A.K.B. v. A.D.W., 2021 BCPC 182

Citation: A.K.B. v. A.D.W. 2021 BCPC 182 Date: 20210728 File No: 12969 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A.K.B. APPLICANT AND: A.D.W. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE

Counsel for the Applicant: A. Oullet Counsel for the Respondent: S. Maroney Place of Hearing: Colwood , B.C. Date of Hearing: July 14, 2021 Date of Judgment: July 28, 2021 The Issue [ 1 ] Mr. W seeks an order to transfer this file from the Duncan Registry of this court to the Vancouver Registry for all purposes. Background [ 2 ] Ms. B and Mr. W lived together in Vancouver from January 1, 2017 to July 1, 2021. They have one child, now age 3. The child was born in Vancouver, and lived there with Ms. B and Mr. W until July 1, 2021. [ 3 ] On June 30, 2021, Ms.

B commenced this proceeding in the Duncan Registry of this Court. On the same day, she appeared before my colleague, the Honourable Judge Cutler, who granted an ex parte protection order restraining Mr. W from having any contact with her or with the child. It should be noted that Judge Cutler was sitting in Duncan and Ms. B appeared by telephone from Vancouver. It appears from the transcript that Judge Cutler was not asked to consider whether the proceeding should have been initiated in the Vancouver Registry. [ 4 ] On July 1, 2021, Ms.

B and the child left the family home in Vancouver and went to her parents’ home on Vancouver Island, where they now reside. Ms. B gave no advance notice of the move to Mr. W. Mr. W has applied for an order to: (

i) set aside the protection order; (ii) require Ms. B and the child to return to reside in Vancouver; and (iii) allocate parenting time and parental responsibilities between the parents. [ 5 ] Ms. B and Mr. W have agreed that Ms. B and the child may continue to reside with Ms. B’s parents pending a trial of the substantive issues, and that Mr. W will have supervised parenting time with the child on Vancouver Island every Saturday. [ 6 ] Although there are flights from Vancouver to Vancouver Island, the only practical method of transportation for these parties is by car and ferry.

The trip between Vancouver and the home of Ms. B’s parents takes about 4 hours in either direction. So, whether the trial takes place in Vancouver or on in Duncan, one parent will be required to travel about 4 hours from one place to the other and stay overnight, probably for 2 or 3 nights, to attend the trial. The Statute [ 7 ] Until May 17, 2021, family law proceedings in this court were governed by the Provincial Court Family Rules BC Reg 417/98 (“the Old Rules ”).

The OId Rules were repealed and replaced by the Provincial Court Family Rules BC Reg 120/2020 (“the New Rules ”), which came into effect on May 17, 2021. This proceeding was commenced on July 1, 2021, and so is governed by the New Rules . [ 8 ] Under the Old Rules, a family law proceeding could be initiated by filing an application in any registry of the court.

Rule 7 of the New Rules provides that, where there is no existing proceeding between the parties and there are child-related issues, a family law proceeding is to be commenced by filing an application in the registry closest to the place where the child resides. [ 9 ] Rule 19(4) of the Old Rules required the judge, on an application for change of venue, to consider “the balance of convenience” and “any special circumstances that exist”. Rule 62 of the New Rules empowers a judge to make an order transferring a court file from one registry to another, either for specific purposes or for all purposes.

The New Rules : a. do not expressly direct a judge hearing such an application to consider either the balance of convenience or any special circumstances of the case; b. provide no express direction as to the factors to be considered on the application. Discussion [ 10 ] In civil proceedings in the superior courts, the general rule is that the plaintiff has the right to choose the forum, and that the court may over-ride the plaintiff’s choice only if the defendant can demonstrate an “… overwhelming preponderance of convenience shown by the defendant which ousts the right of the plaintiff …”: McDonald v.

Dawson [1904] OJ No. 42 ; Long v Shields 2020 BCSC 1162 ; [2020] BCJ No. 1226 . [ 11 ] In S.B.A. v. S.L.A. 2005 BCPC 724 ; [2005] BCJ No. 3188 , my colleague, the Honourable Judge Wingham, concluded that, in family cases in this court, the question is simply one of the balance of convenience, to be assessed by reference to the personal and financial burdens which the choice of venue is likely to impose upon each party, and without any presumption in favour of the forum chosen by the applicant. That decision was followed and applied in J.T. v. N.D. 2014 BCPC 76 ; [2014] BCJ No. 880 and in L.R.H. v.

J.J.H . 2016 BCPC 310 ; [2016] BCJ No. 2135 . Each of those cases was decided under the Old Rules . [ 12 ] Rule 7(1) of the New Rules provides that, where there is no existing proceeding between the parties and a child-related issue exists, the registry that “… must be used for filing a form or document …” is “… the registry closest to … the residence where the child lives most of the time …” (underlining added).

Section 29 of the

Interpretation Act RSBC 1996 c 238 provides that “… ‘must’ is to be construed as imperative …”. For that reason, Ms. B was required to commence this proceeding in the Vancouver Registry. [ 13 ] It appears to me that this provision of the New Rules was intended to address a problem which gives rise to frequent disputes in

this court; i.e. situations in which one parent has made a unilateral decision to relocate a child or children away from the family home. In R.A.H. v. N.J.G. (BC SC), [1998] BCJ No. 2481; 65 BCLR (3d) 319; 43 RFL (4th) 67 @ paragraph 51, JusticeMcKinnon referred with approval to the following passage: One parent cannot unilaterally change the child's habitual residence by surreptitiously relocating the child. Some authority exists that theparent who had custody of a child could change the child's residence as an incident of custody. In Carter v.

Brooks [cites omitted], theOntario Court of Appeal removed any uncertainty about the point that may have existed. It held that the custodial parent did not have aright to change unilaterally the child's residence. The child's residence was too important a factor for one parent to have control over it.Change in residence required parental agreement or a court order. [14] Rule 7(3) of the New Rules provides that, with leave of the court, an application for a protection order may be filed and heard ina Registry other than the one in which the proceeding was commenced. Ms.

B did not seek leave for her protection order application tobe heard in Duncan. It appears from the transcript of the hearing before Judge Cutler that: (

i) he was not asked to grant such leave; and(ii) the application proceeded on the unstated assumption that the proceeding had been properly commenced in the Duncan Registry. [15] In this case, Ms. B ought to have commenced this proceeding in the Vancouver Registry. She ought then to have filed herprotection order application in the Vancouver Registry and, if so advised, sought leave from a judge in the Vancouver Registry to havethe protection order application heard in Duncan. [16] In Thomson v.

Merchants Bank of Canada (1919) (SCC), 58 SCR 287, Justice Anglin said: The maxim “… equity looks upon that as done which ought to have been done …”, though of very extended, is certainly not of universalapplication. Equity will not thus consider things in favour of all persons, but only of those who have a right to pray that the thing shouldbe done. Rule 69 of the New Rules confers on Mr. W the right to “pray” that the file be transferred to Vancouver. Applying the principle stated inThomson, I should address this application as I would if: (

i) the proceeding had been commenced in the Vancouver Registry; and (ii) Ms.B had applied for a change of venue from Vancouver to Duncan. [17] Rule 69 of the New Rules empowers the court to order a change of venue, but gives no guidance as to the principles to be appliedon such an application. I cannot imagine that the Legislature intended the court to ignore the balance of convenience. However, I thinkthat Rule 7(1) of the New Rules creates a presumption in favour of the registry closest to the child’s residence. Given that presumption, Ithink that Ms.

B carries the onus of showing a decisive balance of convenience in favour of trial in Duncan. That onus is undischarged inthis case. Disposition The file will be transferred to the Vancouver Registry for all purposes. July 28, 2021 ____________________________ T. Gouge, PCJ