N.A. v. A.S., 2019 BCPC 115

Citation: N.A. v. A.S. 2019 BCPC 115 Date: 20190417 File No: 7154 Registry: New Westminster IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: N.A. APPLICANT AND: A.S. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. SUDEYKO Counsel for the Applicant: L. Pippard Counsel for the Respondent: N. Bulatovic Place of Hearing: New Westminster , B.C.

Dates of Hearing: November 6, 2018 and April 9, 2019 Date of Judgment: April 17, 2019 INTRODUCTION [ 1 ] This is an application by a party, pursuant to Rule 20(4) of the Provincial Court (Family) Rules (“PCFR”) to set aside or terminate a dismissal order that was made on November 3, 2017, when that party failed to attend at the time of a scheduled hearing. It is opposed on the basis that this court is without jurisdiction to decide the issue, or alternatively, that there is an insufficient basis for the termination of the order.

The primary evidence in this application came in through affidavits, but also required reviewing the record of the court appearances. BACKGROUND [ 2 ] N.A. (“the Mom”), who had primary care of a daughter, applied on November 4, 2016 to retroactively increase a child support order on A.S. (“the Dad”) dated June 14, 2013 (“the Application”).

At that time, there was a child support order in favour of the Mom, but the Dad had suffered two motor vehicle accidents (2011 and 2013) affecting his ability to work and was awaiting a personal injury settlement. [ 3 ] After some delay in setting the hearing date, including the mom’s request to get legal counsel, the Application was then scheduled to be heard at 9:30 a.m. on November 3, 2017. By that time, the Dad had received a substantial settlement.

He opposed the Application. [ 4 ] The Dad said that the day before that scheduled hearing, the Mom told him in a telephone conversation that she wasn’t going to appear and wanted to “cancel” the Application. The Dad says he told her she should appear to tell the Judge that. The Mom’s then boyfriend also says that he heard her say the same thing to the Dad on the phone.

That former boyfriend also says that the Mom was aware of the 9:30 a.m. start to court, although he confirms he and the Mom initially went to a coffee shop across the street from the court. [ 5 ] The Mom denies the call with the Dad had occurred, but alleges she was told by the Dad, during a phone call on the morning of November 3, 2017, that the hearing was scheduled for 10:00 a.m. She says that she planned to proceed, not to “cancel” the Application. [ 6 ] Mom didn’t appear when the matter had been scheduled at 9:30 a.m., and was still not there at 10:00 a.m.

Just after 10:00 a.m., the case was called and counsel for Dad, who accompanied the Dad into the court room, told the Judge of the alleged communication between Mom and Dad the night before---that the Mom did not plan to attend and that she wished to “cancel” the Application. Counsel for the Dad applied for a dismissal of the Application. [ 7 ] That Dismissal Order was immediately granted, with the Judge citing the information from Dad’s counsel that the Mom did not plan to attend, rather than perhaps waiting some time to see if she attends.

That appearance and the Dismissal Order was reflected in the court record and audio recording. It is clear that was not a dismissal on the merits of the case. [ 8 ] A few minutes after 10:00 a.m., the Mom arrived. She did not have legal counsel. She was unhappy when she was told by the Dad and his counsel that the matter had been spoken to in her absence. She then proceeded into the courtroom and spoke directly to the Judge and he spoke directly to her (“the exchange”). The Dad, Counsel for the Dad and the Mom’s then boyfriend were also present for the exchange.

However, the exchange was not recorded, nor are there any clerk’s notes. [ 9 ] I pause here to make the following observations. Normally, all proceedings in a courtroom are audio recorded, together with clerk’s notes. When the court stands down, that audio recording is stopped and no clerk’s notes are typically made. Occasionally, after standing down and before the Judge has left the courtroom, or immediately after returning to the court following a break, a brief discussion may take place between the Judge and the parties present in the courtroom.

That brief discussion will usually be insignificant, and not include formal submissions, and certainly not the calling of evidence. That informal discussion will usually not be audio recorded, nor will notes be taken by the clerk. [ 10 ] In this case, I find that it is likely that the Mom entered the courtroom after the recording was stopped for a break, or immediately following a break, and spoke briefly to the Judge about what had occurred in her absence. The clerk was not then recording.

Nor was there a substantive matter to put on the court record. [ 11 ] In any event, we do not have that record (which may otherwise occur from time to time), but we do have the recollections of both sides. The Mom says that the Judge simply told her that her case had been dismissed. The Mom’s ex-boyfriend confirms that. The Dad’s recollection was that the Judge said that the matter would not be re-opened because it was already dismissed.

Counsel for the Dad had limited recollection of what the Mom said to the Judge or what the Judge said to her. [ 12 ] Therefore, I am satisfied from all of the evidence that during the brief exchange, the Judge simply informed the Mom that the Application had already been dismissed, which was as a result of her failure to attend at the time of the hearing. [ 13 ] When the Mom came out of the court room and was angry, she was told by the Dad that she can appeal the Dismissal Order.

The former boyfriend says she was only angry because she wanted to inform the judge herself of the intention to “cancel” the Application. Jurisdictional issue [ 14 ] Counsel for Dad argues that this court has no jurisdiction to set aside the Dismissal Order---that when Mom proceeded into the courtroom, the Judge, in effect, again dismissed the case. She says the Mom’s only remedy would be to appeal the Judge’s decision to Supreme Court.

[ 15 ] However, I am satisfied that the Judge did not make (or remake) the Dismissal Order after hearing from the Mom. His comments simply confirmed the Dismissal Order already made as a result of her non-appearance. It clearly was not, once again, a decision on the merits of the case. [ 16 ] In some circumstances, such as when a party perhaps repeatedly does not appear, a Judge might indeed specifically state that he or she is making a decision “as if on the merits”.

There is no evidence that was the case here. [ 17 ] As a result, I reject the argument of Dad that this court is without jurisdiction to consider the application to terminate or set aside the Dismissal Order. LAW Rule 20(4) Provincial Court Family Rules [ 18 ] On October 11, 2018, Mom brought this application, pursuant to Rule 20(4) of the PCFR, which allows the court to “change, suspend, or terminate an order” made in a person’s absence. Alternatively, the Mom is seeking to bring a fresh application. [ 19 ] Rule 20(4) of the PCFR reads as follows:

(4) A judge may change, suspend or terminate an order made in the absence of a person, or made when the person failed to file a reply, if (

a) there is good reason for changing, suspending or terminating the order, and (

b) that person applies by notice of motion to a judge under rule 12 within a reasonable time and attaches to the application an affidavit stating I. the reason the person did not file a reply or attend before the court when required, II. the reason for any delay if there has been delay in filing the application, and III. the facts that support the application.

Mom’s application [ 20 ] The mom says, by way of affidavit and submission, that there is a clear claim for retroactive child support based on the Dad’s receipt of past wage loss in the personal injury settlement. [ 21 ] She further states that she was misinformed about the time of the scheduled hearing, making her late and learning of the Dismissal Order at that time.

She says it was her intention to proceed. [ 22 ] Finally, she says her delay in bringing this application to set aside the Dismissal Order was because she remained unrepresented and in dire financial circumstances, following which she later obtained counsel, who required time to determine if there would be any benefit to proceeding.

Dad’s response [ 23 ] In response to that application, the Dad submits through affidavits, including the former boyfriend, and through argument, that the Mom had no intention to proceed with her Application on November 3, 2017, but rather wished to “cancel” it. [ 24 ] They also submit that she had notice of the hearing time and was not advised otherwise by the Dad, and that she was only upset because she didn’t want the Dad to tell the Judge of her intentions and was concerned about something being said about her that she could not refute. [ 25 ] Finally, the Dad says there has been an insufficient basis given for the excessive delay in bringing forward the application to terminate the Dismissal Order.

The Dad says that the Mom is simply attempting to benefit from the settlement of the Dad’s personal injury case. ANALYSIS Good Reason to Change the Order [ 26 ] Child support is a child’s right, not only that of the custodial parent. [ 27 ] This application is not about the sudden availability of funds by the Dad because of the personal injury settlement. It is about what the Dad was supposed to be receiving in the way of earnings, which was interrupted by the injuries, but was subsequently compensated for in the settlement as past wage loss.

Therefore, looking at the merits of the application for retroactive child support, there may indeed be a claim based on that past wage loss recovery. [ 28 ] In my view that provides a “good reason for changing, suspending or terminating” the Dismissal Order made in the Mom’s absence and deciding the case on its merits. [ 29 ] But that does not end the matter. The court must also consider whether the application was made within a reasonable time, as well as the reason for non-attendance, both of which are considerations for the assessment of whether there is “good reason” to terminate the order.

Application within a Reasonable Time [ 30 ] This application came almost one year after the original Application and Dismissal Order. That is a significant delay. -reason for non-attendance [ 31 ] Although not directly related to the delay in bringing the application, the reason for non-attendance is also a requirement in the affidavit and consideration under Rule 20(4) of the PCFR . [ 32 ] This is not a case of non-attendance, but a case of late attendance. [ 33 ] I certainly conclude that the Mom was provided notice of the 9:30 a.m. starting time when the matter was originally set.

I also am not satisfied, based on the inconsistencies in her affidavit, that she was misinformed by the Dad on the morning of November 3, 2017, that the court proceedings were to begin at 10:00 a.m. However, I am also not satisfied that she willingly ignored her awareness of the 9:30 a.m. scheduled hearing time.

On this issue, and others, I was not persuaded by the affidavit of the former boyfriend, whose bias was apparent in relation to an unhappy break up with the Mom. [ 34 ] I am satisfied that the Mom came to incorrectly believe that the hearing was to begin at 10:00 a.m., based upon both her and her former boyfriend’s recollection that they sat in a coffee shop across the street before proceeding into the courthouse, albeit slightly later than 10:00 a.m. [ 35 ] As for her intention upon attending the court, that is, whether she wished to simply “cancel” (I take to mean withdraw), which would then require a formal re-Application, or to actually proceed, that is not required to be addressed in the affidavit supporting the application.

However, I am satisfied that she likely had the intention to proceed on November 3, 2017, even if she didn’t have that intention on November 2, 2017. It does not seem likely she would travel in and attend at court just to tell the Judge of her wish to “cancel” the Application, or that she would then be upset that the Application was dismissed. -reason for delay [ 36 ] Turning to the delay in bringing forward this application, I am satisfied that the Mom was without counsel and was at least initially advised that she needed to appeal the Dismissal Order. She also faced significant financial challenges.

This helps to explain her delay in obtaining legal advice, and failing to proceed on her own with an application pursuant to Rule 20(4) of the PCFR , which requires filing an affidavit addressing specific issues. The further delay by Mom’s counsel, based upon the need to determine if there was any benefit to pursuing retroactive child support, was reasonable and pragmatic. CONCLUSION [ 37 ] I am satisfied that there is “good reason” for terminating the Dismissal Order and deciding the case on its merits, and that this application was made within a reasonable time.

Indeed the explanation for the failure to attend and the basis for the delay support that. [ 38 ] I am also mindful of the “Purpose” of the PCFR to obtain “just, speedy, inexpensive and simple resolution” of matters under the Family Law Act. Although the further delay caused by this decision may not address the need for a “speedy” or “inexpensive” resolution, the need to be “just” requires, in my view, a decision on the merits. ORDER [ 39 ] I grant the application to terminate the Dismissal Order and refer the parties to the Judicial Case Manager to re-set the Application. _______________________________ D.

SUDEYKO Provincial Court Judge