T. v D. Date:, 2014 BCPC 76

Citation: T. v D. Date: 20140407 2014 BCPC 0076 File No: 21852 Registry: Fort St. John IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J. T. APPLICANT AND: N. D. RESPONDENT REASONS FOR JUDGMENT RE: RULE 19 APPLICATION OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. J. BRECKNELL

Counsel for the Applicant: Nassim Nasser Counsel for the Respondent: Taryn Moore Place of Hearing: Fort St. John , B.C. Date of Hearing: January 16, 2014 Date of Judgment: April 7, 2014 INTRODUCTION [ 1 ] The Respondent in this family law case, N. D. (Ms. D.) has applied to have the proceedings transferred from the Fort St. John Registry to the Kelowna Registry for all purposes pursuant to Rule 19 of the Provincial Court (Family) Rules (the Rules ). That Application is opposed by the Applicant, J. T. (Mr. T.). [ 2 ] Ms.

D.’s Application was heard on January 16, 2014 but the decision was reserved in hopes that a Family Case Conference scheduled for March 20, 2014 would resolve matters at issue. Unfortunately it did not. BACKGROUND HISTORY [ 3 ] Ms. D. is 26. She is a first aid attendant who primarily resides in Kelowna but was employed on a temporary basis in 2012 near Fort St. John as an oil field medic. [ 4 ] Mr. T. is 29 and is an instrument mechanic apprentice who resides in Fort St. John. [ 5 ] The parties met in Fort St. John when Ms. D. was temporarily employed there.

They had a brief intimate relationship which resulted in Ms. D. becoming pregnant in the summer of 2012. [ 6 ] In November 2012 Ms. D. moved to Kelowna to reside with her mother and receive family support during the course of her pregnancy and subsequently. She continues to live with her mother at this time. [ 7 ] On March 10, 2013 the Parties’ child, J. I. D., was born (J.). [ 8 ] Since J.’s birth Mr. T.’s contact with her has been limited to a few personal visits and some face time visits on Skype. From the evidence presented Ms. D. refuses to permit Mr.

T. unsupervised time with J. at this time contending that J. does not know Mr. T. well enough to be left alone with him. [ 9 ] Mr. T. contests the position taken by Ms. D. concerning his time with J. and contends that she has interfered with his personal contact with her and his contact with her via Skype without good reason. [ 10 ] The Parties also have several other matters at issue in this family law case including J.’s last name and her medical coverage but those matters are not germane to the present application. TRANSFER APPLICATION Ms. D.’s Position [ 11 ] Ms.

D.’s evidence on why the proceedings should be transferred to Kelowna can be summarized as follows;

a) she is a long-time resident of Kelowna and has many close family members, extended family and friends in the central Okanagan area;

b) her family and friends have regular and loving contact with J. and can provide evidence of J.’s bonding with Ms. D. and Ms. D.’s capabilities as a parent;

c) her financial resources are limited at this time to Employment Insurance Benefits of $890 biweekly (approximately $23,300 per annum) and child support of $643 per month (approximately $7,700 per annum) for total income of approximately $31,000. Her income from employment was $46,330 in 2012 and $35,000 in 2011;

d) she hopes to find employment in Kelowna because returning to oilfield work is not conducive to raising a young child. When she does find employment she will incur child care costs;

e) the distance from Fort St. John is approximately 2290 km round-trip which would take 12 hours or more by vehicle and cost up to $400 for fuel alone. An airline ticket from Kelowna the Fort St. John is a $500 return;

g) the only person connected to Fort St. John is Mr. T. with many of his family residing in either Kitimat or Victoria.

Mr. T.’s Position [12] Mr. T.’s evidence on why the proceedings should not be transferred to Kelowna can be summarized as follows;

a) he does not contest Ms. D.’s ability as a parent so there is no need for her to call a great number ofwitnesses to testify about a matter that is not in issue;

b) it is up to him to meet the case that he is a suitable person to be granted guardianship over J. and to bepermitted to have parenting time with her;

c) he intends to call as witnesses friends who reside in Fort St. John and his parents who reside in Kitimat,all of whom can attest to his parenting abilities;

d) if the file remains in Fort St. John his parents could stay with him during the trial but if it istransferred to Kelowna they would incur accommodation and ancillary costs;

e) his income as an apprentice instrument mechanic was approximately $40,000 in 2013. He earned$68,000 in 2012 and $82,750 in 2011. SUBMISSIONS Ms. D. [13] Counsel for Ms. D. correctly enunciated the test to be applied in such Applications as set out in Rule 19 (4) which requires thecourt to consider the balance of convenience and any special circumstances that exist. Based on that test counsel for Ms. D. contendsthat it favours a transfer of the file to Kelowna particularly from the perspective of the finances of the Parties and the nature and numberof witnesses to be called. Mr. T. [14] Counsel for Mr.

T. emphasized that it is he who has the burden to meet concerning his capacity to be a Guardian and toappropriately parent J. Counsel emphasized that Mr. T.’s witnesses are either from Fort St. John or can be more easily accommodated inFort St. John than in Kelowna. THE LAW The Rules [15] Rule 1 (1) of the Rules provides:

(1) The purpose of these rules is to allow people to obtain just, speedy, inexpensive and simple resolution of matters arisingunder the Family Law Act and certain matters under the Family Maintenance Enforcement Act. [16] Rule 19 (4) of the Rules provides:

(4) Before granting permission to transfer a court file to another registry or to file an application at another registry, the Judgemust consider (

a) the balance of convenience, and (

b) any special circumstances that exist. Case Law [17] Counsel provided the case of S.V.B. v. S.L.A. 2005 BCPC 724 , 2005 BCPC 0724 in which my brother Judge Winghamconducted a thorough review of the case law up to that point.

He also reviewed and noted the differences in the Rules of the BritishColumbia Supreme Court and the British Columbia Provincial Court concerning applications for a transfer of file or change of venue. [18] He then commented at paragraph [26] of S.V.B. [26] I am of the view that these issues should, like all matters involving the care and upbringing of children, be resolved ina timely fashion and should result in the least disruption of the lives of the parties and, particularly, the life of J. I must alsoconsider the expense involved to the parties. DISCUSSION AND DECISION

[ 19 ] J. was born in Kelowna and has lived there her whole life but given her very young age that is not a major factor in determining the Application before the Court. [ 20 ] At the present time the Parties’ incomes are approximately the same after accounting for the payment of child support by Mr. T. to Ms. D. However, Mr. T. has only one person to maintain (himself) from the income he has left after paying child support whereas Ms. D. has herself and J. to provide from the income she receives. It appears from the income histories that Mr. T. can generate a much larger income then can Ms.

D. [ 21 ] The travel between Fort St. John and Kelowna would be an equal burden on either of the Parties so far as their own travel is concerned. However, based on the proposed list of witnesses they would incur considerable expense if they had to transport all of their witnesses to the other community. The only major difference is that two of Mr. T.’s proposed witnesses, his parents, would have to travel in any event and the distance from Kitimat to Kelowna is approximately 200 km more than the distance from Kitimat to Fort St.

John. [ 22 ] Neither party nor their counsel set out what each witness they propose to call would say, how much time it would take them to say it and whether or not the nature of their evidence would or would not be conducive to being heard by video. [ 23 ] Neither counsel addressed the likely time to trial or the trials length but if all the proposed witnesses were called it could easily be a three to five day trial. [ 24 ] Given that the Court’s time to trial statistics are publicly available it is easy to confirm that a trial of two days or more are experiencing a general delay (before accounting for counsels’ schedules) of five to seven months in Fort St.

John and two to four months in Kelowna. That is an important consideration in determining this matter because J. (and the Parties) are entitled to as speedy as resolution of all the issues outstanding as the Court is capable of providing. [ 25 ] Taking into account the test set out in Rule 19 (4), the geographic realities involved, the financial situation of the parties which in turn affects their ability to travel and have their witnesses travel, the possibility of utilizing video for the evidence of some witnesses and the general time to trial available in Fort St.

John and Kelowna, I conclude that the Application of Ms. D. must be granted. [ 26 ] I would also note that once the initial matters at issue have been resolved by trial or otherwise it is most likely that J. will continue to reside with Ms. D. and Ms. D. will continue to reside in Kelowna for the foreseeable future. Any further future litigation would more likely concern J.'s upbringing in Kelowna thus making it the more convenient and logical location for such matters to be heard. ORDER [ 27 ] I order that court file number 21852 from the Fort St.

John Registry be transferred to the Kelowna Registry of the Court for all purposes. [ 28 ] The Family Case Conference presently scheduled for September 10, 2014 in Fort St. John will be maintained until such time as counsel are able to ascertain whether or not a further Family Case Conference can be scheduled more quickly in Kelowna and whether or not the trial of this matter can be scheduled in Kelowna sooner than September 10, 2014. ___________________________ M. J. Brecknell Regional Administrative Judge Northern Region Provincial Court of BC