ALT v. MB Date:, 2012 BCPC 567

Citation: ALT v. MB Date: 20121106 2012 BCPC 0567 File No: 09-3808 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: ALT APPLICANT AND: MB RESPONDENT RULING ON APPLICATION OF THE HONOURABLE JUDGE E. L. BAYLIFF Counsel for the Applicant: J. Rempel Counsel for the Respondent: E. Bowman Place of Hearing: Williams Lake , B.C.

Date of Hearing: October 18, 2012 Date of Judgment: November 6, 2012 [ 1 ] This is my Ruling on a Notice of Motion (document #21) filed by counsel for ALT (formerly B.) seeking an order transferring this file to the court registry in Quesnel, B.C. ALT’s application is opposed by MB. He says the file should remain here in Williams Lake. The child in question is the couple’s son, PDB (“PDB”) born [omitted for publishing] .

PDB is now 8 years old. [ 2 ] ALT’s application to transfer the file to Quesnel might almost be characterized as a cross-application to an earlier application to transfer the file to Surrey which was brought by MB and which I dismissed on August 23 rd of this year. [ 3 ] I have decided that the file must be transferred to Quesnel. Rule 19(4) of the Provincial Court (Family) Rules, B.C. Reg. 417/98, requires me to consider the balance of convenience and any special circumstances that exist.

I find that the balance of convenience slightly favours Quesnel over Williams Lake and that there are no special circumstances to justify any other decision. I have specifically considered the issue of res judicata raised by Ms. Bowman on behalf of MB and concluded that it does not bar the transfer of this file to Quesnel. [ 4 ] I will briefly explain my reasons. [ 5 ] First, as it concerns balance of convenience, none of the parties still reside in the Williams Lake area. [ 6 ] MB and his counsel, Ms. Bowman, are located in the Delta area, in the lower mainland of B.C.

I gather MB has made his home there for some years. His spouse, AM, who stands in the role of PDB’s step-mother, lives with him there. Both will be important witnesses should this matter go to trial. Other potential witnesses from the lower mainland include a Dr. T, EB and RM. [ 7 ] ALT and her lawyer, Mr. Rempel, are located in the Quesnel area. And, in accordance with the existing court order dated April 29 th , 2011, PDB primarily resides with his mother so he, too, resides in the Quesnel area and attends school there where I believe he is entering grade 3.

The move to Quesnel by ALT took place recently – in the summer of 2012. Prior to that, she had resided for two years, with PDB, in Prince George. And before that she was in Williams Lake. PDB started school (Kindergarten) in Williams Lake, then he did grades one and two in Prince George and now he is, as I have said, entering grade 3 in the Quesnel area. [ 8 ] PDB’s medical specialist, Dr. A, is in Prince George.

He did have his family physician and his dentist here in Williams Lake according to what I was told by ALT during the proceeding on August 23 rd but it is not clear to me who PDB is currently seeing as a family physician or dentist given that he has been living away from Williams Lake for more than 2 years at this point. [ 9 ] As for extended family, ALT’s mother and brother live in the Quesnel area and on August 23 rd I was told that a relation on the B side, JB, lives in the Williams Lake area. [ 10 ] In my view the balance of convenience slightly favours Quesnel over Williams Lake or, for that matter, Surrey, as the location where court proceedings in relation to PDB should be held. [ 11 ] The majority of PDB’s time over the past couple of years has been spent north of Williams Lake, in Prince George and now, Quesnel.

The teachers and school counsellors with recent knowledge of PDB are located in Prince George and now, Quesnel, rather than in Williams Lake. His specialist is in Prince George. Those who have had any sort of ongoing contact with PDB as he went about his daily life over the past couple of years (such as neighbours, parents of friends, care-givers) will be located in Prince George or Quesnel rather than in Williams Lake. [ 12 ] Of course, PDB does also have a strong connection to his father who is in the lower mainland.

However, I do not find that his connections in the lower mainland – other than with his father and step-mother - are as deep as his connections in the Prince George and Quesnel area. This is simply because in recent years his primary residence has been in the north rather than in the lower mainland. He did see a doctor in the lower mainland on one occasion. This was Dr. T. He saw her at the [omitted for publishing] Medical Centre on a walk in basis, during summer access with MB. As important as Dr.

T’s observations of PDB were (they formed the basis for MB’s application to postpone PDB’s return to his mother’s care until he could be assessed by a child psychologist), her acquaintance with PDB was, necessarily, quite short lived.

Similarly, PDB’s connection with the day care provider, EB, was over the course of a relatively short span of time compared with the connection that PDB would have had with any care giver or teacher he may have been involved with in Prince George and now, Quesnel. [ 13 ] In terms of witnesses therefore, it is my view that the balance of convenience favours Quesnel or even Prince George rather than Williams Lake or Surrey. [ 14 ] As for the parents themselves, there is no one place that will be convenient for both of them. Surrey is convenient for MB and his lawyer, Ms.

Bowman, but it is very inconvenient for ALT and her lawyer, Mr. Rempel. Quesnel is convenient for ALT and Mr. Rempel, but it is very inconvenient for MB and Ms. Bowman. Williams Lake is also very inconvenient for MB and Ms. Bowman and it is somewhat inconvenient for ALT and Mr. Rempel. Certainly there are times when a court will decide to transfer the file to a court location that is inconvenient to both parties. For example, the court may choose a location that is roughly half way between where each parent lives.

In this case, Williams Lake is much closer to ALT’s location than to MB’s location, so leaving the file here would not really achieve fairness or parity between the parties on this issue in any case. And, when I consider that it is likely that the majority of the witnesses who have real knowledge of PDB are located north of Williams Lake, in the Quesnel and Prince George areas, I cannot justify leaving the file in Williams Lake simply in order to ensure that ALT suffers too, in the sense of having, like MB, to have to pay for her lawyer to travel.

[ 15 ] As I have said, there is no location that is convenient for both parents and their counsel. The determinative factor ought therefore to be the convenience of witnesses likely to be called and in my view that slightly favours Quesnel over Williams Lake or Surrey. [ 16 ] The second area I am required to consider according to Rule 19(4) is special circumstances.

Of the three locations proposed – Quesnel, Williams Lake or, harking back to MB’s application in August, Surrey – are there any special circumstances that exist to recommend one location over the other? [ 17 ] In my view there are not. [ 18 ] In reaching this conclusion I have specifically considered Ms. Bowman’s argument that the issue of transferring the file away from Williams Lake to any location had already been decided back on August 23 rd when the court rejected MB’s application to transfer the file to Surrey.

As such, it was argued that ALT’s application to transfer to Quesnel ought to be dismissed because the issue of transfer away from Williams Lake was res judicata. [ 19 ] After reviewing what I said on August 23 rd I have decided that the issue of transfer is not res judicata except as it concerns transfer to Surrey. The specific issue presented by ALT’s application – which is transfer from Williams Lake to Quesnel – was not before the court in August. The essence of the Ruling I gave at that time was simply that the Cariboo was the more convenient location than Surrey.

I did not rule that Williams Lake was the preferred location as between other communities within the Cariboo such as Prince George or Quesnel. [ 20 ] It is certainly correct that ALT, who was self-represented at the time, made various representations in her Affidavit filed in response to MB’s application to transfer about PDB’s connection to Williams Lake rather than, as she now claims, to Quesnel. These representations may provide a fertile area for cross-examination of ALT in any future proceedings concerning the custody or residency of PDB.

However, I am satisfied that the issue of transfer of this file away from Williams Lake is not res judicata except as it concerns transfer to Surrey. [ 21 ] In conclusion, applying the tests required by the Rules, it is my view that this file ought to be transferred to the Quesnel Registry of the Provincial Court for all purposes and I so order. _________________________ E. L. Bayliff Provincial Court Judge