Kalafchi v. Yao, 2015 BCSC 1152

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Kalafchi v. Yao, 2015 BCSC 1152 Date: 20150703 Docket: E151240 Registry: Vancouver Between: Mehrdad Kalafchi Claimant (Respondent) And Rong Yao also known as Rong Michelle Yao and Xionghu Li Respondents (Appellant) Before: The Honourable Madam Justice Bruce On appeal from: An order of the Supreme Court of British Columbia, dated May 14, 2015 ( Kalafchi v. Yao , Vancouver No. E151240) Reasons for Judgment Counsel for the Claimant (Respondent): Emmanuel A. Witzman Counsel for the Respondent (Appellant), Rong Yao also known as Rong Michelle Yao: Todd R.

Bell Place and Date of Trial/Hearing: Vancouver, B.C. June 25, 2015 Place and Date of Judgment: Vancouver, B.C. July 3, 2015 INTRODUCTION [ 1 ] This is the respondent, Rong Yao’s appeal of an order made by a master on May 14, 2015, granting the claimant contact with the biological child of the respondent pursuant to s. 59 of the Family Law Act , S.B.C. 2011, c. 25 [ FLA ]. [ 2 ] The claimant commenced an action under the FLA claiming guardianship rights in regard to the child and a division of family assets.

Prior to a Judicial Case Conference (“JCC”) and before the respondent had an opportunity to file a response to the claimant’s action under the FLA , the claimant obtained short leave to apply for an interim order regarding contact with the child pending a determination of the issue at trial. [ 3 ] Although named as a respondent in the action, the claimant did not serve the biological father of the child with notice of his interim application for contact with the child under s. 59 of the FLA .

The master was aware that the biological father had not been given notice of the claimant’s application for interim relief and that he had not been served with notice of the claim under the FLA . The child’s biological father currently resides in China and the claimant subsequently obtained an order for substitutional service in respect of the biological father to serve him with the notice of claim and the master’s interim order. [ 4 ] As the master noted in his judgment, this is an unusual case.

The claimant maintains that he lived with the respondent and the child in a marriage-like relationship from 2011 to April 2015 and essentially played the role of stepfather to the child. The child is now six years old and the claimant alleged that he had been intimately involved in the child’s life since his birth. [ 5 ] The respondent denied that she and the claimant had ever lived together in a marriage-like relationship. She alleged that they dated and maintained separate households. The respondent maintained that there was no close relationship between the claimant and the child.

She also alleged that the claimant was using the application for contact as a means of precluding her from returning to China where her ex-husband and her older son reside. [ 6 ] The grounds of appeal include the following: 1. The master failed to refer to and apply the relevant factors under s. 59 of the FLA ;

2. The master failed to identify the subsections of s. 37 of the FLA that formed the basis for his judgment that contact with theclaimant was in the best interests of the child. 3. The master failed to consider the potential harm to the child if at trial the court ultimately concluded there should be no contactwith the claimant. [7] Although not contained in the respondent’s notice of appeal, the respondent also argues that the application should not havebeen heard by the master because the biological father had not been served with notice of the application.

REASONS FOR THE MASTER’S ORDER [8] The master’s reasons for judgment can be summarized by reference to the following passages: [7] Under the Family Law Act, the best interests of the child is no longer just a paramount consideration, it is the only consideration.This case has been brought on at an early time with the parties having to prepare the materials in such haste, so I am applying acautionary principle, I think, when I conclude that, on the balance, [the child’s] best interests lie in favour of granting Mr. Kalafchi therelief he is seeking.

I think it more likely than not that he has fulfilled, if not a full conventional step-parent relationship, something verymuch like it. … [9] … but I do think that Mr. Kalafchi has had a more significant role, and I say that from the parenting perspective, in [the child’s]life than Ms. Yao is prepared to acknowledge. [10] The photographic evidence, the documentary evidence of Mr. Kalafchi and Ms. Yao as co-tenants on the West Broadwayresidence, the address on the traffic violation, are corroboration of his perspective. She says it is simply not so.

He is only on the lease askind of a guarantor. … it just seems more likely than not that he is telling me the facts as they are. … [12] I am persuaded that the relationship did exist. I am persuaded that it is in [the child’s] best interest that Mr. Kalafchi be given thecontact time that he is requesting, which is from 12:00 p.m. to 6:00 p.m. on Sundays. That order will go. STANDARD OF REVIEW [9] The parties disagree about the standard of review.

The respondent argues that the court should conduct a rehearing of thematter given the significant impact of the order on the status quo and the mobility issues to be decided at the trial many months fromnow. In support of this proposition, the respondent cites: Abermin Corp. v. Granges Explor. Ltd. (1990), (BC SC), 45B.C.L.R. (2d) 188 (S.C.) [Abermin]; Ralph’s Auto Supply (B.C.) Ltd. v. Ken Ransford Holding Ltd., 2011 BCSC 999, leave to appealref’d 2011 BCCA 390; and Adroit Resources Inc. v.

Tres-or Resources Ltd., 2008 BCSC 623 [Adroit Resources]. [10] The claimant argues that the standard of clearly wrong must be applied because there are no extraordinary circumstances todisplace the usual rule. In support of this proposition, the claimant cites: Sutton v. Paterson, 2012 BCSC 594; M.S. v. J.S.S., 2002 BCSC1367; and Lin v. Wang, 2014 BCSC 1790. [11] The leading authority regarding the standard of review of a master’s order is Abermin.

The oft-quoted passage at 193 ofAbermin sets out the guiding principles as to when the appeal should be a rehearing and when the standard of clearly wrong applies: The decision in Stoicevski v. Casement represents a realistic compromise between the various policy considerations which bear upon thescope of review which should be permitted under R. 53(6). An appeal from a master's order in a purely interlocutory matter should notbe entertained unless the order was clearly wrong.

However, where the ruling of the master raises questions which are vital to the finalissue in the case, or results in one of those final orders which a master is permitted to make, a rehearing is the appropriate form of appeal. [12] An explanation for Abermin’s underlying rationale is found in Adroit Resources at para. 64: [64] The rationale underlying Abermin is that where a master's decision may significantly affect the substantive outcome of the case itshould be subject to a re-hearing.

Where it is "purely interlocutory" it should be reviewable on a much more deferential basis, with thetest being whether it is "clearly wrong". I think that whether a matter is "purely interlocutory" cannot always be determined on acategorical basis. For example, some decisions about disclosure of documents may simply limit the scope of the evidence available,while others may restrict a party's ability to raise an issue at trial, affecting the substantive outcome. I do not think that, categorically,issues involving production of documents are either purely interlocutory or not.

It will depend upon the circumstances of the case. [13] In my view, the master’s order has the potential to significantly influence the results of the trial of the parties’ dispute, whichhas only been provisionally set for February 2016 many months from now. The respondent seeks to relocate with the child to China.Thus a key factor will be the status quo regarding the relationship between the respondent and the child. Having ordered contact of sixhours each week, the master may have created a new status quo in this relationship by the time of trial.

If the respondent is not permittedto leave Canada as a result of the relationship between her child and the claimant, she may lose contact with her older son who nowresides in China with his father. As one can easily see, the potential consequences of the master’s order could be significant and farreaching. [14] Accordingly, applying the Abermin principles, I find there must be a rehearing of the issues in dispute in the claimant’s

application. DECISION [15] The nature of the relationship between the child and the claimant is seriously in dispute. The claimant deposes he became astepfather to the child and has been an integral part of the child’s life since he was born. The respondent deposes that the parties had aromantic relationship but they never cohabited and the claimant only had intermittent contact with the child. [16] I have reviewed the affidavits filed by the parties in support of their respective positions.

In my view, the evidence presented bythe parties presents no clear preponderance in favour of either party’s position regarding the relationship between the child and theclaimant. However, the evidence before me raises considerable doubt about the claimant’s claim that he cohabited with the respondent. [17] Although the claimant presented some superficial evidence of cohabitation with the respondent that dates back to 2013, he hasfailed to demonstrate any of the usual indicia of a common residence.

For example, the claimant failed to attach evidence of his driver’slicence, passport, credit card statements, bank statements, income tax returns or other identification that could prove his address. Nor didthe claimant attach any mail addressed to him at the respondent’s address apart from a single violation ticket from February 2014. Whilethe claimant deposed that he resided with the respondent as a co-tenant in an apartment on West Broadway and attached the leaseagreement as corroboration, it is apparent that the respondent paid all of the rent and the utilities without any contribution from him.

Theclaimant deposed that he paid for other household items but never attached receipts or photographs of the furniture he allegedlypurchased. There were no credit card statements verifying any such expenditures. Moreover, in the many text messages and othercommunications attached to the respondent’s affidavit, as well as in the demand letter sent to the respondent by the claimant’s counsel,there is no request for the return of any personal items and furniture from the home the claimant says he lived in with the respondent.

Allof these circumstances make his assertion that the parties lived in a marriage-like relationship very doubtful. [18] On the other hand, it is not necessary for the parties to have lived together for the claimant to have established a significantrelationship with the child. The respondent admits that the child has known the claimant since he was born and the claimant was presentfor his birth.

Although she asserts that the claimant has not co-parented the child, the respondent admits that he has on occasion pickedthe child up from school, accompanied her to doctor’s appointments, cooked for the child, visited and played with the child, andaccompanied them on a vacation to Mexico. [19] Although it is doubtful that the parties ever resided together in a marriage-like relationship so as to render it more probable thannot that the claimant effectively became the child’s step-parent, on balance I find that prior to the parties’ breakup, there was arelationship between the child and the claimant that had existed for some considerable period of time. [20] What, then, are the rights of a non-guardian claiming contact with a child?

Under s. 59 of the FLA, the court has the discretionto make an order regarding contact with a child. This provision provides as follows: 59

(1) On application, a court may make an order respecting contact with a child, including describing the terms and form of contact.

(2) A court may grant contact to any person who is not a guardian, including, without limiting the meaning of "person" in any otherprovision of this Act or a regulation made under it, to a parent or grandparent.

(3) The court may make an order to require the parties to transfer the child under the supervision of, or require contact with the child tobe supervised by, another person named in the order if the court is satisfied that supervision is in the best interests of the child.

(4) An access order referred to in

section 54.2 (2.1) or (3) of the Child, Family and Community Service Act is deemed, for the purposesof this Act, to be an order made under subsection (1) of this

section for contact with a child. [21]

Section 59 of the FLA is a new provision replacing s. 35 of the Family Relations Act, R.S.B.C. 1996, c. 128 [FRA], whichgranted the court the discretion to order access to a child to a non-parent or a non-relative. There were few reported decisions under theFRA regarding access rights of non-parents and non-relatives. However, the court generally applied the principles laid down by BrennerJ. (as he then was) in Chapman v. Chapman, (BC SC), [1993] B.C.J. No. 316 at para. 24 (S.C.), which are as follows: 1. The onus is on the applicant to demonstrate that the proposed access is in the child's best interests. 2.

The custodial parent has a significant role. The courts should be reluctant to interfere with a custodial parent's decision and shoulddo so only if satisfied that it is in the child's best interests. 3. It is not in the best interests of a child to be placed into circumstances of real conflict between the custodial parent and a non-parent.

While the court must be vigilant to prevent custodial parents from alleging imagined or hypothetical conflicts as a basis fordenying access to non-parents, in cases of real conflict and hostility, the child's best interests will rarely, if ever, be well served bygranting access. [22] It is apparent that the best interests of the child is the governing consideration even when ordering contact under s. 59 of theFLA.

Section 37 of the Act expressly states that, “In making an agreement or order under this Part respecting guardianship, parentingarrangements or contact with a child, the parties and the court must consider the best interests of the child only.” (emphasis added). As aconsequence, deferring to the custodial parent’s views may not be consistent with s. 37 of the FLA unless this is found to be in the bestinterests of the child. [23] Although addressing guardianship rights, the same conclusion was reached in M.S. v. G.S., 2013 BCSC 1744, where Jenkins J.held at para. 84: [84] I have in mind several decisions of our courts, including Chapman v. Chapman, (BC SC), [1993] B.C.J. No.

316 (S.C.), D.W.M. v. J.S.M. et al, 2003 BCSC 1229 , and J.B.E. v. F.S.L., 2004 BCSC 1511 . Each of these cases stand for the proposition that all things being equal, children belong with their parent, as opposed to others seeking guardianship (formerly custody). This proposition likely no longer applies as it does not accord with the fundamental concept of the FLA that the best interests of the children are the only consideration. Preferring a parent is presumably a consideration of the parent’s interests.

Therefore, the authorities referred to above, and others like them, would not result in a decision in full accord with the best interests of the children as conceived by the FLA . [ 24 ] While deferring to the custodial parent’s decision about contact with a non-guardian may be in conflict with the emphasis in the FLA on the best interests of the child, the other principles established by Chapman remain valid and should be applied to applications under s. 59 of the Act . [ 25 ] Applying these principles to the case at hand, and having in mind the factors identified in s. 37(2) of the FLA to determine the best interests of the child, I find that it is not in the best interests of the child that the claimant be granted a right to have contact with the child.

In my view, pending trial the claimant’s contact should be at the discretion of the respondent. [ 26 ] The claimant bears the onus of establishing that contact with him is in the best interests of the child. I am not satisfied that the claimant had established a parent-type relationship with the child during his relationship with the respondent. It does not appear that he spent any substantial amount of time alone with the child, which would have been the case had he resided with the respondent. Any care that he administered was done in the presence of the respondent.

The claimant’s connection with the child was solely due to his romantic relationship with the child’s mother and does not appear to have developed independently of that relationship. To now impose a contact order that would require the child to regularly spend time alone with the claimant changes the status quo considerably.

To impose this significant change on such a very young child could be harmful to his emotional wellbeing. [ 27 ] Further, I am not satisfied that the claimant’s motives in seeking contact with the child truly stem from his desire to maintain a relationship with the child as opposed to his mother. It is quite apparent from the numerous text messages the claimant sent to the respondent after the separation and up until the commencement of this action that he desperately wanted their romance to continue.

He was not content with the respondent’s desire to end the relationship and continually implored her to reconsider. In his many communications with the respondent, the claimant rarely mentions the child or his desire to spend time with the child. [ 28 ] Moreover, the claimant’s desire has led him to act irrationally. In this regard, the claimant did not deny that he staged a break in to the respondent’s home while she was away in China, sending her fake photographs of the damage in order to convince her to talk to him.

In my view, it will be very difficult for the claimant to put aside these strong feelings during any contact with the child. It is likely that the claimant will attempt to rekindle his romance with the respondent by manipulating the child’s feelings towards him. This would clearly be contrary to the emotional wellbeing of the child. [ 29 ] It is also a concern that the parties are now embroiled in a monetary dispute. The claimant alleged in several text messages that the respondent owed him over $200,000 for construction costs associated with the respondent’s home.

He has already commenced a separate action to recover this debt in the name of his company, Red Avocado Sales Inc. The claimant is also claiming a share in the family assets in his action under the FLA . As the conflict between the parties increases with the ongoing litigation, the child will inevitably find himself in the middle of a hostile situation. Again, this is clearly not in the best interests of such a young child. [ 30 ] The order for contact made by the master was six hours each week on a Sunday.

In the long term, the parties would be required to cooperate in regard to the child’s activities or other commitments that might conflict with this contact time. The order did not build in any flexibility. Given the multiple points of conflict between the parties it will be very difficult for them to trust each other enough to cooperate. Even communication between the parties is difficult due to the claimant’s continuing desire to repair the romantic relationship.

Their inability to communicate will cause further tension that may well adversely affect the child’s emotional health. [ 31 ] For these reasons, I find the master’s order cannot stand and must be set aside. [ 32 ] I am also satisfied that the failure to give notice of the application to the biological father of the child should have been fatal to the application. There was no reason conveyed to the master for the failure to notify the child’s father prior to the hearing. While the father resides in China, he continues to have contact with the child.

The claimant did not present evidence to establish that it would be impractical to serve the child’s father with notice of his application. Nor did he provide any reasons for a without notice application apart from the matter being “an emergency”. While emergency situations can justify short leave applications, something more is required for a without notice application.

The child’s father should not be faced with the challenge of seeking to set aside an order that is already in place particularly when the order does not address the father’s right to do so and on what terms. [ 33 ] Lastly, I am satisfied that this application should not have been heard prior to the parties’ JCC. Discussion of the issues surrounding contact with the child at a JCC meeting would clearly have focused the parties’ attention on the issues in dispute and permitted them the time to marshal a more complete evidentiary record to support their respective positions.

An informal airing of views may also have resulted in a consensual agreement regarding contact with the child. [ 34 ] For all these reasons, I grant the appeal and set aside the master’s order of May 14, 2015. [ 35 ] The respondent has been successful in this appeal and thus should be awarded costs in any event of the cause. “Bruce J.”