relation to the Applicant mother’s Ontario action were considered and have already been decided (quite recently) by the Supreme Court of Bermuda. With some minor changes in phraseology, the decision of Stoneham J. could easily be mistaken for the decision of an experienced Ontario Superior Court of Justice judge considering a child support variation motion under the Divorce Act or the FLA .

The Applicant mother did not object to the forum, participated fully in that hearing, and did not appeal the decision. [ 62 ] At paragraph 77, Bale, J. listed a number of additional factors weighing in favour of Bermuda to be the more convenient forum. At subparagraph h., Bale J. stated: I cannot accept that declining jurisdiction in Ontario would deprive the Applicant of a legitimate judicial advantage. There is no support for any position that Bermuda child support law falls below Canadian standards.

To the contrary, the Bermuda Matrimonial Causes Act appears more lenient towards payment of child support for adult children in that “full-time” attendance at a post-secondary institution is not required as it is under s. 31(1) (

b) of the Family Law Act in establishing entitlement to child support. This distinction appears to have worked in favour of the Applicant mother in the proceedings before Wheatley J. She points to no deficiency in the judgment or dissatisfaction with the result. This feature favours Bermuda as the more appropriate forum. [ 63 ] Other factors considered by Bale, J. in her decision to decline jurisdiction in favour of the Bermuda court included the fact that Bermuda had a common-law regime of law and was a reciprocating jurisdiction with respect to enforcement of family court orders. [ 64 ] In Nijjar v.

Dhaliwal , 2018 BCSC 1134 , the Respondent father sought a ruling that the mother’s application for retroactive and prospective child support was barred by res judicata , on the basis of a previous ruling by a court in India, dismissing the mother’s application for child support when she failed to appear in court for the hearing. [ 65 ] Branch, J. stated at paragraph 4: I made it quite clear to the respondent that if he were going to make submissions that an Indian order could properly operate as res judicata in a Canadian court, I would need proper evidence from an expert on Indian law to explain the effect of the order. [ 66 ] The respondent father provided a letter from a retired Indian judge but Branch, J. held that the court could not accept that letter as an expert opinion on Indian Law with respect to child support. [ 67 ] Branch, J. adopted the

summary of res judicata summarized by Ballance, J. at paragraphs 55 and 56 of Tylon Steepe Homes : [55] The three-fold requirements which must be established in order to successfully invoke issue estoppel are: (1) that the same question has been decided and was fundamental, as opposed to collateral or incidental, to the decision; (2) that the decision in the first proceeding said to create the estoppel was final; and (3) that the parties to the first proceeding or their privies are the same persons as the parties, or their privies, to the subsequent proceeding: (See Angle; Grdic and Danyluk. ) [56] The "same question" test is a crucial element and a focal point of both types of estoppel under the res judicata umbrella. [ 68 ] Branch, J. dismissed the respondent father’s res judicata challenge, stating at paragraph 13: I find that the very first requirement is not met.

The Indian proceeding was presumably seeking to enforce rights under Indian law. The present proceeding is seeking rights under statutes applicable to British Columbia. I have no basis upon which to conclude that the matters involve the “same questions”. [ 69 ] At paragraph 18, Branch, J. stated: Finally, I note that even if all of the elements of res judicata did apply, the court always retains a residual discretion to decline to apply it if doing so would cause unfairness in the particular case. Tylon Steepe Homes at para. 54. [ 70 ] In Warren v.

Warren , 2018 BCSC 1285 , the parties obtained a divorce in British Columbia in 1992 that ordered child support in the amount of $600 per month for two children, then aged 7 and 9. Post-dated cheques for the first 12 months of child support were honoured but no further payments were made after that until 2006 as a result of attachment proceedings. The respondent father moved to Fiji in 1992, remarried in 1995 and had three children from that marriage.

In 2007 the respondent father moved with his family to New Zealand. [ 71 ] In 2012, the respondent father applied to the Family Court in New Zealand for a complete discharge of his child support obligations. The New Zealand court reduced the amount of arrears of child support from approximately $87,000.00 CAD to $10,000.00 NZD. Payments under the New Zealand order reduced the respondent father’s balance of arrears to approximately $6,000.00. [ 72 ] Funt, J. considered the law regarding child support in New Zealand by reviewing the Reasons for Judgment of the New Zealand Court.

Funt, J. concluded from those Reasons for Judgment that New Zealand legislation, related to the reduction of the respondent father’s past child support obligations, was fundamentally different from Canadian Law. [ 73 ] Funt, J. refused to recognize the New Zealand order and, with some minor revisions, reinstated the order of Finch, J. (as he then

was). At paragraphs 67 and 68, Funt, J. stated: The signal difference between Canadian law and New Zealand law is that New Zealand law does not focus on child support as the rightof the child. In the Reasons for Judgment, the New Zealand Court states: I am satisfied that, in the absence of evidence about the children’s present position and their needs and, in the absence of informationabout Ms. Warren’s present financial position and her needs, that I must simply look to the reality of Mr. Warren’s situation. I considerthat it is necessary to make the orders that are sought today.

With respect, despite judicial comity, I cannot follow or recognize the Reasons of the New Zealand Court. I am duty-bound to applyCanadian law, which on the evidence before me, gives rise to a different result. THE LAW REGARDING CHILD SUPPORT APPLICATIONS FOR ADULT CHILDREN PURSUING POST-SECONDARYEDUCATION IN BRITISH COLUMBIA [74] In British Columbia, the case authorities on the entitlement of an adult child to child support revolve around the issue of whetherthe adult child continues to be a “child” within the meaning of the applicable legislation. [75] Neufeld v.

Neufeld, 2005 BCCA 7 is the leading authority with respect to applications for child support for adult childrencontinuing to pursue an education. [76] At paragraphs 18, 19 and 20, Levine J.A. stated for the unanimous court: [18] The pursuit of education necessary to equip a child with a career qualifies as “other cause” for continuing dependence of a childof or over the age of majority: Martin v. Martin (1998), (BC CA), 26 B.C.L.R. (2d) 390 at 393 (C.A.).

In determiningwhether a child pursuing an education is unable to withdraw from her parent’s charge or obtain the necessaries of life a court mustconsider the surrounding circumstances; mere attendance at an educational institution is not sufficient: Ciardullo v. Ciardullo (1995), 15 R.F.L. (4th) at para. 17 (B.C.S.C.). [19] A list of relevant circumstances was formulated by Master Joyce (as he then was) in Farden v. Farden (1993), (BC SC), 48 R.F.L. (3d) 60 at para. 15 (B.C.S.C.) and referred to by this Court in Darlington v. Darlington (1997), (BC CA), 32 R.F.L. (4th) 406 at para. 14 (B.C.C.A.).

These factors were considered by the chambers judge, who noted that inDarlington, this Court made it clear that there does not have to be evidence on all of the factors in order to establish that a child is a“child of the marriage” because she is pursuing an education.

Nor should this list be considered to be exhaustive of the relevant factors. [20] The factors outlined in Farden are: 1) Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies; 2) Whether or not the child has applied for or is eligible for student loans or other financial assistance; 3) The career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to collegebecause there is nothing better to do; 4) The ability of the child to contribute to his own support through part-time employment; 5) The age of the child; 6) The child’s past academic performance, whether the child is demonstrating success in the chosen course of studies; 7) What plans the parents made for the education of their children, particularly where those plans were made during cohabitation; 8) At least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated arelationship from the parent from whom support is sought. [77] At paragraphs 29 and 30, Levine, J.A. discussed the law relating to pursuing a second degree, e.g. a post-bachelor universitydegree: [29] There is no general principle that a child seeking a second degree does not qualify for child support.

As stated by Freeman J.A. for the Nova Scotia Court of Appeal in Martell v. Height (1994), 1994 NSCA 65 , 3 R.F.L. (4th) 104 at para. 8: There is no arbitrary cut-off point based either on age or scholastic achievement, although as these increase the onus of provingdependency grows heavier. See also: Jamieson v.

Jamieson (1995), (NB CA), 14 R.F.L. (4th) 354 at para. 23 (N.B.C.A.). [30] The jurisprudence supports the view that there is a wide range of factors to be considered in the determination of whether a childis a “child of the marriage” and that individual factors will be of varying importance in different cases. All of the relevant factors must beconsidered. There is no arbitrary cut-off point based on the number of degrees or the eligibility of the student for financial assistance. [78] In Beninger v.

Beninger, 2010 BCSC 1509, the applicant father sought to end child support payments to his 23-year-old daughterK. who, after completing her undergraduate degree, had been accepted into a Masters of Science program at the London School ofEconomics.

[ 79 ] Fenlon, J. noted at paragraph 14: In Neufeld , the court identified an additional factor, the ability of the parent to continue to support his child beyond a first degree. [ 80 ] Fenlon, J. gave great weight to this factor in her decision to terminate child support to K., stating at paragraph 25: Having considered all of these factors, and in particular the financial circumstances of the parties, I am of the view that these parents do not have the means to continue to support K.

While a parent is expected to make some sacrifices to assist his children with their education, he is not required to live a life of complete austerity in order to do so, particularly in relation to a graduate degree. Nor should a parent be required to jeopardize his or her financial security in retirement. Parents should not have to face the prospect of little or nothing to live on in their old age as a result of funding an adult child’s education. [ 81 ] In Wence v.

Wence , 2015 BCSC 2616 , Gray, J. dismissed a father’s application seeking child support from the mother for a 29 year old son, L., then in his 7 th year of a PhD program in chemistry on the basis that, in 2008 Master Young (as she then was) had ordered that child support payments by the mother would end when the child attained his bachelor’s degree. Master Young’s order was never appealed.

Gray, J. held that the father’s application – being made some 7 years later - was essentially an appeal of Master Young’s order. [ 82 ] The mother had retired in 2010, had no pension and supported herself from the income generated by investments. From 2011 to 2014, the mother’s line 150 income on her income tax returns, ranged from $23,500.00 to $57,500.00 – primarily consisting of dividends, interest and RRSP income. [ 83 ] At paragraph 79, Gray, J. stated: Even if I was wrong in that

interpretation of the Master Young Order, I would conclude that L. is not presently a “child of the marriage” under the Divorce Act , and that he stopped being a “child of the marriage” under the Divorce Act upon completion of his Bachelor’s degree. The most significant factors for that conclusion are L.’s age, which was 22 years of age on completion of his Bachelor’s degree, and the mother’s retirement and the amount of the mother’s income. THE LAW REGARDING ADULT CHILD SUPPORT APPLICATIONS IN MACAU [ 84 ] The Macau Court of First Instance, in its final ruling of November 18, 2018, cited

Article 1735 of the Macau Civil Code in its decision as follows: Pursuant to the provisions of

Article 1735 of the Civil Code “If by the time a child reaches majority or is emancipated, his or her instruction is not yet completed, the obligation referred to in

article 1734 remains insofar that it is reasonable for parents to continue providing such maintenance until its completion.

The first issue to be decided is whether it is reasonable or not to demand one of the parents to keep providing maintenance to an adult child, in this case the Plaintiff, in order for him to complete a master’s program. [ 85 ] The Macau court arrived at the following opinion regarding the economic consequences and benefits of the various levels of academic degree qualifications: In other words, in those countries that ratified the Balogna Treaty and in general terms in other countries as well, higher education is completed when a student obtains an integrated master’s or bachelor’s degree [licenciatura”], depending on the course taken.

Upon completion of higher education – bachelor’s [“licenciatura”] or integrated master’s – there is a different set of academic degrees and levels of instruction, such as specialization courses, post-graduate, master’s or doctorate programs. However, these levels of study – not levels of instruction – are beyond what is considered to be the instruction of an individual in the sense that instruction comprises the acquisition of skills for the practice of a professional activity, in order to be an independent person.

Without prejudice of a better opinion, the relevant criterion shall be grounded on which academic degree allows and enables the access to labor market.

Thus, regardless of the system, the academic degree which enables the access to the labor market is usually the bachelor’s [“licenciatura”] or the integrated master’s program and hence, once the bachelor’s/integrated master’s degree is obtained, professional instruction is completed. [ 86 ] Having arrived at this opinion and without consideration of any “better opinion”, the Macau Court of First Instance concluded: In other words, and without prejudice of a better opinion, we cannot consider the attendance of a master’s or a doctorate program as part of an individual’s instruction process, albeit it may be a way for an individual to deepen his or her knowledge and/or scientific techniques pursuant to his or her academic background. [ 87 ] The Macau Court of First Instance then ruled: To demand parents of young adults to continue to bear the costs with the acquisition of academic degrees when they are already holders of a bachelor’s degree [“licenciatura”], which enables them to practice any professional activity, goes much beyond the spirit [scope] of

Article 1735 of the Civil Code. Therefore, once the situation in these proceedings is not covered by the said legal provision, the Plaintiff’s claims are deemed unfounded and the present action shall be dismissed, which prevents other issues raised to be considered.

[ 88 ] On appeal, the Macau Court of Appeal praised and affirmed the lower court’s decision: To demand that his parents continue to bear the costs of acquiring further academic degrees, when he currently has an academic degree – licentiate – which allows him to carry our professional activities, is over and above the spirit of

Section 1735 of the Civil Code. Therefore, based on details of the proceedings, and in light of cited legal provisions, the claim is deemed groundless, and assessment of other issues raised is deemed irrelevant. [ 89 ] In its additional comments at page 7 of the English translation of its reasons, the Macau Court of Appeal added: With respect to these proceedings, the appellant has more than enough professional qualifications to obtain employment. If he was unable to find employment, it is because he did not want to. It was not for lack of professional qualifications!

In fact, the appellant can and should, as is the case with other persons, start from the bottom. HAS THE “SAME QUESTION” IN THIS APPLICATION ALREADY BEEN DECIDED BY THE COURTS IN MACAU? [ 90 ] During submissions I asked counsel if they could provide English translations of the relevant Macau legislation regarding child support. Neither party was able to provide that.

The onus for establishing that this action is barred by the doctrine of res judicata is on the party seeking such a ruling – the Respondent. [ 91 ] I agree with the Respondent’s submission that the proper legal test is not the application of the law to specific facts in this case.

It requires a comparison between the two legal systems and the laws that govern the issues in the application. [ 92 ] However, in my view, it is not just a matter of comparing legislation. [ 93 ] In my view, it is important to remember that Macau law is based on the civil law regime as opposed to the common-law regime that exists in Canada. In a civil law regime, the laws are codified. Changes in the law in civil law regimes are made by the legislatures. Their laws have not been expanded by, nor do they contain, judge-made law based on precedent.

This is clear from an examination of the decisions of the Macau courts with respect to the parties in the case at bar. The Macau rulings do not contain any citations of case authorities. [ 94 ] In contrast to Macau law, Canadian law and our common-law regime, in addition to legislation such as the Divorce Act and the FLA , contains much law that is based on precedent. Decisions by Canadian courts in

interpretation of these statutes, and considerations of their application to countless and varied fact-patterns in thousands of cases, have vastly expanded, and elaborated on, the law – to the point where much of our law is judge-made. That is the case with respect to the law regarding applications for child support for adult children pursuing an education. [ 95 ] The leading authorities on the issue of child support for adult children pursuing an education, and on the factors that are to be considered in assessing entitlement to child support in that situation, are Neufeld and Farden.

These, and other authorities that have followed them, set out the law that is applicable to this issue. [ 96 ] There is no reference in the Macau judgments to any consideration of the factors laid down by Master Joyce in Farden for evaluating whether a child remains a child that is entitled to child support. While there was mention in the Macau Court of First Instance’s ruling about the Applicant’s lack of communication and contact with the Respondent, it is not clear what weight, if any, was placed on that factor, in its reasons for judgment.

There is no reference or mention, anywhere in the reasons for judgment of either the Macau Court of First Instance, or the Macau Court of Appeal, of the Respondent father’s ability to pay child support. [ 97 ] The only discernible consideration for the Macau courts appearing in their reasons for judgment, is that it is unreasonable to require parents to continue paying child support once that child has attained a bachelor degree. [ 98 ] That is not the law in British Columbia with respect to applications for child support for adult children pursuing an education.

Levine, J.A. made it clear in her reasons in Neufeld that: There is no arbitrary cut-off point based on the number of degrees or the eligibility of the student for financial assistance. [ 99 ] With respect to child support, the fundamental principle in British Columbia is that child support is the right of the child. That does not appear to be the focus of the law in Macau.

The reasons for judgment in the Macau courts appear to focus instead on the rights and obligations of the parents, and the obligation of the child to enter the work force after the attainment of a bachelor’s degree, even if that means “starting at the bottom”. [ 100 ] Almost all of the “same questions” that would require judicial determination, in relation to the Applicant’s action in the case at bar, were not considered and were never decided by the Macau courts.

Accordingly, I find that the Application in the case at bar is not barred by the doctrine of res judicata under either issue estoppel or cause of action estoppel. Macau law regarding child support for adult children pursuing an education is fundamentally different from that in British Columbia. Accordingly, I decline to recognize the Macau judgments. [ 101 ] The Respondent’s application for a stay of proceedings on the basis of lack of jurisdiction is dismissed. [ 102 ] The application will now proceed to a hearing on the merits.

Counsel for each party is hereby adjourned to the Judicial Case Manager for the purpose of setting new dates for the hearing. If there are any changes to the original five day time estimate, the new estimates should be provided. If counsel cannot agree to a time estimate, I direct the Judicial Case Manager to adjourn the parties and counsel to a fix date appearance before a judge of this court.

_____________________________ The Honourable Judge P. Chen Provincial Court of British Columbia