L.P. v. A.E., 2022 BCPC 288

Citation: L.P. v. A.E. 2022 BCPC 288 Date: 20221104 File No: F-192616 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: L. P. APPLICANT AND: A. E. RESPONDENT RULING ON THE NOTICE OF CONSTITUTIONAL QUESTION OF THE HONOURABLE JUDGE S.M. MERRICK Appearing on their own behalf: L. P. Counsel for the Respondent: C. Hildebrand Appearing for the Attorney General of British Columbia: J. Patrick Place of Hearing: Sechelt , B.C. Date of Hearing: November 4, 2022 Date of Judgment: November 4, 2022

INTRODUCTION [ 1 ] E.I.V.E. (“the Child”) is almost 4 years old. His parents are L.P. and A. E.. One week prior to the Child’s birth L.P. commenced the litigation. Subsequent to that, L.P. filed 33 court applications in 31 months. During that same time period, A.E. filed six applications. The trial commenced November 7, 2019 and concluded September 23, 2021. The trial took 51 days to complete.

Reasons for judgment were delivered on November 23, 2021. [ 2 ] Prior to final submissions, L.P. filed a Notice of Constitutional Question (the “Original Notice”) which was in addition to a Petition to the British Columbia Supreme Court previously filed by L.P. seeking similar relief. The Original Notice stated that L.P. intended to challenge the constitutionality of s.39(3) of the Family Law Act .

L.P. sought a finding that in the absence of section 39(3) Family Law Act he be found a guardian. [ 3 ] On July 22, 2021, this Court decided that the guardianship issue should be decided before the constitutional challenge was heard. [ 4 ] On November 23, 2021, this Court found that L.P. did not meet the relatively low threshold of ordinary care that is required by s.39(3)(

c) of the Family Law Act to be declared a guardian. The Court also dismissed L.P.’s application to be appointed a guardian of the Child pursuant to s. 51 of the Family Law Act on the basis that it was not in the Child’s best interests for L.P. to be the Child’s guardian. [ 5 ] On June 14, 2022, L.P. filed an amended Notice of Constitutional Question. [ 6 ] On June 21, 2022, the parties appeared before the Court to discuss how the constitutional challenge ought to proceed. At that time, the Court raised the issue of whether the constitutional question was moot.

The proceedings were adjourned to give L.P. an opportunity to demonstrate that the constitutional issue was not moot and why it should proceed. [ 7 ] On October 26, 2022, L.P. filed a further amended Notice of Constitutional Question, in which he stated his intention to challenge

section 51 of the Family Law Act in addition to section 39 (3)(

c) of the Family Law Act . [ 8 ] The hearing to determine whether all of the Notices of Constitutional Question that L.P. filed were moot proceeded November 4, 2022. THE POSITIONS OF THE PARTIES [ 9 ] A.E. submits that the constitutional issue is moot. She further submits that the constitutional issue is res judicata , because L.P. is seeking to re-litigate issues relating to guardianship. Accordingly , she submits that the application is an abuse of process. She says that L.P. is misusing the court process. A.E. seeks an Order reimbursing her, for part of the expenses she has incurred, in the amount of $500 pursuant to section 221(2)(

c) of the Family Law Act . [ 10 ] The Attorney General of British Columbia submits that the further amended Notice of Constitutional Question is deficient in that L.P. has failed to provide particulars of the constitutional issue to be argued. The Attorney General of British Columbia further submits that the constitutional issue lacks merit, is moot and is an abuse of process. [ 11 ] L.P. submits that there is merit to his application. He seeks an Order that his application be set for a one-day hearing. THE FURTHER AMENDED NOTICE OF CONSTITUTIONAL QUESTION [ 12 ] On October 26, 2022, L.P. filed a further amended Notice of Constitutional Question in which he stated his intention to challenge

section 51 of the Family Law Act in addition to section 39 (3)(

c) of the Family Law Act . [ 13 ] Section 8(4) (

d) of the Constitutional Question Act , RSBC 1996, c. 68 requires an applicant to provide particulars of the constitutional issue to be argued. An applicant is required to set out the legal basis for the constitutional argument including which sections of the Charter are alleged to have been breached , and how they have been breached. This however, does not require a full legal analysis. [ 14 ] The amendments to the further amended Notice of Constitutional Question do not include any reference to

section 51 in the sections discussing

section 7 and 15 of the Charter . No outline of any constitutional argument has been included and no remedy has been sought with respect to

section 51. Instead, L.P. has set out his view of how sections 39(3)(

c) and 51 of the Family Law Act ought to be interpreted. The remedy he seeks are Orders under the Family Law Act for guardianship and parenting time. [ 15 ] L.P. explained that he did not have sufficient time to particularize the further amended Notice of Constitutional Question. There is no merit to that submission. L.P. has had years to perfect his Notice of Constitutional Question.

Furthermore , L.P. was put on notice in June 2022 that he had to demonstrate his application was not moot. [ 16 ] The changes to the further amended Notice of Constitutional Question are not constitutional arguments nor do the changes seek constitutional remedies. They demonstrate an intention by L.P. to use the outstanding constitutional challenge to re-litigate matters that have already been determined by the Court. [ 17 ] The further amended Notice of Constitutional Question is deficient and does not meet the requirements of the Constitutional Question Act .

IS THE CONSTITUTIONAL CHALLENGE MOOT? [ 18 ] It is clear that the remedy that L.P. seeks through the Notices of Constitutional Question is a finding that he is the Child’s

guardian. A finding that either section 39(3) of the Family Law Act in its entirety or section 39(3)(

c) of the Family Law Act specificallyis unconstitutional will have no impact on L.P.’s claim of guardianship of the Child. L.P. would still not be a prima facie guardian undersection 39(1) or otherwise. L.P. would still have to apply for guardianship pursuant to

section 51 of the Family Law Act, which hasalready been done and decided by this Court. [19] A question or issue is moot where a practical remedy is not available to an applicant and a decision on its merits would have nopractical effect on the parties’ rights. If a question or issue is moot, there may be circumstances where the court may exercise itsdiscretion and continue with the proceedings. [20] In Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342, the Supreme Court of Canada set outthe following factors to consider when deciding to hear a moot issue. (

a) the need for an adversarial context; (

b) the concern for judicial economy; (

c) the need for the court to demonstrate awareness of its proper law-making function The burden is on the applicant to persuade the Court to exercise its discretion. ANALYSIS [21] Even if L.P. were to successfully argue that section 39(3)(

c) of the Family Law Act infringed his Charter rights, he would not beentitled to the constitutional remedy he seeks, that is, that he be appointed a guardian of the Child. A finding that section 39(3)(

c) of theFamily Law Act is unconstitutional would result in this Court not applying that section. L.P. would still need to establish that one of theother circumstances set out in

section 39 of the Family Law Act exists for him to be presumed guardian. [22] Accordingly, the resolution of the constitutional question would not impact or alter the November 23, 2021 decision of thisCourt. In these circumstances it cannot be said that resolving the constitutional issue would have any practical effect. The constitutionalissue would be a “hypothetical or abstract question” with no actual consequences to the parties’ rights. It is therefore moot. [23] I am satisfied the Court ought not to exercise its discretion to resolve the constitutional question. There is no adversarial contexthere.

The outcome of the constitutional challenge would have no impact on the parties. Since the Provincial Court cannot issue a broaddeclaration of invalidity, the result would not directly impact other disputes. Further, this challenge, in the context of this case, does notjustify the use of limited judicial resources. Finally, it would not be appropriate for the Court to opine on the constitutionality of thelegislation when doing so is not required to resolve an issue before the Court. [24] Accordingly, all of the Notices of Constitutional Question are dismissed.

IS THE CONSTITUTIONAL QUESTION AN ABUSE OF PROCESS? [25] The Notices Constitutional Question filed by L.P. were an attempt by L.P. to either reargue his case or appeal the November 23,2021 decision. Allowing the Notices of Constitutional Question to proceed, particularly when they are moot, would violate theprinciples of judicial economy, consistency, finality and would compromise the integrity of the administration of justice. I am satisfiedthat L.P. has conducted this litigation in a way that is an abuse of process.

THE MISUSE OF THE COURT PROCESS [26] In the November 23, 2021 decision, L.P. was warned in paragraph 193 that the provisions of

section 221 of the Family Law Actwould be considered in relation to the conduct of any applications that he proceeded with. He was also prohibited from filing furtherapplications without first receiving permission from a Provincial Court Judge. [27] On March 14, 2022, Regional Administrative Judge Milne effectively declared L.P. to be a vexatious litigant. (See [omitted forpublication] at paragraph 45.).

Regional Administrative Judge Milne noted in his March 14, 2022 Order that since November 23, 2021,L.P. had filed seven (7) applications for Case Management Orders that had been dismissed. [28] On June 21 and 29 2022, L.P. was prohibited, by this Court, from making any further applications or filing other Courtdocuments unless they related to his Notice of Constitutional Question. [29] On October 27, 2022, the Sechelt Court Registry was directed not to file an affidavit that L.P. was seeking to file. [30] It is clear that L.P. was using the Notices of Constitutional Questions to try to reargue the case.

He was not putting forth alegitimate Charter argument. Considering L.P.’s past conduct, the way he conducted his constitutional argument was clearly a misuse ofthe Court process. [31] He should, therefore, pay A.E. the sum of $500.00 that she is seeking as her interests were affected by L.P.’s actions. That sumshall be payable to A.E. no later than May 1, 2023. [32] There are now no applications that L.P. could reasonably make in Provincial Court until such time as his appeals have either beendetermined or abandoned.

Accordingly, the previous Orders respecting prohibitions against future filings by L.P. are hereby cancelledand replaced by the following: Pursuant to section 221(1) of the Family Law Act, L.P. is prohibited from filing, in the Provincial Court ofBritish Columbia, any documents, including a Notice of Constitutional Question, until such time as all of his appeals have either beendecided or abandoned. [33] The exceptions are as follows:

a) L.P. may file a Financial Statement in Form 4 in the Provincial Court; and

b) any Reply document that he would be entitled to file in response to an application filed by A.E.. However, this does not allow L.P. to file any affidavits or counter applications in response to an application filed by A.E. without first receiving permission of a Provincial Court Judge. THE ORDERS OF THE COURT 1. All Notices of Constitutional Question filed by L.P. are dismissed. 2.

The previous Orders respecting prohibitions against future filings by L.P. are hereby cancelled and replaced by the following: Pursuant to section 221(1) of the Family Law Act, L.P. is prohibited from filing, in the Provincial Court of British Columbia, any documents, including a Notice of Constitutional Question, until such time as all of his appeals have either been decided or abandoned. The exceptions are as follows:

a) L.P. may file a Financial Statement in Form 4 in the Provincial Court; and

b) any Reply document that he would be entitled to file in response to an application filed by A.E.. 3. For greater clarity, 2(

b) does not allow L.P. to file any affidavits or counter applications in response to an application filed by A.E. without first receiving permission from a Provincial Court Judge. 4. Pursuant to section 221(2)(c)(ii) L.P. shall pay to A.E., the sum of $500.00 no later than May 1, 2023. _____________________________ The Honourable Judge S.M. Merrick Provincial Court of British Columbia