A.C. v. Z.W., 2022 BCPC 206

Citation: A.C. v. Z.W. 2022 BCPC 206 Date: 20220902 File No: F222785 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A.C. APPLICANT AND: Z.W. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. SMITH Counsel for the Applicant: Q. Fuglestveit Counsel for the Respondent: M. Anderson Place of Hearing: North Vancouver , B.C. Date of Hearing: August 15, 2022 August 15, 2022 September 2, 2022

Introduction [ 1 ] The parties are the biological parents of “B.” (the Child), who was born on [omitted for publication]. They lived together for the first three months, or so, of the pregnancy, but then separated and have not lived together since. As a result, Z.W. is not the Child’s guardian under s. 39(1) of the Family Law Act , (“ FLA ”). A.C. clearly is. [ 2 ] A.C. lived with the Child on the Sunshine Coast from the Child’s birth until December 2021. In December, she and the Child moved to Nelson, BC. In April 2022, she returned with the Child to the Sunshine Coast.

She now wants to return to Nelson with the Child. Z.W. does not want her to remove the Child from the Sunshine Coast. [ 3 ] On July 28, 2022, Z.W. filed in the Sechelt Court Registry, an Application About a Family Law Matter, seeking an order appointing him a guardian of a child, among other relief. [ 4 ] On August 4, 2022, Z.W. filed in the Sechelt Court Registry, an Application About Priority Parenting Matter, as well as an Application for Case Management Order Without Notice or Attendance, seeking a hearing of the Priority Parenting Matter application without notice to A.C..

The application for a without-notice hearing was granted on August 4. [ 5 ] In his Priority Parenting Matter application, Z.W. sought an order prohibiting A.C.’s removal of the Child from the Sunshine Coast, under s. 64(1) of the FLA. [ 6 ] On August 8, 2022, the hearing of the Priority Parenting Matter, (“the s. 64(1) application”), was moved from the Sechelt courthouse to North Vancouver, due to time constraints at Sechelt and the urgent nature of the application. The hearing was added onto the extant North Vancouver court list. The s. 64(1) application and supporting materials were before the Court.

The matter proceeded by MS Teams. Counsel for Z.W. appeared; no one else was present for the hearing. [ 7 ] Following submissions of counsel, I granted the requested order prohibiting A.C. from removing the Child from the Sunshine Coast, under s. 64(1) of FLA , with leave to A.C. to apply to set the ex parte order aside, with seven (7) days’ notice to Z.W.. [ 8 ] On August 11, A.C. filed an application to have that order set aside. [ 9 ] Her application came on for hearing on August 15, 2022. Upon hearing the application, I reserved. This is my decision on that application.

Z.W.’s Urgent, Ex Parte Application Heard August 8, 2022 [ 10 ] The stated factual bases for Z.W.’s urgent, without notice application for the order prohibiting A.C. from leaving the Sunshine Coast under s. 64(1) of the FLA were: i. The Child is Z.W.’s biological child. ii. Z.W. commenced a family law action on July 28, 2022. iii. On July 29, 2022, A.C. texted Z.W. and indicated that she was aware that he had filed process in Provincial Court and that, as a result of his action in doing so, she would be moving to the Northwest Territories. iv.

On July 29, 2022, a process server attended A.C.’s home to serve her with process in relation to the family law matter and spoke with a man who answered her home, who stated that A.C. lived there but was not home; that he was babysitting her child and that A.C. would be home that afternoon. v. Later in the afternoon of July 29, the process server re-attended A.C.’s home and spoke with the same man at her door; this time, the man said that A.C. did not live there and became hostile when questioned about the inconsistency between these statements and statements made earlier in the day. vi.

A.C. is clearly and deliberately evading service and has expressed that she will move outside of the jurisdiction of the court specifically in an attempt to frustrate its process. [ 11 ] An affidavit affirmed by a legal assistant was filed in support of Z.W.’s application.

The affidavit contains hearsay, said to recite observations described by a process server retained by the firm representing Z.W., and also attaches screenshots of text messages said to have been sent to Z.W. by A.C. in late July 2022. [ 12 ] Counsel advised that Z.W. was working in a remote camp and thus unable to provide affidavit evidence himself; counsel did not urge that the bulk of the affidavit be treated as anything other than inadmissible hearsay.

The screenshots were accepted as reliable evidence. [ 13 ] An affidavit of the process server referred to in the legal assistant’s affidavit was also filed in support of the application; in it, he avers to going to a house, believed to be A.C.’s, twice during the day of July 29 and dealing with a man there. He was trying to serve A.C. with the Application About a Family Law Matter filed by Z.W. on July 28, 2022.

That application is an exhibit to his affidavit. [ 14 ] Submissions in support of the s. 64(1) application were to the effect that the text messages and process server’s affidavit evidenced a clear intention by A.C. to frustrate the Court’s process by evading the process server and by her moving to the Northwest Territories with the Child, shortly.

Counsel urged that A.C.’s use of the word “stunt” in one of her text messages referred to Z.W.’s filing the July 28 court application and that a reasonable inference should be drawn, from the text messages, that A.C. was going to the Northwest Territories and had no intention of returning to BC. [ 15 ] Z.W. urged that, given an imminent risk of the Child being removed to the Northwest Territories, any unfairness in issuing the

order, ex parte, could be addressed by giving A.C. the opportunity to come before the court, after the order was made, and say that she isnot leaving the court’s jurisdiction; or that, if she is, she will return, and that, therefore, the order should not have been made. [16] At the conclusion of the ex parte hearing, I granted the order sought, prohibiting A.C. from removing the Child from thegeographic region of the Sunshine Coast under s. 64(1) of the FLA. The order provided that A.C. could seek to have the order set asideon seven (7) days’ notice to Z.W..

A.C.’s Application to Set Aside the Ex Parte Order Heard August 15, 2022 [17] On August 15, 2022, A.C.’s application to set aside the s. 64(1) order was heard. [18] In support of her application was a recitation of facts, as provided for in the court form, along with affidavits from her, associatesfrom Nelson and her Sunshine Coast landlady. [19] Neither party sought to cross-examine any affiant in this matter, thus, the facts set out in the various affidavits are unchallenged.(I have not had regard to the inadmissible hearsay evidence contained in a number of the affidavits).

The Issue [20] The issue is whether the order, granted under s. 64(1) of the FLA prohibiting A.C. from removing the Child from the SunshineCoast, should be set aside. Parties’ Positions A.C. [21] A.C. says that Z.W. is seeking to, in effect, obtain an order preventing her from relocating with the Child under the guise of anon-removal order under s. 64(1) of the FLA. She says that Z.W. is not the Child ’s guardian by operation of s. 39(1) of the FLA, nor hashe been appointed a guardian under s. 39(3) of the FLA.

As a result, she says, he would have no standing to object to her relocating withthe Child under s. 46, (relying on SZM v. KMN, 2021 BCSC 365 at paras. 31 – 33), and that s. 64(1) clearly does not apply to a relocationunder the other relocation

section in the FLA, found in Division 6; (see: s. 64(3)). [22] Further, she says that the evidence now shows that she did not and will not move outside the court’s jurisdiction and was notseeking to evade service of the court’s process. Given that these concerns underpinned the granting of the s. 64(1) order, she says that itshould clearly be set aside.

Z.W. [23] On this application to set the s. 64(1) order aside, Z.W. says that an order under s. 64(1) can be made in relation to a proposedremoval of a child from one geographical area to another, within the province, and that on that basis the non-removal order shouldremain. He relies on KK v.

DH, 2021 BCPC 83 as well as the difference in language between ss. 64(1) and 64(2) in support of hisposition that I have authority to prevent the removal of the Child from the Sunshine Coast, BC to Nelson, BC. [24] Z.W. says that the guardianship issue should not have relevance here, since he has an application regarding guardianship beforethe court and he should not be prejudiced by the likelihood that that determination will not be made for some period of time.

He says thata consideration of “laches” to pursue court relief is inconsistent with the principles of resolution, urged in the context of family lawmatters. Further, he says that the language of s. 64(1) makes it clear that a person other than a guardian can apply for a non-removalorder. He says that A.C.’s good faith in relation to the move should be a factor considered on this application. Setting Aside an Ex Parte Order [25] An ex parte order may be set aside where there has been non-disclosure of a material fact, without regard to the merits of theapplication; (see: Money in a Minute Auto Loans Ltd. v.

Price, 2001 BCSC 846, para. 12, quoted with approval in Evans. v. UmbrellaCapital LLC, 2004 BCCA 149, para. 33). [26] Even where there has not been non-disclosure of a material fact or a material misrepresentation has been made, an application canbe made, (including to a judge other than the judge who granted the ex parte order), to set aside such an order on its merits, by a personaffected by the order.

On such an application to set aside, the application is heard on a de novo basis with regard to the law and facts ofthe original application; (see: Money in a Minute Auto Loans Ltd., at para. 14). [27] In Money in a Minute Auto Loans Ltd., McKinnon J described a material fact, in the context of an ex parte application as “…onethat may or might affect the outcome of an application,” citing CPR v.

ULTU loc. 144, (BCSC). [28] In this case, as stated, the ex parte order was granted on the basis that any prejudice caused to A.C. by the ex parte process andresulting order could be ameliorated by her appearing before me and demonstrating that she was not leaving BC and was not seeking toavoid the court’s process. Clearly, she is a person affected by the order.

Discussion of the Evidence before the Court [29] A.C. says that she plans to move with the Child to Nelson, BC, not outside the court’s jurisdiction, to the Northwest Territories,as was asserted at the application resulting in the challenged order. [30] She was not questioned about the text message in which she writes that she had moved to the Northwest Territories, tendered onthe s. 64(1) application. Given the stated facts on her application and the evidence now before the court, as well as her appearance beforethe court, albeit via MS Teams from counsel’s office, I place no weight on that text message.

[ 31 ] A.C. has attuned to the court’s jurisdiction.

This fact also seriously erodes the basis upon which the order was sought and upon which it was granted. [ 32 ] A.C. was not questioned about the text she sent referencing Z.W.’s having pulled a “stunt.” The current record includes further text messages evidencing a number of contentious issues between the parties, recently; as a result, I view it unsafe to conclude that she was, there, referring to Z.W.’s filing the court application on July 28 as urged at the s. 64(1) application. [ 33 ] With regard to evidence now before the court, albeit unrelated to s. 64(1) considerations, specifically, I note that a number of the affidavits filed by A.C., refer to the availability of flexible child care, housing, social support for her and the Child and opportunity for her to maintain employment in Nelson.

She avers to difficulties with regard to a number of these issues on the Sunshine Coast. Discussion of the Court’s Jurisdiction to Make an Order under Section 64(1) [ 34 ] I agree with Z.W. that I do have the authority to make an order under s. 64(1) of the FLA preventing the removal of a child from a given geographical area in the province to another geographical area of the province. I agree that the difference in language between ss. 64(1) and 64(2) is consistent with that approach as is KK v.

DH , 2021 BCPC 83 , upon which he relies. (I note, however, that in KK , Judge Barrett finds that s. 64(1) authorizes orders that both “prevent” the removal of a child or “restore” a child to a specific location, all within the Division 2, s. 46 relocation scheme discussed in the case). [ 35 ] However, having the authority and choosing to exercise it are two different things.

Decision on the Application to Set Aside [ 36 ] I am satisfied on all of the evidence before me that it is not likely that A.C. plans to remove the Child from BC nor that she is trying to evade or frustrate the Court’s process. [ 37 ] In the result, I conclude that the order made under s. 64(1) on August 8 should not have been granted and it is ordered set aside on that basis. [ 38 ] Further, I did not appreciate a fact, which I view as material, at the s. 64(1) hearing, which is now clear: That fact is that Z.W. is not, currently, the Child’s guardian under the FLA . [ 39 ] Z.W.’s Application About a Family Law Matter was appended as an exhibit to the process server’s affidavit on the s. 64(1) application, as mentioned.

In that application, Z.W. seeks an order that he be appointed a guardian of the the Child, from that, it can be inferred that he is not, currently, the Child’s guardian. Thus, the fact - which I view as material - was before the Court on the s. 64(1) application, in that way.

That said, likely given Z.W.’s view that his guardianship status is not relevant to the s. 64(1) application, it is not a fact that I recall having my attention directed to. [ 40 ] I note that in KK , the decision where a s. 64(1) order was granted in relation to geographical areas within BC, Judge Barrett observed that the fact that both parties were guardians was important to her analysis of the application of s. 64(1); (see: para. 51). [ 41 ] Further, I agree with A.C. that Z.W. has no standing to prevent her relocating with the Child under s. 46 of the FLA , ( see: SZM ); relocating is what she is, in fact, proposing to do.

The only other provisions in the FLA regarding relocation are found in Division 6 of the FLA ; (see: s. 69); s. 64(3) clearly states that s. 64(1) does not apply to such relocations. [ 42 ] Thus, at the heart of Z.W.’s position on this application is the proposition that a person who can resort to neither s. 46 nor s. 69 of the FLA , can resort to s. 64(1) to prevent a guardian’s relocating with a child.

It is for that reason that I view his status of non-guardian as material to the s. 64(1) application; his status makes clear the actual, practical question on the table. [ 43 ] While there was not non-disclosure of this material fact, my appreciation of it, upon reflection and having had the benefit of A.C.’s submissions and reviewing relevant case law, fortifies my view that the order should be set aside and the application dismissed. [ 44 ] I see “removing” a child from a geographical area, (see: s. 64(1)) as different from “relocating” with a child, (see: ss. 46 and 69 of the FLA ).

In my view, this is consistent with the approach taken in Nalinakshan v. Dileep , 2021 BCSC 2565 , where the Court makes clear that s. 64(1) is distinct and different from the FLA ’s relocation provisions; (see: para. 20 (c.)). [ 45 ]

Section 64 orders seem to arise, generally, in the context of proposed travel for a child, often involving their removal from the court’s territorial jurisdiction: In Hambley v. Sharp , 2022 BCSC 397 , the Court connects an application for a s. 64(1) non-removal order to issues relating to the child’s travel and the court’s territorial jurisdiction; see: paras. 81 - 83. [ 46 ] In Law v.

Cheng , 2015 BCSC 1607 , an order under s. 64(1) was made to prevent a 16 month old child from being taken, every other week, out of BC to Ontario for her mother’s parenting time, when it was not in the child’s best interests and in breach of a court order. [ 47 ] In JZ v. LHC , 2015 BCSC 97 , the Court concludes that to issue a non-removal order under s. 64, “…the court must be satisfied that a person proposes to remove a child from, and is unlikely to return the child to British Columbia,” (at para. 15).

The focus there, as well, is travel with the child (see: para. 22). [ 48 ] This is not a case about travel or removing a child from BC; it is a case about relocation by a guardian, opposed by a non- guardian parent.

In the circumstances of this case, as discussed above, the FLA relocation provisions do not apply. [ 49 ] For the reasons above, I am not convinced that s. 64(1) should be applied here in such a manner as to result in an order which, practically, prohibits relocation when the applicant has no recourse to the specific relocation provisions of the act. [ 50 ] Finally, while I am satisfied, based on my factual findings and the case law discussed above, that the s. 64(1) order should be set

aside, as stated, given that this is a FLA matter involving a child, I have also considered the evidence before me and the Child’s best interests. That evidence includes that A.C. has been the Child’s sole caregiver since his birth; that she has secure housing; flexible, reliable childcare and, thus, better employment prospects in Nelson than on the Sunshine Coast, as well as social support and connection for her and the Child there. Z.W. is said to have had minimal involvement in the Child’s life so far, a position consistent with some of the text messages in evidence.

A.C.’s assertions of challenges experienced by her while living on the Sunshine Coast were not shaken at the hearing of her application and supported by affidavit evidence. [ 51 ] The order made on August 8, 2022 under s. 64(1) of the FLA is set aside. [ 52 ] Z.W.’s Application About Priority Parenting Matter, filed August 4, 2022, is dismissed. _____________________________ The Honourable Judge L. Smith Provincial Court of British Columbia