G.B. v. D.B., 2019 BCPC 69

Citation: G.B. v. D.B. 2019 BCPC 69 Date: 20190408 File No: 17130 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: G.B. APPLICANT AND: D.B. RESPONDENT RULING OF THE HONOURABLE JUDGE D.M. McKIMM Counsel for the Applicant: M. Jakeman Appearing in person: D.B. Place of Hearing: Victoria , B.C. Date of Hearing: March 25, 2019 Date of Judgment: April 8, 2019

[ 1 ] There are three applications before the court. First is an application by the respondent for an order determining the amount of arrears for special expenses owing by the applicant pursuant to an agreement dated December 15, 2009. Second is an application by the respondent to vary a child support order made by Judge Brooks on May 26, 2011 to increase the amount of support payable as a result of the increased earnings of the applicant.

The third is an application by the applicant that these applications be heard in the Supreme Court or alternately that if they are to proceed in this court that the applicant, who resides in Japan, not be required to attend personally at the hearing. [ 2 ] On March 25, 2019 I ordered that all of these applications are to proceed in the Provincial Court.

I further ordered that a Pre- Trial Conference be set to allow the hearing Judge to ensure that full and complete financial disclosure by the applicant is exchanged in a timely fashion prior to the hearing and make any other corollary orders necessary for the efficient conduct of that hearing. At that time I advised that written reasons will follow, these are those reasons.

History of the Proceedings [ 3 ] By an agreement dated December 15, 2009 and executed on February 4, 2010 the parties agreed to divide their property, share the custody and guardianship of the children, agreed that the wife has the primary residence of the children, and allow the parties to work out between them the support obligations. [ 4 ] In early 2010 the respondent commenced a Supreme Court proceeding petitioning for divorce, division of property, custody and access as well as spousal and child support.

On October 15, 2010 a master of the Supreme Court made an order granting the respondent the primary care of the children with supervised access to the applicant at certain specified times unless otherwise agreed by the parties. It was also a term of that order that the application to pay child support be adjourned generally. [ 5 ] The applicant refused to pay child support unless, and until, a court order was granted. In response to that demand, the respondent commenced a new proceeding in the Provincial Court limited solely to child support and special expenses for the children.

The applicant filed a reply to that application opposing an order for child support on the grounds that “custody ought to be shared equally”.

He further opposed an order with respect to support because “the parties have never shared financial information or made maintenance payments except since D. has alienated the children from their father by fraud and breach of contract.” [ 6 ] On May 26, 2016, His Honour Judge Brooks of the Provincial Court ordered that child support be paid at a rate of $472 per month based on an annual income for the applicant of $30,000 and the issue with respect to other expenses pursuant to the separation agreement be adjourned for further hearing. The separation agreement was also filed in court at that time.

That agreement provided that, “the parties shall work out the support of the children between them” and further, “the parties agree that they shall share equally any extra expenses for the children, including but not limited to skating lessons and fees, school fees and day-care fees.” The parties also agreed to share any extra medical or dental expenses not covered by either parties’ medical or dental plan.

Both parties agreed as well that either party could bring an application to a court of competent jurisdiction to determine their rights and obligations under the agreement. [ 7 ] On October 31, 2011, His Honour Judge Wood of the Provincial Court made an order fixing the amount of extra expenses for schooling to be paid by the applicant to the respondent in the amount of $638 on the first of each and every month commencing November 1, 2011 and fixing arrears of extra expenses at $366. [ 8 ] On November 2, 2018, the applicant brought an application in the Supreme Court to cancel arrears or reduce arrears accumulated under the Provincial Court orders of Judge Brooks and Judge Woods, to obtain an order of divorce and some further relief with respect to obtaining third-party records from the applicant’s now incapacitated mother.

On December 4, 2018 those applications were before Mr. Justice Tamman of the Supreme Court who directed that an application be brought in the Provincial Court to determine whether or not these issues should be heard in the Provincial Court or the Supreme Court. Position of the Parties [ 9 ] The respondent wishes the matter to remain in the Provincial Court and takes the position that, because all support orders have been made in the Provincial Court, it is this court which has exclusive jurisdiction subject to any conflicting orders being made in the Supreme Court.

She further submits that proceeding in the Provincial Court will offer her an ability to resolve the matter more efficiently and effectively given that the issue will be one of credibility and in particular the credibility of the applicant in his assertions that he is making little income and has a limited ability to make meaningful income. [ 10 ] The applicant submits that the Supreme Court is the preferred forum to litigate these issues. He submits that the Supreme Court is the only court with jurisdiction to issue the order for divorce.

He also points out that the Supreme Court is not able to issue an order for divorce until and unless it is satisfied that reasonable accommodations are made for the support of the children ( section 11 (1) (

a) of the Divorce Act ). The applicant submits that the Supreme Court may be thwarted in its exercise of its divorce jurisdiction in the event that the Provincial Court makes an order which the Supreme Court does not consider a reasonable accommodation. Finally, he submits that since it was the respondent who commenced proceedings in the Supreme Court seeking the relief of child support captured by this application, she should be committed to her original decision.

Discussion [ 11 ] In British Columbia both the Supreme Court and the Provincial Court have concurrent jurisdiction in a number of different areas covered by the Family Law Act . In particular, both courts have jurisdiction over issues revolving around guardianship, parenting and

contact time. Similarly, both have jurisdiction over spousal and child support. Of course, the Supreme Court has exclusive jurisdiction over all issues of divorce and division of property. [ 12 ] Sections 192 of the Family Law Act provides: Supreme Court jurisdiction

(1) Subject to the Divorce Act (Canada) , the Supreme Court has jurisdiction in all matters under this Act.

(2) Subject to the Divorce Act (Canada) , the Supreme Court continues to have jurisdiction in all matters respecting marriage and divorce.

(3) Nothing in this Act limits or restricts the inherent jurisdiction of the Supreme Court to act in a parens patriae capacity. [ 13 ]

Section 193 of the Family Law Act further provides: Provincial Court jurisdiction

(1) Subject to the Divorce Ac t (Canada) and subsection (2) of this section, the Provincial Court has jurisdiction in all matters under this Act.

(2) The Provincial Court does not have jurisdiction to make an order under (

a) Part 3 [Parentage] , except as necessary to determine another family law dispute over which the Provincial Court has jurisdiction, or (

b) Part 5 [Property Division] , 6 [Pension Division] or 8 [Children's Property] .

(3) Nothing in subsection (2) (

b) of this

section prevents the Provincial Court from making an order under

Part 9 [Protection from Family Violence] restricting access to a residence for the purpose of protecting the safety of a family member occupying the residence. [ 14 ] As can be seen there exists a great deal of overlapping jurisdiction between the two courts. The act also contains explicit instruction on how the courts are to manage the issues that arise as a result of this concurrent jurisdiction. Those provisions are found in

section 194 of the Family Law Act . It provides: Overlapping court jurisdiction

(1) If a proceeding respecting a family law dispute may be started in either the Supreme Court or the Provincial Court, the starting of a proceeding in one court does not prevent the starting of a second proceeding in the other court, unless the relief applied for in the second proceeding has already been granted or refused in the first proceeding.

(2) If proceedings are started in both courts and each court may make an order for the same relief, the making of an order by one court does not prevent an application for an order in the other court unless the relief that is the subject of the application to the other court has already been granted or refused by the first court.

(3) If proceedings are started in both courts, a court, on application and to the extent that the matter is within the court's jurisdiction under

section 192 [Supreme Court jurisdiction] or 193 [Provincial Court jurisdiction] , as applicable, may do one or more of the following: (

a) decline to hear a matter; (

b) decline to hear a matter until another matter under this Act, or under any other law of British Columbia or Canada, has been heard in the other court; (

c) consolidate proceedings started in the other court with proceedings started in the court; (

d) hear a matter.

(4) Despite subsection (2), the Supreme Court may change, suspend or terminate, under

section 215 [changing, suspending or terminating orders generally] , an order of the Provincial Court if (

a) the Supreme Court is making an order that affects an order of the Provincial Court, and (

b) the parties would have to go back to the Provincial Court to have the Provincial Court's order changed, suspended or terminated as a result.

(5) If the Supreme Court acts under subsection (4), the Supreme Court's order is deemed to be an order of the Provincial Court for all purposes.

(6) Nothing in this

section authorizes the Supreme Court to change, suspend or terminate an order of the Provincial Court if the Provincial Court has refused to change, suspend or terminate the order, except as provided under

section 233 [appeals from Provincial Court orders] . [ 15 ] The plain reading of this

section indicates that once either of the courts, this Court or the Supreme Court, makes an order in the proceeding, that court should continue its work on that issue. Section 194(2) clearly indicates that jurisdiction inures to one court or the other upon the making of an order. The Family Law Act does not indicate that simply commencing proceedings in either court clothes that court with exclusive jurisdiction. The next question that arises is whether the application to vary an order made in one of the two

jurisdictions is essentially an application for new relief or is it an application for relief that has already been granted or refused. [16] In my view the Family Law Act is to be given a purposeful

interpretation. The Provincial Court made an order determining anappropriate level of child support. In doing so they necessarily considered all of the factors in the Act and in the Federal Child SupportGuidelines (“Guidelines”) which are preconditions to the making of a child support order. That fact does not change simply because theorder in question was a consent order as both courts have an overarching obligation to ensure that children are properly cared forregardless of the wishes of the parents. For example,

section 150 of the Family Law Act provides that all child support orders must bemade in accordance with the Guidelines and that any agreements by the parties to deviate from those Guidelines may be the subject tocourt orders only if the Court is satisfied that those agreements constitute reasonable arrangements for the support of the child. [17] In making the consent orders in this case, the Provincial Court satisfied itself that the orders make reasonable arrangements forthe children.

In the matters presently before the Court, it will be called upon again to determine whether the application to cancel arrearsor to vary the existing order similarly makes reasonable arrangements. That is precisely the same issue that the court addressed in bothorders in 2011.

As a result, an application to vary an existing court order in either court constitutes an application for relief that hasalready been granted or refused as that language is captured in section 194(2) of the Family Law Act. [18] My decision is also consistent with the other decisions on this question from the Supreme Court, in particular thecomprehensive analysis found in the decisions of Power v. Spadafora, 2015 BCSC 1399 and C.R.J. v. L.S.J., 2013 BCSC 1781.

InPower, the Court writes, In essence, s. 194 states that the Supreme Court has jurisdiction to grant a court order unless the requested relief had already beengranted or refused by the Provincial Court. If the Provincial Court has already granted or refused certain relief then the Supreme Courtdoes not have jurisdiction to grant that relief. [Power v. Spadafora at paragraph 29] [19] This Court has already granted two orders dealing with the issue of child support and special and extra expenses. The SupremeCourt has not granted any orders dealing with those issues.

This Court therefore has jurisdiction to the exclusion of the Supreme Courton those questions. This conclusion is not in any way altered simply because there is also relief sought under the Divorce Act. While theSupreme Court has discretion to make child support decisions under the Divorce Act, the law is clear that it will decline to do so if thequestions relating to child support are already fully litigated or in litigation before the Provincial Court under the Provincial legislation,this is so as a matter of judicial comity or respect for each court’s jurisdiction. See Callison v.

Callison, (1989) (BC CA), 39 B.C.L.R. (2ND) 379 (B.C.C.A.). Conclusion [20] I am satisfied that the Provincial Court has jurisdiction to the exclusion of the Supreme Court on the matters regarding childsupport and extra expenses including any applications to cancel or reduce arrears or any application to reduce support going forward. The matter will proceed in this Court.

The Court directs that the matter be set for two days of hearing and that a Pre-Trial Conference beheld within thirty days before the trial judge to ensure that complete disclosure has been made of all financial information and anynecessary corollary orders regarding appearances by Mr. B. at the trial of this matter. BY THE COURT _________________________________ The Honourable Judge D.M. McKimm