S.M. v. M.B., 2023 BCPC 68

Citation: S.M. v. M.B. 2023 BCPC 68 Date: 20230418 File No: 4451 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S. M. APPLICANT AND: M.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Applicant: J.A.C. Stewart Counsel for the Respondent: B.R. Cope Place of Hearing: Colwood , B.C. Date of Hearing: March 13, 2023 Date of Judgment: April 18, 2023

The Issue [ 1 ] Mr. M. and Ms. B. are the parents of E., now age 5. Until April, 2022, Mr. M., Ms. B. and E. all lived in the suburbs of Victoria, British Columbia. On April 18, 2022, I made an order granting Ms. B. leave to relocate with E. to Whitehorse in the Yukon Territory, and giving directions about parenting time and shared parental responsibilities. [ 2 ] On February 7, 2023, Mr. M. filed an application in this court, seeking to set aside the order which I made on April 18, 2022, on the ground that Ms. B. has failed to comply with it by failing to consult Mr.

M. about the exercise of parental responsibilities and by denying Mr. M. his parenting time. [ 3 ] Ms. B. raises a preliminary issue in response to Mr. M.’s application. She submits that this court no longer has jurisdiction over the matter because E. now resides in the Yukon and was not physically present in British Columbia when Mr. M.’s application was filed. The Statutes [ 4 ] The Provincial Court of British Columbia has no inherent jurisdiction: Foulds v. Kelly [2011] BCJ No. 1816 ; 2011 BCSC 1298 at paragraph 10 .

On substantive issues, such as arise in this case, I have no jurisdiction unless a statute confers it upon me. The situation is slightly different in respect of procedural issues. In Holland v. British Columbia [2022] BCJ No. 1502 ; 2022 BCSC 2388 , Justice Tammen said at paragraph 15: … judges of the Provincial Court derive all their powers from statute, and do not possess inherent jurisdiction. However, there is no doubt that judges of statutory courts have the power to control their court's processes and to do those things that are necessary for the proper functioning of the court.

That ancillary power is sometimes referred to as the "doctrine of jurisdiction by necessary implication." The issues now before this court are substantive, and not governed by “…the doctrine of jurisdiction by necessary implication”. As a consequence, I have jurisdiction to adjudicate the issues if and only if a statute confers it upon me. [ 5 ]

Part 4 of the Family Law Act SBC 2011, c 25 (“the FLA ”) is entitled “Care of and Time With Children”. Mr. M.’s present application is brought pursuant to sections 40 – 45 of the FLA , which are found in

Part 4. The Order which I made on April 28, 2022 was made under the authority of sections 69 and 70, which are also found in

Part 4. [ 6 ] Section 74(2) is also found in

Part 4. It provides (underlining added): Despite any other provision of this Part , a court may make an order under this Part respecting guardianship, parenting arrangements or contact with a child only if one of the following conditions is met: (

a) the child is habitually resident in British Columbia when the application is filed; (

b) the child is not habitually resident in British Columbia when the application is filed, but the court is satisfied that (

i) the child is physically present in British Columbia when the application is filed, (ii) substantial evidence concerning the best interests of the child is available in British Columbia, (iii) no application for an extraprovincial order is pending before an extraprovincial tribunal in a place where the child is habitually resident, (iv) no extraprovincial order has been recognized by a court in British Columbia, (

v) the child has a real and substantial connection with British Columbia, and (vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in British Columbia; (

c) the child is physically present in British Columbia and the court is satisfied that the child would suffer serious harm if the child were to (

i) remain with, or be returned to, the child's guardian, or (ii) be removed from British Columbia. [ 7 ] Section 72(2) of the FLA provides that, for the purposes of

Part 4, where the parents are living separate and apart, a child is “habitually resident” in the place where she most recently resided with one parent under an order of the court. As at February 7, 2023, when Mr. M. filed his application, E. was living with Ms. B. in Whitehorse under the authority of the order which I made on April 28, 2022. So, on February 7, 2023, E. was “habitually resident” in Whitehorse.

[ 8 ] It is not suggested that E. was physically present in British Columbia on February 7, 2023. [ 9 ] It is not suggested that E. is now physically present in British Columbia. [ 10 ] It follows that none of the conditions set out in section 74(2) has been met. [ 11 ] Mr. M. relies upon

section 3 of the Court Jurisdiction & Proceedings Transfer Act SBC 2003, c 28 (“the CJPTA ”), which, he submits, confers jurisdiction on this court to adjudicate Mr. M.’s application. [ 12 ]

Section 12 of the CJPTA provides: If there is a conflict or inconsistency between this Part and another Act of British Columbia or of Canada that expressly (

a) confers jurisdiction or territorial competence on a court, or (

b) denies jurisdiction or territorial competence to a court, that other Act prevails. [ 13 ] The word “only” in section 74(2) of the FLA expressly denies this court jurisdiction when none of the three conditions set out in section 74(2) pertains. By virtue of

section 12 of the CJPTA , the FLA prevails, and this court is now without jurisdiction in relation to E’s parenting time and parental responsibilities. [ 14 ] The opposite result was reached in C.L.Z. v. C.G.Z. [2018] BCJ No. 6836 ; 2018 BCSC 2172 , on which Mr. M. relies, because, in that case, the child was found to be habitually resident in British Columbia when the application was filed. Balance of Convenience [ 15 ] An appellate court may disagree with the conclusion which I have reached. For that reason, it may be useful for me to offer my view of the issue of balance of convenience, which would arise if

section 3 of the CJPTA is applicable. [ 16 ] If I thought it were open to me to decide the issue of jurisdiction by reference to the balance of convenience, I would have been inclined to the conclusion that British Columbia is the more convenient forum. I say that because each parent is now, and has been for some time, represented by counsel in British Columbia. Proceedings relating to the division of family assets are now pending the Supreme Court of British Columbia.

If issues of parenting time and parental responsibilities are to be decided in the Yukon, each parent may feel obliged to retain and instruct counsel there, which will be more expensive and less convenient for all. [ 17 ] The remaining factors relevant to balance of convenience seem to me to be roughly evenly balanced. The parties and witnesses can, with rare exceptions, attend court remotely. There will be important witnesses from British Columbia, but also from Whitehorse. Disposition [ 18 ] As this court is without jurisdiction to adjudicate Mr.

M’s application, it must be dismissed. _ ____________________________ The Honourable Judge T. Gouge Provincial Court of British Columbia