K.U.B. v. L.L.M., 2013 BCSC 39

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: K.U.B. v. L.L.M., 2013 BCSC 39 Date: 20130111 Docket: 12-2036 Registry: Victoria Between: K.U.B. Claimant And: L.L.M. Respondent Before: Master Bouck Reasons for Judgment Counsel for the Claimant: W. Murphy-Dyson Agent for counsel for Respondent: C. Hunt Place and Date of Trial/Hearing: Victoria, B.C. December 6, 2012 Place and Date of Judgment: Victoria, B.C.

January 11, 2013 Introduction [ 1 ] This is a family law proceeding solely concerned with the parenting and support of the parties’ infant child. [ 2 ] The respondent mother seeks an order transferring these proceedings to the Vernon Registry for all purposes as she and the child live in that area. Facts [ 3 ] The parties were never married or even cohabitated. Their child, M., was born June 7, 2012 as a result of a relatively brief dating relationship.

The relationship began and ended while both parties were resident in Victoria; it was over by the time of the child’s birth. [ 4 ] The respondent moved to Vernon in the late stages of her pregnancy. She did so without any notice to the claimant who says that the parties were in regular telephone or email communication at the time. Indeed, the claimant says that there was a plan in place for M. to be born in Victoria.

The claimant says that prior to L.L.M. leaving Victoria, the parties attended counselling sessions intended to assist in their new parenting roles. [ 5 ] The respondent says that the move was made necessary by the lack of both financial and emotional support received from the claimant during the pregnancy. The respondent denies that the parties were in any regular communication.

L.L.M. expected to be a single parent to the child. [ 6 ] There is conflicting evidence concerning the respondent’s ties to both Victoria and Vernon. [ 7 ] L.L.M. was born and raised in Vernon but had not lived with any permanence in the city for many years. She deposes to having lived in Victoria “briefly” from March 2011 to May 2012. L.L.M.’s parents and extended family live in the Vernon area. [ 8 ] K.U.B. deposes that in fact the respondent had lived in Victoria for several years while completing a Masters degree at Royal Roads University, operating a business in the city and even running for city council.

K.U.B.’s evidence minimizes the respondent’s connections to Vernon and her extended family. [ 9 ] K.U.B. commenced this action immediately following M.’s birth. The action was commenced out of concern that L.L.M. would not allow K.U.B. to have a meaningful parental role in M.’s life. [ 10 ] Shortly after being served, L.L.M. commenced a provincial court action in that court’s Vernon registry seeking sole custody and guardianship of M. As a result of legal advice obtained, L.L.M. did not serve the claimant with the proceedings. Thus, the parenting

issues concerning M. will be resolved in this action. [ 11 ] In this action, K.U.B. seeks an order that: 1. the parties share joint custody and guardianship of M.; 2. M. continue to reside primarily with L.L.M. but with liberal and generous access to K.U.B.; and 3.

K.U.B.’s access “increase to 50% of the time as the child matures”. [ 12 ] In her counterclaim, L.L.M. asks for sole custody and guardianship of M. with reasonable and generous access to K.U.B. “in accordance with M.’s best interests”. [ 13 ] Since initiating this cation, K.U.B. and his extended family have had some access time with M. but largely at L.L.M.’s discretion and typically requiring K.U.B. to travel to Vernon to exercise that access. [ 14 ] The evidence in support of L.L.M.’s application addresses M.’s physical and emotional health.

The parties paint somewhat different pictures of their child’s condition in that regard. [ 15 ] L.L.M. describes M. as a sensitive child who is easily upset with travel and very tightly bonded to the respondent. M. continues to breast feed almost exclusively and requires feedings every few hours. [ 16 ] K.U.B. does not deny the strong bond between mother and child but says that M. is adaptable to travel and care by others. [ 17 ] L.L.M. deposes that she can ill-afford to travel to Victoria on a regular basis and has very limited personal support while in the city.

L.L.M. suggests that K.U.B. is in the superior financial position in terms of bearing the costs of this litigation. [ 18 ] L.L.M’.s application first came before the court on October 25, 2012. [ 19 ] In addition to the transfer of the proceedings, L.L.M.’s notice of application sought an order that the judicial case conference scheduled for November 5 th be cancelled and re-scheduled to take place in Vernon. That relief was not granted.

The application to transfer the proceedings to Vernon was ordered adjourned to be re-set following completion of the judicial case conference. [ 20 ] At the judicial case conference, the parties were not able to reach agreement with respect to parenting issues. L.L.M. and her counsel attended the judicial case conference by telephone, with leave of the court.

The conference was very brief. [ 21 ] The claimant’s application for interim joint custody, joint guardianship and access was filed on November 8, 2012 and heard at the same time as the respondent’s application to transfer the proceeding. [ 22 ] On December 6 th , 2012, I ordered that the parties be the interim joint guardians of M. but adjourned the issue of custody to trial. [ 23 ] The claimant was granted reasonable and generous access to M. with a minimum of four hours on specified dates over the next several months.

The access visits will take place in both Victoria and Vernon. [ 24 ] No trial date has been set, pending the outcome of this application. Other than counsel’s representations, there is no evidence before the court as to which registry could provide the earliest trial date. DISCUSSION [ 25 ] The parties’ lengthy affidavits address everything from the nature of their relationship, the personal ties of each party to Vernon and Victoria, the strength of their familial relationships, and the observations of M.’s physical and emotional state.

Each party has provided evidence from collateral witnesses, some of whom may be witnesses at any trial. [ 26 ] Before addressing how this evidence ought to be considered on this application, I will summarize the law as set out in the relevant statutory and common law authorities. [ 27 ] The application is brought under Rule 22-2 (13) of the Supreme Court Family Rules (“ SCFR ”) which provides as follows: Rule 22-2— Registry Operations ... Transfers

(13) At any time after a family law case is started, the court may on application order the family law case to be transferred from the registry in which it is being conducted to any other registry of the court for any or all purposes [ 28 ] As L.L.M. submits, in applying this Rule, consideration ought to be given to the object of the SCFR : Rule 1-3 — Object of Rules Object

(1) The object of these Supreme Court Family Rules is to

(

a) help parties resolve the legal issues in a family law case fairly and in a way that will (

i) take into account the impact that the conduct of the family law case may have on a child, and (ii) minimize conflict and promote cooperation between the parties, and (

b) secure the just, speedy and inexpensive determination of every family law case on its merits. Proportionality

(2) Securing the just, speedy and inexpensive determination of a family law case on its merits includes, so far as is practicable, conducting the family law case in ways that are proportionate to (

a) the interests of any child affected, (

b) the importance of the issues in dispute, and (

c) the complexity of the family law case. [ 29 ] Counsel relied on the following common law authorities: S.V.B. v. S.L.A ., 2005 BCPC 724 ; Moon v. Moon , [1986] B.C.J. No. 1761 ; Heinrick v. Heinrick , [1999] B.C.J. No. 906 ; Sadler v. Sadler , [1991] B.C.J. No. 153 ; Robertson v. Zimmer , 2001 BCSC 1067 . [ 30 ] S.V.B. v. S.L.A. is a decision of our Provincial Court. The other decisions emanate from the Supreme Court of British Columbia. The reasons of the learned judge include a helpful synopsis of the law regarding transfer of Supreme Court proceedings under the predecessors to Rule 22-2.

However, the learned judge further observes that the test to be met for transferring provincial court proceedings differs from the test set out in the other authorities cited above. Thus, the analysis (along with the result) in S.V.B. v.

S.L.A. can have little application to the case at bar. [ 31 ] The test as pronounced in the Supreme Court decisions is as follows: • the party initiating the proceeding has the right to control the course of the litigation; • the onus is on the party seeking a transfer of the proceeding to convince the court that the preponderance of convenience and interests of justice favour such a transfer; and • that onus or burden of proof is onerous. [ 32 ] Thus, on this application, the parties do not start on equal footing in terms of establishing where a proceeding is best litigated. [ 33 ] In family law cases cited above, the court has taken into account the best interests of the child or children as part of the analysis. [ 34 ] None of the authorities above would have considered the present objects of the SCFR. [ 35 ] Nevertheless, and despite the able argument of counsel, I am not satisfied that a consideration of those objects support the transfer of these proceedings. [ 36 ] With respect to the object articulated in Rule 1-3(b), the respondent has not demonstrated that a transfer of the proceedings will secure the just, speedy and inexpensive determination of this action on its merits.

The transfer might well reduce the litigation expense incurred by the respondent, but will correspondingly increase the expense to the claimant in terms of having to retain agents, change counsel or pay for his present counsel to travel to Vernon for applications and trial. The transfer will also present some inconvenience and cost to the claimant’s collateral witnesses. As noted, there is no evidence that an earlier trial date is available in Vernon. [ 37 ] Nor has the respondent demonstrated that a transfer of proceedings to the Vernon registry will minimize conflict and promote cooperation between the parties.

The claimant did not support L.L.M.’s move to Vernon in the first place and that sentiment remains unchanged. [ 38 ] The final, and perhaps most important, object to consider is the impact that the venue of these proceedings may have on M. The child may be impacted if required to travel with her mother to Victoria for the trial in this matter. In addition, L.L.M. may choose to attend at the claimant’s examination for discovery in Victoria and bring M. along with her.

Otherwise, there is no spectre of M. being impacted by the proceeding remaining in Victoria. [ 39 ] While the evidence suggests that M. is not an easy traveller at her young age, I am not persuaded that the preponderance of convenience for M. favours a transfer of the proceeding to the Vernon registry. At least arguably, M. will benefit by having additional access time with her father and his extended family if she comes with her mother to the possible examination for discover and trial. As matters now stand, M. is already travelling to Victoria for access visits.

[ 40 ] I am not persuaded that the object of proportionality assists the respondent on this application. For example, there is no evidence to suggest that different processes will be applied in the litigation if the action is transferred to the Vernon registry. The parties are encouraged to resolve matters without a necessity of a trial, but that can occur if the proceeding remains in the Victoria registry. [ 41 ] In the result, the respondent’s application is dismissed. Costs of the application will be to the claimant in the cause. “C. P. Bouck” Master C. P. Bouck