Y.N. v. W.G., 2020 BCPC 16

Citation: Y.N. v. W.G. 2020 BCPC 16 Date: 20200122 File No: 115857 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: Y.N. APPLICANT AND: W.G. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L.D. WYATT

Counsel for the Applicant: M. Newcombe Counsel for the Respondent: K. Erzinger Place of Hearing: Kelowna , B.C. Date of Hearing: January 16, 2020 Date of Judgment: January 22, 2020 [ 1 ] Two applications came before the court on January 16, 2020.

Y.N. seeks an order that she be allowed to obtain passports for the parties’ two young children without the need for W.G. to sign the applications, and she also seeks to have the court dispense with the need for him to provide a travel consent letter when she travels internationally with the children. [ 2 ] W.G. filed a reply opposing her application, and he filed a counterclaim seeking to have these provincial court proceedings consolidated with the family law proceedings in the Supreme Court between these parties. [ 3 ] No evidence was called at this hearing; rather, counsel made submissions based on caselaw and the filed pleadings and orders to date.

W.G. did not attend the hearing as he is currently out of the country visiting family. [ 4 ] Judgment was reserved in order to allow the court to consider the submissions and the various authorities submitted on that date. RECENT DEVELOPMENTS [ 5 ] W.G.’s application to have these proceedings consolidated with the Supreme Court family law proceedings was filed on October 22, 2019. On December 2, 2019 the entirety of the parties’ family law action in BCSC file 118695, which action was commenced by W.G. in March 2018, was declared a nullity, save and except for the parties’ claim for a divorce.

That order was by consent. I was told that this consent was reached as a result of the caselaw that has developed out of the British Columbia Court of Appeal in Halliday v. Halliday 2015 BCCA 82 , followed by the British Columbia Supreme Court in Kler v. Kang 2018 BCSC 1136 , which provides that if a separation agreement is filed with a requisition in the Supreme Court, pursuant to the Supreme Court Family Rules, this has the effect of commencing a family law proceeding in Supreme Court.

Accordingly, if the parties to that agreement and that family law proceeding want to seek any corollary relief, they must do so by filing a notice of application in that proceeding. They are not able to file a Notice of Family Claim, as that would have the effect of commencing a parallel proceeding. CHRONOLOGY IN THE PROVINCIAL COURT AND THE SUPREME COURT PROCEEDINGS [ 6 ] It is important to set out the history of litigation between these parties. [ 7 ] A separation agreement purported to be entered into by the parties in 2016 was filed by W.G. in the Supreme Court on July 7, 2016.

No further action has ever been taken in that proceeding. [ 8 ] On June 23, 2017, Y.N. filed an application in Provincial Court commencing these proceedings. She claimed orders for guardianship, parental responsibilities, child support and a protection order. In the area of the application form which asks if there are prior court orders or agreements concerning separation, guardianship, parenting arrangements, contact with a child or support, she checked the boxes that say “no orders” and “no written agreements”.

At this hearing on January 16, 2020, she advised the court through counsel that the separation agreement they signed did not address custody, guardianship or support. Accordingly, she disputes that the agreement that was filed in Supreme Court is a valid one. I note that the filed agreement, a copy of which was shown to the court on January 16, 2020, provides that W.G. shall have “sole legal guardianship” of the children, and that Y.N. shall pay W.G. $3,000 per month child support and $3,000 per month spousal support. The provisions for Y.N.’s contact with the children are vague at the best.

Parts of the agreement, such as “vacation parenting time” and “special and extraordinary expenses” are left blank. [ 9 ] The children have never been in W.G.’s primary care since the separation. They have continued to reside with Y.N. W.G. moved to Vancouver following the separation, continues to reside there and he exercises sporadic parenting time. [ 10 ] With the application she filed in June 2017, Y.N. filed a notice of motion and affidavit seeking a without notice protection order.

There had been an incident at the children’s daycare between W.G. and some child care workers, allegedly, that resulted in W.G. being charged criminally. The Ministry of Children and Family Development was also involved, and they entered into a safety plan with Y.N., whereby she agreed that W.G. would have no contact with the children until another safety plan was reached and presumably until there had been a child protection investigation. [ 11 ] A without notice protection order was granted in these proceedings by Judge Cartwright on June 25, 2017.

On July 11, 2017, Judge Burdett made an interim consent order, granting W.G. parenting time, arranged through a third party, each Tuesday and Saturday. On November 30, 2017, Judge Chapman made an interim without prejudice consent order granting primary residence to Y.N., parenting time to W.G., and ordering W.G. to pay child support of $300 per month. [ 12 ] On January 12, 2018, there was a Family Case Conference in these proceedings.

At that time, the parties agreed to an interim consent order, whereby Judge Heinrichs gave sole parental responsibilities to Y.N. for a period of one year, and W.G. was given parenting time each Saturday. On June 27, 2018, there was to be a trial but it was adjourned by consent. The parties agreed to a consent order, in which Judge Wyatt ordered that W.G. have parenting time and that parties were to go to the Judicial Case Manager’s office and set a new trial date on the issues of guardianship, child support, parental responsibilities and a protection order.

It is important to note that the parties were represented by counsel throughout these various court proceedings. [ 13 ] There are no Supreme Court orders other than the December 2019 order declaring the family law proceedings commenced by way of Notice of Family Claim a nullity. The parties have been governing themselves according to the orders in this court and have returned to this court regularly to assist them in their dispute about issues related to the care of and support of their children.

PARTIES’ POSITIONS [ 14 ] W.G.’s position is somewhat confusing. In regards to his current counterclaim filed in October 2019, he is seeking to have these provincial court proceedings consolidated with Supreme Court proceedings, which his counterclaim says is set for trial in June 2020. Those proceedings have now been declared a nullity, save and except for the claim for divorce.

In the proceedings that have been commenced through the filing of the separation agreement, no steps have been taken whatsoever, even though that agreement was apparently filed in 2016. [ 15 ] The parties did not disclose to this court in their originating pleadings that they had entered into an agreement. The validity of that agreement is in issue. The parties have never followed the parenting arrangements set out in that agreement. Instead, they have asked this court on numerous occasions to make orders dealing with the parenting arrangements, protection issues, and child support.

I was told that W.G. did not seek any relief related to the care of support of the children in the Notice of Family Claim filed in Supreme Court; rather, he sought to set aside the terms of the agreement related to family property. That Notice of Family Claim was not exhibited to this court in this application. THE LAW [ 16 ]

Section 194 of the Family Law Act sets out the jurisdiction of the Supreme Court and the Provincial Court to grant orders when related proceedings are before both courts. Section 194(1) states that the starting of a proceeding in one court does not prevent the starting of a proceeding in the other court unless the relief applied for in the second proceeding has already been granted or refused in the first proceeding. [ 17 ] The Supreme Court has not made any orders in either proceeding that W.G. commenced that related to the children of these parties.

The Supreme Court proceeding commenced by W.G. by Notice of Family Claim has been declared a nullity, save and except for the granting of a divorce.

Consolidation of this proceeding with that proceeding is therefore relief that is no longer available. [ 18 ] The only issue that remains, then, is whether the filing of the agreement in Supreme Court by W.G. leads to the conclusion that this court’s orders over the past 2 1/2 years related to care and support of the children ought to be declared nullities as W.G.’s counsel suggests, or whether this proceeding ought to be consolidated with the Supreme Court proceeding in which the agreement is filed. [ 19 ] Rule 2-1(1) of the Supreme Court Family Rules states that a copy of a written agreement may be filed, and Rule 2-1(3) states that “without limiting any other power the court may have to enforce an agreement filed under this rule, the court may make an order for that purpose on an application...”. [ 20 ] Section 44(3) of the Family Law Act provides that a written agreement respecting parental arrangements that is filed in the court is enforceable under this Act as if it were an order of the court.

Section 44(4) allows a party to apply to set aside or replace with an order all or part of the agreement.

In that section, and with reference to s. 1 of the Act , “court” clearly includes the Provincial Court and the Supreme Court. [ 21 ] I do not see anything in ss. 194 or 44 of the Act , or in the Supreme Court Family Rules or the Provincial Court (Family) Rules that would cause this court to conclude that the orders made regarding the parties’ children over the past 2 1/2 years ought to be declared nullities, or that this court ought to decline to hear further matters and consolidate this matter with the Supreme Court proceeding.

The Supreme Court has not made any orders regarding parenting arrangements or support, nor has it even been asked by the parties to make any such orders. The filing of a disputed separation agreement by W.G., who took no further steps in that proceeding to enforce or vary the agreement, does not result in the conclusion that the Supreme Court has “occupied the field” of parenting arrangements. In fact, the actions of these parties result in the opposite conclusion.

Both parties participated in the Provincial Court proceedings from 2017 to 2019, asking the court to make parenting orders, not once arguing, until October 2019, that this court does not have jurisdiction. [ 22 ] Under s. 194, the Provincial Court had and continues to have jurisdiction to make orders for guardianship, parental responsibilities, parenting time, support, and protection orders. There are currently no applications in Supreme Court other than for a divorce.

I decline to make an order consolidating the Provincial Court proceedings with the proceeding in Supreme Court in which the application is filed. [ 23 ] In the result, W.G.’s application filed by way of counterclaim on October, 2019 is dismissed. [ 24 ] That leaves me to rule on Y.N.’s application to obtain passports without W.G.’s signature, and to dispense with the need for her to obtain a travel consent letter from him when she is travelling internationally with the children. [ 25 ] I was told by Y.N.’s lawyer that when it was time to renew the passports of the children, W.G. consented, but when a representative from Passport Canada called him to confirm his consent, due to the fact he does not speak English, the communication with the Passport Canada representative was not successful and the passport was therefore not renewed.

I was advised that Y.N.’s mother lives in China and is in poor health, and at some point she wants to be able to go to China with the children to see her mother. The lawyer appearing for W.G. on this application was actually an agent for W.G.’s counsel, and was not given instructions in respect of Y.N.’s application. [ 26 ] I will make the following order on the passport issue. Y.N., through her lawyer, is to provide to W.G. through his lawyer, a completed passport application or renewal application for each child, by no later than February 14, 2020.

W.G. is to return the completed passport applications to Y.N. through their respective lawyers by no later than March 6, 2020. He is also to provide to her, through counsel, a notarized letter addressed to Passport Canada confirming his consent to the renewal of the passports for the children. She may then apply for the passports, providing to Passport Canada a copy of this order, and she will retain possession of the children’s passports when she receives them. [ 27 ] In regards to the travel consent, I was told that at this point, Y.N. has no travel plans.

I hereby order that if she makes plans to travel to China with the children, she shall provide a travel consent for his signature to W.G. through counsel. He shall not unreasonably

withhold his written consent to such a trip. If the parties are unable to reach an agreement, Y.N. has liberty to apply for a court order. If the court, on such application, finds that W.G. has unreasonably withheld his consent to such a trip, he is hereby put on notice that he may be ordered to pay Y.N.’s expenses incurred in bringing the application. _______________________ The Honourable L.D. Wyatt Provincial Court Judge