Cash Stop Loans Inc. v. McLellan Date:, 2015 BCPC 346

Citation: Cash Stop Loans Inc. v. McLellan Date: 20151203 2015 BCPC 0346 File No: 40142 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims Court) BETWEEN: CASH STOP LOANS INC. CLAIMANT AND: DALAN EVERETT McLELLAN DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Appearing for the Claimant: Ms. A. Cacka Place of Hearing: Kamloops , B.C. Date of Hearing: November 9, 2015 Date of Judgment: December 3, 2015 [ 1 ] This is an application by Cash Stop Loans Inc. for access to a family court file that may exist between the Defendant and the mother of his child or children.

In the application, the Claimant said that the Defendant did not appear for a payment hearing when he

was summoned. A warrant for his arrest was issued. It was served upon him when he appeared in family court in August 2014. At thattime, the payment hearing was scheduled for September 23, 2014. Mr. McLellan did not show up on that date either. A furtherimmediate arrest warrant was sought and granted. Since then, the Claimant has been unable to provide any information to assist thesheriffs in locating the Defendant. The warrant has not been executed. [2] The Claimant seeks access to the family court file in order to learn Mr. McLellan’s address to provide it to the sheriffs.

Ms.Cacka was unable to confirm whether she knew in fact that there was a family file. The day he was served at the family hearing was aFriday which would not be a family remand day. He would have been attending a hearing or a trial. This means he could have been awitness, a support, or a party. However, Ms. Cacka is certain that he is no longer with his former partner and suspects the family matteris with respect to his own children. [3] The Provincial Court Family Rules protect the integrity of family court files from unlimited access.

Rule 20(10) provides asfollows: No one is entitled to search a registry file respecting an application under the Family Law Act, a filed agreement or an application underthe Family Maintenance Enforcement Act except: (

a) a party, (

b) a lawyer, whether or not a lawyer of a party, (

c) a person who is named in the application as a Respondent or who is named as a party to the agreement, as the case may be, (

d) a family justice counsellor, (

e) a person authorized by a judge; or (

f) a person authorized in writing by a party or a party’s lawyer. [4] The obvious purpose of Rule 20(10)(

e) is to facilitate others who may have collateral applications relating to the family lawproceedings. The question is whether a “person authorized by a judge” can include a creditor in an entirely unrelated matter. [5] The current iteration of Rule 20(10)(

e) is more liberal than its predecessor, which even prohibited any lawyer other than aparty’s lawyer from examining a file. It may be appropriate to return to the former version. On a criminal matter before me, defencelawyers on a domestic violence assault charge before me were able to access a family file between the complainant on my trial and adifferent spouse in order to gather information for cross examination purposes.

While entirely authorized under the legislation, this was,in my view, an entirely improper purpose. [6] Now I am faced with the prospect that any lawyer may access a family file for the purposes of facilitating judgment creditorson files entirely unrelated to the family proceedings. [7] I find that is not the purpose of the “catch all” exemption found in Rule 20(10)(e). [8] The Provincial Court rule is drawn from Rule 22-8(1) of the Supreme Court Family Rules.

This may have been a matter ofexpediency, although not all of the protective provisions of that rule are contained in the Provincial Court Family Rules. [9] Of guidance is the decision of Aquilini v. Aquilini, 2012 BCSC 919 , 2012 B.C.S.C. 919 where the court finds atparagraphs 11 to 14: [11] I will turn to the Supreme Court Family Rules of British Columbia. [12] The Rules have protective mechanisms in place that effectively amount to sealing orders, albeit with some minimal discretion on thepart of the court.

Rule 22-8(1) provides that unless the court otherwise orders, no person except a lawyer, a party, a person authorized bya party, or a party's lawyer may search a registry file in a family case and have access to the information retained in the registry.However, there is concern in this case with respect to the ability of any lawyer unconnected to the parties to search the file. [13] Rule 22-8(5) provides that exhibits produced at the trial must be sealed in a secure manner and are not accessible by any personother than a party, a person authorized by a party, or a party's lawyer. [14] Rule 5-1(29) requires that anyone who accesses documents in a family file keep them in confidence; and Rule 5-1(30) provides for adiscretionary sealing of financial information where the court considers that public disclosure of any information would be a hardship onthe person disclosing the financial information. [10] In other words, the rules are essentially codifying access to family files which must still be regarded as sacrosanct.

Lawyers andothers must not access these files for unrelated proceedings. While Rule 20(10)(

e) may appear to give a broader discretion to the court toallow others access to the family files, the information contained in those files must remain inviolable except where the access relates tothe proceeding or resolution of the family dispute. In other words, while Rule 20(10)(

e) may grant access to such facilitators ascounsellors, parenting coordinators or report writers, it should not extend to judgment creditors in entirely unrelated matters. [11] While this application relates strictly to access to an address for a judgment debtor, if the court were to grant access to judgmentcreditors for what are ostensibly compelling reasons, where would the access stop? The financial statements that are sworn by parties ina family proceeding are contained in those family court files. Exhibits are contained in those family court files.

Family proceedings arevery personal which results in the protective measures where access is concerned. That protection of the privacy of these proceedings isparamount is reflected in Rule 20(9) which prohibits disclosing any information contained in a record filed under Rule 4, being thefinancial information, except to the extent necessary for the purposes of an application under the Family Law Act. Indeed, the protection

of privacy of the participants is so inviolable that provincial court judgments are published without using the names of parties. This prohibition is codified in s. 3(6) of the Provincial Court Act . [ 12 ] I am indebted to Ephraim Fung, Judicial Intern, for his assistance in tracking the history of this rule. In the end result, I must dismiss the application. ______________________________ S.D. Frame Provincial Court Judge