N.P. v. L.B., 2023 BCPC 175

Citation: N.P. v. L.B. 2023 BCPC 175 Date: 20230627 File No: 18773 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: N.P. APPLICANT AND: L.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. BENNETT Counsel for the Applicant: A. Soll Counsel for the Respondent: U. Zobel Place of Hearing: Kamloops , B.C.

Date of Hearing: June 14, 2023Date of Judgment: June 27, 2023 A Corrigendum was released by the Court on July 25, 2023. The corrections have been made to the text and the Corrigendum isappended to this document. Decision re: Jurisdiction [1] The issue before me is whether the Provincial Court of British Columbia should assert exclusive jurisdiction and hear this matterpursuant to s. 194(1), (2) and (3) of the Family Law Act (“FLA”). [2] By way of background, this case involves the child, K.P., born [omitted for publishing] (“K.P.”).

K.P. was born in [omitted forpublishing] and spent the first four years of his life with both parents in [omitted for publishing]. Between summer 2021 and spring2022, the parties relocated to Kamloops. K.P. attended day care in Kamloops and in September 2022 began attending Kindergarten inKamloops. It is not disputed that in late October 2022, and while N.P. was away at work, L.B. removed K.P. from Kamloops andrelocated back to [omitted for publishing] without notice. N.P. immediately filed an Application About a Priority Parenting Matter in theKamloops Registry of the Provincial Court.

In his application, he asked the court to make orders that he have custody [sic] of K.P. andthat K.P.’s residence be with N.P. in Kamloops. That application came before me on November 9, 2022. [3] L.B. attended the first appearance with duty counsel, and N.P. attended with his former counsel. L.B. opposed the application,and at that time neither party had yet filed a substantive application to deal with the ultimate parenting issues. As such, the Court had noauthority to grant the substantive orders sought by N.P.

The matter was stood down to give the parties and their lawyers an opportunityto have a discussion. [4] By the time the matter was recalled later in the day, the parties had reached a number of agreements regarding N.P.’s parentingtime, and those agreements were incorporated into an interim consent order all of which was without prejudice. The parties were thendirected to attend the JCM’s office to fix a hearing date on the relocation issue.

That hearing was scheduled for February 16, 2023. [5] For reasons I need not get into, the relocation hearing did not proceed as scheduled in February, and on April 4, 2023 N.P.’scounsel adjourned his application generally. [6] Each of the parties have now filed applications to deal with the relocation and other substantive parenting issues.

L.B. filed herapplication in Provincial Court on February 24, 2023, and N.P. filed Supreme Court proceedings on February 27, 2023. [7] Despite the various outstanding issues, which include N.P.’s claim for property division in Supreme Court, the parties first wishto resolve where K.P. will be attending school this coming September. L.B. believes he should attend school in [omitted for publishing]where she and K.P. continue to reside.

N.P. believes K.P. should return to Kamloops for Grade 1. [8] Now that proceedings are ongoing in two different levels of court, the parties disagree as to where the issues should be litigated. [9] Counsel for N.P. argues that the parenting matters should all be heard in Supreme Court, and suggests that the pressingschooling issue can be determined by way of affidavit evidence during a two hour chambers application. Ms. Soll submits that theProvincial Court does not need to assert jurisdiction because this court has not yet granted orders or pronounced on the substantiveparenting issues. Ms.

Soll further submits that the without prejudice orders made to date do not constitute orders that result in theProvincial Court “occupying the field” of parenting orders. Ms.

Soll argues that having all matters heard in Supreme Court will spare theparties the time and expense of litigating in two different courts, she notes delays with getting quick trial dates in Provincial Court, andsubmits that K.P.’s physical and emotional well-being is at risk if the question about where he attends school in the fall is not resolvedpromptly. [10] Counsel for L.B. argues that the parenting issues should remain in Provincial Court despite any scheduling delays. Ms. Zobelargues that the property issues can be easily severed from the parenting issues. Ms.

Zobel also indicated she will be removing herself asL.B.’s counsel because she does not practice in Supreme Court and also due to personal health reasons. Ms. Zobel submits that she hasmade several attempts to find alternate legal aid counsel for L.B., and as of the time of this application those search efforts had not beensuccessful. Accordingly, Ms. Zobel argues that if L.B. has to self-represent in Supreme Court, the complexity and cost of the SupremeCourt process will be very real concerns for her client. Ms.

Zobel disputes any suggestion that K.P.’s physical and emotional wellbeingare at risk if the matters remain in Provincial Court, and further argues that s.194 of the FLA requires the Provincial Court to retainjurisdiction given the interim orders that have been made to date. The Law [11] It is settled law that once orders for family law relief are made in Provincial Court, the Supreme Court should not entertainfurther proceedings at first instance. The law is equally settled that any reference to family law relief made in Provincial Court includesinterim orders.

In JF v MM, 2022 BCSC 1747 , the Provincial Court granted protection orders, but no substantive orders. Theclaimant argued in Supreme Court that the Provincial Court had not “occupied the field” with respect to parenting orders. In deciding thejurisdictional question, Master Hughes stated that the claimant’s argument did not properly consider the nature and effect of the existingProvincial Court protection order. Master Hughes also noted the importance of judicial comity and avoidance of multiple proceedings asdiscussed in Auxi v Menton, (BCSC).

At paragraph 31 Master Hughes stated: “…although the protection order is not a parenting order per se, it does affect the claimant’s ability to exercise parenting time with A inthe sense that it places limits on how that parenting time may be exercised. The interim consent order made on August 18, 2022, also

imposes certain conditions on the claimant’s exercise of his parenting time. In my view, the Provincial Court has made orders regarding parenting time.” [ 12 ] Given the orders made in Provincial Court, Master Hughes was satisfied that s. 194(2) of the FLA applies and determined that the Supreme Court no longer had jurisdiction to deal with the parenting issues between the parties. [ 13 ] Similarly, in the case before me, there are already interim orders in place. I granted the first interim order on November 9, 2022.

The agreement consisted of nine terms, eight of which affected N.P.’s ability to exercise parenting time. The terms included that N.P. will have parenting time every weekend in a calendar month that has a long weekend, parenting time for one weekend a month where there are no long weekends, the agreement addressed the location of exchanges, the sharing of reasonable travel costs and accommodation expenses, the parties agreed they will advise each other of any matters of a significant nature affecting the child, and they dealt with FaceTime communication and Christmas 2022 parenting time.

That order was filed on February 14, 2023. [ 14 ] Subsequent to that appearance, the parties appeared back in court on February 15, 2023 to address further particulars of N.P.’s parenting time. Among other terms, they specifically agreed that N.P. would have parenting time over the upcoming spring break, and they agreed to expand N.P.’s weekend parenting time to include at least two weekends per month, including all long weekends and non- instructional days. The Honourable Judge Frame granted the interim consent order which also included conduct orders.

That order has yet to be filed; I’m told by counsel for N.P. that the order is still in draft form and that it may need to be settled. [ 15 ] The fact that my order was without prejudice , and the fact that two of the eight terms of Judge Frame’s order were without prejudice , does not take away from the intent and effect of the orders. Both orders affect N.P.’s ability to exercise parenting time.

The words “ without prejudice ” on their own and without more simply imply that the interim arrangements are not determinative of a final order. [ 16 ] On its own and without further specification, the term without prejudice is often included in agreements and family court orders to provide a level of comfort and assurance to a party, or perhaps to both parties, that the order will not have a prejudicial effect on the ultimate outcome or ruling which can only occur after each side tenders evidence.

Without prejudice agreements can be a useful way to bring parties together in relation to short term arrangements pending resolution of the bigger issues. That seems to be what occurred here. [ 17 ] I should add that even where the Provincial Court has “occupied the field”, there are exceptions where the Supreme Court can take jurisdiction. The exceptions were identified in Auxi v Menton (supra), and confirmed by Master Hughes in JF v MM (supra) and include circumstances where:

a) There is a substantial time delay in the Provincial Court application and/or order and the subsequent application in Supreme Court;

b) The application has been brought in Provincial Court but no decision has been made nor hearing scheduled, or if scheduled, it is unlikely that the hearing will or could be held within a reasonable time and it is in the best interest of the children or otherwise necessary to determine the issues more expediently;

c) The children’s physical or emotional wellbeing are at risk or it is otherwise in their best interest to have the matter heard immediately; and

d) Additional relief is claimed in the Supreme Court over which the Provincial Court lacks jurisdiction. [ 18 ] Counsel for N.P. relies on these exceptions, and in response I make the following comments:

a) While I appreciate certain delays do exist with securing hearing dates in Provincial Court, similar delays exist in Supreme Court. Further, the affidavit of Ms. Soll’s assistant confirms that scheduling the matter into July and August in Supreme Court has also already proven to be a challenge due to counsels’ conflicting summer holiday schedules. Since Ms. Zobel does not practice in Supreme Court, additional delays are likely to occur with the scheduling of an application in Supreme Court if L.B. needs to retain new counsel;

b) I will add that based on the submissions I heard, and my review of this file, it seems to me that much of the delay that has already occurred in Provincial Court should fall on the heels of counsel, and not on the judicial system;

c) Next, I note that K.P. is only five years of age. There is no evidence before me to suggest that he is anything other than a healthy, happy, thriving child. I have no doubt that regardless of where he attends grade one, he will adapt and his overall best interests will not be negatively impacted by any delays; and

d) With regard to the last exception, I agree with Ms. Zobel’s submissions that the property division issues can be easily spliced off and dealt with separately in Supreme Court, if necessary. Conclusion [ 19 ] My authority to determine this jurisdictional issue is limited by s. 194(2). While both courts may make an order for the relief sought, s. 194(2) limits the Supreme Court from making an order in this case because relief that is the subject of the Supreme Court application has already been granted or refused by this court in light of the two interim parenting time orders that have been made.

The fact that those orders were either wholly or in part without prejudice makes no difference to their overall purpose as they both impact N.P.’s parenting time. Accordingly, I grant L.B.’s application, and affirm the Provincial Court’s exclusive jurisdiction over this matter. [ 20 ] I reiterate my comments during submissions that any further scheduling delays in Provincial Court might be mitigated if the parties and their counsel re-evaluate their time estimates.

If counsel for N.P. is of the view that her client’s entire case can be presented in Supreme Court in just one hour of submissions, then it is quite possible that counsel’s estimate of five days is not required for a hearing in Provincial Court.

[ 21 ] Lastly, and in response to Ms. Soll’s oral application to withdraw her client’s Application for Priority Parenting Matter, I decline to make that order. It is clear to me from the timing of the oral application and from submissions made, that the sole reason behind the oral application was to advance N.P.’s argument that the triable issues were no longer live issues in this Court, thereby creating a s. 194 exception.

In my view, making the application at this stage amounts to an abuse of process particularly in light of the fact that N.P. previously adjourned his application generally at least once, if not twice. If N.P. still wishes to withdraw or discontinue his application, there is nothing stopping him from doing so in accordance with s.191 of the Provincial Court Family Rules , but any steps by him to withdraw or discontinue his application will not impact my decision that this matter is to remain in Provincial Court. _____________________________ The Honourable Judge L.

Bennett Provincial Court of British Columbia CORRIGENDUM - Released July 25, 2023 In the Reasons for Judgment dated June 27, 2023, the following changes have been made: [1] The first line in paragraph 9 should read: Counsel for Mr. N.P. argues that... [2] The sixth line in paragraph 10 should read: Ms. Zobel disputes any suggestion that … _____________________________ The Honourable Judge L. Bennett Provincial Court of British Columbia