T.AC. v. W.M.C., 2024 BCPC 21

Citation: T.AC. v. W.M.C. 2024 BCPC 21 Date: 20240124 File No: 18321 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: T.A.C. APPLICANT AND: W.M.C. RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. BENNETT Counsel for the Applicant: C. Matthee-Johnson Appearing for the Respondent: No Appearance Place of Hearing: Kamloops , B.C.

Date of Hearing: January 17, 2024 Date of Judgment: January 24, 2024 [ 1 ] T.A.C. filed an Application for a Case Management Order (ACMO) in which she applies for the following procedural orders pursuant to s. 62(

m) of the Provincial Court Family Rules:

a) The issues under

Part 4 (Parenting), 7 (Child Support) and 9 (Protection) of Family Law Act claimed by the parties’ Amended Notice of Family Claim and the Counterclaim in Supreme Court file 61312, are set for hearing in the Provincial Court of British Columbia;

b) The following documents from Supreme Court file 61312 are to be filed by Counsel by Requisition as pleadings in this matter: a.

Schedule 2 of the Amended Notice of Family Claim filed August 24, 2022; and b.

Schedule 2 of the Counterclaim filed August 4, 2022.

c) A Judicial Case Conference having been held and requirements of that process met, the requirement of a Family Management Conference in this matter is waived;

d) The requirement of all parties filing Parenting After Separation certificates is waived, but the parties are required to complete and file those certificates within 30 days of this order;

e) Consents having already been filed, the parenting and protection order issues shall proceed as an informal trial under Division 5 of

Part 9 of the Provincial Court Family Rules;

f) The parties shall forthwith set a date with the Judicial Case Manager for a pre-trial conference on the conduct of this informal trial; and

g) In the alternative, the applicant seeks directions on how to implement the Supreme Court Order made December 20, 2023. [ 2 ] The applicant brings this application further to paragraphs 18 and 19 of the Order granted by the British Columbia Supreme Court on December 20, 2023 (Schedule A to the ACMO). Paragraphs 18 and 19 of that Order read as follows: 18. That parenting time, parenting responsibilities, and protection order issues in this matter are transferred to the Provincial Court of British Columbia to be heard in Kamloops File #18321.

For greater certainty the parties have consented to resolution of the parenting time, parenting responsibility and protection order issues by means of the informal trial process, being Division 5 of

Part 9 of the Provincial Court Family Rules . 19. The parties shall forthwith file their consents to proceed as an informal trial under the Provincial Court Family Rules. [ 3 ] The informal pilot project is only available through the Provincial Court, Kamloops Registry, through Division 5 of the Provincial Court Family Rules .

Section 124 of the Provincial Court Family Rules explains the purpose of the project, which is to provide a trial process in which the trial judge is able to take a facilitative role to direct, control and manage the conduct of the trial.

Section 125 requires both parties to consent to the process, and further requires the Provincial Court judge conducting the trial to agree that the informal trial is appropriate.

The court canvasses suitability for the informal trial project in advance of scheduling the matter for informal trial, and by way of mandatory pre-trial planning conferences. [ 4 ] Counsel for T.A.C. submits that the procedural orders sought in the ACMO, including the orders for an informal trial, are appropriate because (1) both parties consent to the process (consent being a requirement under s. 125(a)), and (2) the Justice ordered that the parenting issues be transferred to Provincial Court to be conducted by way of an informal trial.

Counsel argues that W.M.C. has a history of non-compliance with various Supreme Court formalities and procedures, and submits that the informal trial process will assist with a more efficient and expedited resolution of the outstanding parenting and child issues. [ 5 ] Even if I had jurisdiction to grant the procedural orders, and I do not believe I do, my

interpretation of the Justice’s order is not that I must agree to grant the orders. Rather, I interpret the order as confirmation that the parties have consented to a certain process and as a direction to enable the informal trial process to proceed if appropriate, and provided I have authority. [ 6 ] This leads me to the real issue on this application: Does the Provincial Court have jurisdiction to hear the outstanding parenting matters? [ 7 ] Counsel confirms that the order attached as

Schedule A was made without a hearing, by consent, and spoken to at a Supreme Court case planning conference. Counsel for T.A.C. drafted the order to reflect the terms of settlement that the parties reached prior to the case planning conference. He submits that the order was vetted by the presiding Justice during the conference, and endorsed at that time. Notwithstanding, it does not appear that either counsel for T.A.C. or W.M.C. turned their mind to the jurisdictional issue raised as a result of

section 194 of the Family Law Act. That

section reads: Overlapping Court Jurisdiction 194

(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 courtdoes 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 hasalready 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 jurisdictionunder

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

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 inthe 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 orterminating 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 aresult.

(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 allpurposes.

(6) Nothing in this

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

section 233 [appeals from ProvincialCourt orders]. [8] Applying the law to the facts of this case, I note that at a Judicial Case Conference (JCC) on October 19, 2022, the SupremeCourt granted various orders in relation to both parenting and child support (Schedule B to the ACMO).

In terms of parenting orders, theparties agreed and the Court ordered that they obtain a s. 211 non-evaluative views of the child report, that they mutually restrict the useof alcohol or controlled substances during contact or parenting time, that W.M.C. will have parenting time on Fridays commencing afterschool at 2:30, or on Thursdays when Friday is an in-service day, and that W.M.C. have any other parenting time that can be agreedupon. [9] In terms of child support orders, the Supreme Court further ordered that on an interim without prejudice basis T.A.C. will pay toW.M.C. the sum of $718 per month for child support.

The Court made additional orders for financial disclosure. [10] At the December 20, 2023 case planning conference, the Supreme Court suspended the child support order pendingdetermination of the parenting issues in Provincial Court. The Justice made no further orders with respect to the parenting orders thatwere made in October 2022, nor did he suspend them.

As such, the parenting orders made at the JCC are still in effect, and I have noauthority under s. 194(4) to change, suspend or cancel them. [11] Immediately following my oral decision on this matter, counsel for T.A.C. stated that he might direct his client to return toSupreme Court to suspend the parenting orders, similar as was done with the child support orders. In my view, such a tactic would notnecessarily make a difference. The Supreme Court already “occupied the field” when it made orders on these issues, and the ProvincialCourt does not have any authority to make further orders. (See Auxi v.

Menton, (BCSC), and NP v. LB, 2023 BCPC175). [12] Given the Supreme Court history of this litigation, I find this case falls squarely within s. 194(1) and (2). The Provincial Courtcannot make orders on matters that have already been determined by the Supreme Court.

Further, and absent any legal authorityconfirming otherwise, it is my understanding that neither the Supreme Court, nor the parties, can give this court jurisdiction whether byorder or consent if this court does not otherwise have jurisdiction. [13] Even if I did have jurisdiction, I find that the procedural orders sought are inappropriate in any event. The Provincial FamilyCourt Rules require a certain process to be followed by parties who are engaged in family law litigation, and there are several additionalrequirements for parties who agree to participate in the informal trial project.

Counsel has not provided a reason why the parties shouldbe exempt from these requirements aside from his submission that W.M.C. has been non-compliant with the Supreme Court formalities. Likewise, counsel submits that W.M.C. cannot be relied upon to comply with any Provincial Court filing deadlines. [14] Non-compliance is not a reason to exempt parties from filing formalities, nor do I find that either party would suffer anyprejudice if the Provincial Court Family Rules were enforced. I reach this conclusion especially given my review of their ProvincialCourt history: 1.

Since April 2021, and beginning with T.A.C., both parties have filed a number of applications in Provincial Court. The applicationshave included repetitive applications for parenting orders, child support and protection orders. At times, each party abandoned theirapplication(s), and refiled after a period of delay; 2. I am unware when the parties commenced proceedings in Supreme Court, but the materials make it clear that, since 2022 at least,they have been litigating simultaneously in both levels of court and at times on overlapping issues. Even as recently as this past

December 2023, T.A.C. through her counsel filed an Application About a Priority Parenting Matter in Provincial Court. She discontinued that application on December 21, 2023, the day after the Supreme Court Order. The duplicity of proceedings since 2021/2022 has taken up considerable court time and resources, and is to be discouraged; 3.

If I were to allow the procedural orders by allowing the parties to bypass the filing requirements of the Provincial Court Family Rules , some of the orders requested in the ACMO, such as the applicant’s request to rely on the Supreme Court pleadings as a substitute for Provincial Court pleadings, would undoubtedly create confusion for court registry staff and others in this Court; and

Section 125 of the Provincial Court Family Rules requires the court to assess whether a case is suitable for the informal trial process before scheduling the matter for informal trial. As such, the applicant’s request to have this matter proceed as an informal trial before the matter has been properly vetted for the project is inappropriate. [ 15 ] For these reasons, I dismiss the application, decline to hear the matter under section 193(3)(a), and direct the parties back to the British Columbia Supreme Court to finalize the outstanding issues. _____________________________ The Honourable Judge L. Bennett Provincial Court of British Columbia