M.C. v. D.C. Date:, 2013 BCPC 212

Citation: M.C. v. D.C. Date: 20130711 2013 BCPC 0212 File No: 20001-13568 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: M.C. APPLICANT AND: D.C. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. LOW Counsel for the Applicant: R. McQuillan

Appearing on their own behalf: D.C. Place of Hearing: Vancouver , B.C. Date of Hearing: July 11, 2013 Date of Judgment: July 11, 2013 [ 1 ] THE COURT: The applicant, D.C., is the natural father of four children, I.C., M.C., TC., and JC., aged 19, 17, 15, and 13 years, respectively. Mr. D.C. separated from their mother, M.C., the respondent, in 1999. [ 2 ] In 2002, Judge White of this court granted the respondent custody of the children and, with the parties' consent, ordered that they were to have joint guardianship of the children.

The applicant was also granted specified access to the children. [ 3 ] In 2004, Judge White's order was varied to some degree by Judge Romilly but the respondent retained sole custody of the children with joint guardianship remaining in place in favour of both parties. [ 4 ] In 2007, Judge Davis awarded the respondent sole custody and sole guardianship of the four children. [ 5 ] The applicant, D.C., has brought on an application to vary Judge Davis' 2007 order and seeks other relief. Specifically, Mr.

D.C. seeks an order that he have joint guardianship of the children as contemplated by s. 39 of the Family Law Act . [ 6 ] The respondent's counsel submits that before the court can consider Mr. D.C.’s application for guardianship, he must comply with Rule 18.1 of the Provincial Court (Family) Rules . The applicant submits that Rule 18.1 only applies to situations as contemplated by s. 39(3) of the Family Law Act . [ 7 ] I do not agree with the applicant, Mr. D.C. Section 251(1)(

b) of the Family Law Act provides that if an order was made prior to the coming into force of the Family Law Act , which is the situation here, providing a party with access to a child but not custody or guardianship, then the party in question has contact with the child. [ 8 ] In short, at present, the applicant, Mr. D.C., has contact with the four children which are the subject of that application as contemplated by Division 4 and specifically s. 59 of the Family Law Act . The applicant, Mr.

D.C., does not have guardianship of the four children as contemplated by s. 39(1) of the Family Law Act . [ 9 ] I note that the Family Law Act specifies in Division 2 a considerable number of responsibilities and obligations which flow from guardianship. The applicant has none of these responsibilities or obligations. [ 10 ] Rule 18.1 makes no distinction between those persons contemplated in s. 39(3) and those persons contemplated in s. 251(1)(b). Rule 18.1(1) is mandatory.

It stipulates that, at a minimum, anyone seeking guardianship of a child must file an affidavit in Form 34 of the Provincial Court (Family) Rules before the application can be heard. [ 11 ] Therefore, I have determined that before I can hear Mr. D.C.'s application for guardianship he must first file an affidavit in Form 34. [ 12 ] Now, Mr. D.C., I am assuming you understand my ruling. At this point in time, I cannot hear your application for guardianship. Now, I have already discussed this with Mr. McQuillan in your presence and I think you understood that discussion.

Do you wish to file the affidavit? [ 13 ] D.C.: By the affidavit, you mean all those things, registering -- [ 14 ] THE COURT: The affidavit in -- [ 15 ] D.C.: -- your criminal record check, et cetera, et cetera? [ 16 ] THE COURT: -- Form 34 -- [ 17 ] D.C.: Yes. [ 18 ] THE COURT: -- of the Provincial Court (Family) Rules . I understand you were given a copy of that affidavit -- [ 19 ] D.C.: Yes. [ 20 ] THE COURT: -- back in May. That is the -- [ 21 ] D.C.: It means the 5.1, right, under FLA ? That is what is being referred to? [ 22 ] THE COURT: Are we -- is he talking about -- [ 23 ] MR.

McQUILLAN: Form 34, yes. [ 24 ] D.C.: Yes. [ 25 ] THE COURT: Yes, Form 34.

[ 26 ] D.C.: Okay, I understand, okay. And what is the question? I understand what you say. [ 27 ] THE COURT: Do you wish to file that affidavit? You understand -- I will make it as clear as I can for you, sir. [ 28 ] D.C.: Yes, you will go -- [ 29 ] THE COURT: I cannot hear -- [ 30 ] D.C.: Right. [ 31 ] THE COURT: I cannot hear your application for guardianship in the absence of that application -- or affidavit. [ 32 ] D.C.: Okay, I understand.

I hear what you said. [ 33 ] THE COURT: So do you wish to file the affidavit? [ 34 ] D.C.: No, I am their father -- [ 35 ] THE COURT: All right. [ 36 ] D.C.: -- and this is insulting and ridiculous and -- [ 37 ] THE COURT: All right. Now -- [ 38 ] D.C.: -- I am not going to file that. [ 39 ] THE COURT: -- and by the way, sir, I am not interested in comments like that any further. And if you persist in making those comments I am not going to hear you any further.

I have made a ruling in the matter and that is the end of the matter. [ 40 ] Now, so on that basis, then -- and I want to be clear with you, sir: you understand that in the absence of that affidavit, I cannot hear your application for guardianship? [ 41 ] D.C.: I understand. [ 42 ] THE COURT: I take it then, sir, are you pursuing your application to cancel the restraining order? [ 43 ] D.C.: Yes. [ 44 ] THE COURT: And are you pursuing the application to cancel your arrears? [ 45 ] D.C.: Yes. [ 46 ] THE COURT: And I take it you are prepared, Mr. McQuillan, to proceed on that basis? [ 47 ] MR.

McQUILLAN: I am, Your Honour, yes. [ 48 ] THE COURT: Well, I think that I am at a stage, though, so that everyone is clear for the record, I dismiss Mr. D.C.'s application for joint custody and joint guardianship since I am not in a position to deal with the matter as evinced by my ruling. [ 49 ] So how do you wish to proceed now, sir? [ 50 ] D.C.: May I ask you a very quick question? [ 51 ] THE COURT: Yes. [ 52 ] D.C.: A very short question.

What if my children come and make their home with me? [ 53 ] THE COURT: I cannot give you any advice. [ 54 ] D.C.: You cannot tell me what would happen legally? [ 55 ] THE COURT: No, I cannot, sir. [ 56 ] D.C.: Okay, whether I would have to go through that form, you cannot tell me that? Okay. [REASONS FOR JUDGMENT CONCLUDED]