Ball v. Carpentier Date:, 2014 BCPC 319

Citation: Ball v. Carpentier Date: 20141208 2014 BCPC 0319 File No: C71500 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Civil BETWEEN: NADINE VIOLET BALL CLAIMANT AND: RICHARD ARTHUR CARPENTIER DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Appearing on her own behalf: N. Ball Appearing on his own behalf: Richard A. Carpentier Place of Hearing: Nanaimo , B.C.

Date of Hearing: December 8, 2014 Date of Judgment: December 8, 2014 Introduction [ 1 ] THE COURT (orally): This matter has come on for trial before me. The claimant, Nadine Violet Ball (formerly known as Nadine Violet Carpentier), is seeking judgment in the amount of $20,000 against the defendant, Richard Arthur Carpentier. The claimant and the defendant were formerly husband and wife.

The claim is being brought pursuant to a separation agreement entered into between the parties on 22 September 2009 (hereinafter referred to as the "Separation Agreement"). [ 2 ] The defendant disputes the claim and raises several issues with respect to why the amount that is alleged to be due cannot be paid.

However, this matter having come before the court on two separate occasions at settlement conferences, an issue has arisen, and that is whether or not the Separation Agreement can be enforced in the Provincial Court of British Columbia. [ 3 ] The matter was last before the Honourable Judge Cowling on 28 July 2014. The parties had previously been directed to seek legal advice on that issue at an earlier settlement conference held on 31 March 2014 before the Honourable Judge Saunders. Background [ 4 ] The Separation Agreement contains the following provisions in the recitals.

Under Recital "I": The parties desire and intend that there be a complete, effective and final settlement of the issues of: (

a) their respective rights in and to the assets and property of each other and to any assets and property held by them jointly. [ 5 ] Under heading 4, "Family Assets," there is listed, under s. 4.01(b), a reference to a condominium located in Nanaimo, British Columbia, referred to in the Separation Agreement as the "Nanaimo Condo." The Separation Agreement indicates that the Nanaimo Condo had a 2009 assessed value of $130,100. [ 6 ] Under heading 6 of the Separation Agreement, entitled "Nanaimo Condo," the following provisions appear: 6.01 The Husband and Wife agree that upon execution of this Agreement the Husband and their daughter, Danielle, agree to pay to the Wife the sum of $20,000.00 and the Wife shall execute a Form A Freehold Transfer transferring her interest in the Nanaimo Condo jointly to the Husband and their daughter, Danielle. 6.02 In order to meet the conditions of clause 7.1 herein, the Husband agrees to re-finance the First National Mortgage and the Husband further agrees to indemnify and save the Wife harmless from any claim whatsoever in respect of the First National Mortgage registered against the Nanaimo Condo. [ 7 ] It is common ground that the reference to clause 7.1 in paragraph 6.02 of the Separation Agreement is incorrect and that it is actually a reference to paragraph 6.01 under that same part of the Separation Agreement. [ 8 ] According to Recital F(c), the mortgage with First National Financial Bank (Toronto) was registered against the Nanaimo Condo to secure an amount of approximately $94,969.01 as at February 22, 2009. [ 9 ] The defendant, in his Reply, indicates that he was unable to obtain refinancing or to qualify for refinancing due to his disability income and his credit score.

He states in his Reply that he has tried on two occasions in 2009 and again in 2012 to obtain refinancing.

The Reply further goes on to indicate that the defendant is unable to pay the claimant $20,000 or to have her name removed from title as per the Separation Agreement without qualifying for refinancing. [ 10 ] There is also a suggestion made in the Reply that the value of the condo has been impacted negatively by existing market conditions such that the amount owed under the First National Financial Bank (Toronto) mortgage, (the “First Mortgage”) once a sale of the property can be achieved, will not provide or permit the amount of $20,000 to be paid to the claimant by the defendant. [ 11 ] The list price on the Nanaimo Condo has been reduced significantly, and the last list price disclosed by the Reply was on March 27, 2013, at which time the list price was reduced to $114,900.

As at January of 2014, the Reply states that the current First Mortgage on the Nanaimo Condo is $90,893.58. [ 12 ] The Reply further indicates that the sale of the Nanaimo Condo in the current low market and at the price it is listed will result in there being no equity to be gained or realized after the First Mortgage and other debts have been paid.

Therefore, the Reply concludes with the submission that a mutual mistake has been made in regards to the understanding that the defendant would be able to obtain refinancing or that there would be an absolute opportunity to recoup the investment of $40,000 originally placed in the Nanaimo Condo from the sale of that unit. [ 13 ] In stating that this court does not have any jurisdiction to deal with the subject matter of this claim, the defendant places some reliance on paragraph 1.07 of the Separation Agreement which provides as follows: This Agreement is to be interpreted in accordance with the Laws of the Province of British Columbia.

The Supreme Court of British Columbia shall have exclusive jurisdiction over this Agreement. Issue

[ 14 ] The issue that I must determine before proceeding with the trial of this matter is whether or not the Provincial Court of British Columbia does have jurisdiction in order to deal with the subject matter of this claim and, in particular, to enforce provisions of the Separation Agreement. Analysis and Conclusions [ 15 ] Paragraph 1.07 of the Separation Agreement makes it clear that the parties have agreed that the Supreme Court of British Columbia shall have exclusive jurisdiction over the Separation Agreement. I take that to mean both by way of

interpretation of the Separation Agreement and also the enforcement of any provisions contained within the Separation Agreement. In fact, what likely is an issue that the Supreme Court may be required to decide is whether or not the operative provision of

Part 6 of the Separation Agreement dealing with the Nanaimo Condo should be varied in some fashion in order to reflect the present situation that exist with respect to that condo, its value, and the inability to obtain refinancing of the first mortgage. [ 16 ] I conclude that the provisions of s. 1.07 are determinative, and that the Supreme Court does have that exclusive jurisdiction. However, if I am wrong, I do note that only the Supreme Court of British Columbia has jurisdiction to make orders under

Part 5 of the Family Law Act .

Part 5 of the Family Law Act deals with property division. Property division in this situation would include the Nanaimo Condo.

Part 5 of the Family Law Act includes provision under s. 93 that if spouses have an agreement respecting the division of family property and family debt, the Supreme Court may set aside or replace an agreement with an order based on the criteria set out in s. 93 of the Act. If all or part of the agreement is set aside, the Supreme Court has jurisdiction to make an order dividing the family property and the family debt that was subject of the agreement (see s. 94). [ 17 ] Therefore, based on my conclusion that the agreement is within the exclusive jurisdiction of the Supreme Court by virtue of both the provisions contained in the agreement and the provisions of

Part 5 of the Family Law Act , I am left with no alternative other than to dismiss this claim. However, before doing so, I must consider whether or not this matter may be transferred to the Supreme Court of British Columbia. [ 18 ] Rule 7.1 of the Small Claims Rules provides as follows: Transfer of claim to Supreme Court

(1) If satisfied that the monetary outcome of a claim (not including interest and expenses) may exceed $25 000, a judge must transfer the claim to the Supreme Court (

a) on application at any time, or (

b) on the judge's own motion at the settlement conference or trial. [ 19 ] In Homelife Glenayre Realty Co. Ltd. v. Fraser Valley Real Estate Board , [2013] B.C.J. No. 1692, 2013 BCPC 198 , the Honourable Judge Skilnick dealt with this particular issue. At paragraph 24, Judge Skilnick states, in part, as follows: [24] Fairness dictates that the claim be decided on its merits in the proper forum.

Unfortunately, the rule does not contemplate the transfer of a matter to the Supreme Court for reasons of jurisdiction, but only for reasons of the dollar value of the claim. (This is something that may be worthy of consideration in any future revisions to the Small Claims Rules .) The Claimant's application must be decided on the issue of whether or not the Claimant, if successful, could receive a judgement in excess of $25,000. [ 20 ] In this case, the only amount that is being claimed is as set out in the Separation Agreement, that is, the $20,000 together with prejudgment interest.

Therefore, this matter falls outside of Rule 7.1(1), and I do not have the jurisdiction to transfer the claim to the Supreme Court. Order [ 21 ] In the end result, the claimant's claim for $20,000 is being dismissed on the grounds that this court lacks the jurisdiction to hear the matter based on the provisions contained within the Separation Agreement which places exclusive jurisdiction with the Supreme Court and, in the alternative, the fact that the Supreme Court of British Columbia has exclusive jurisdiction under

Part 5 of the Family Law Act . [ 22 ] It should be clearly stated that this is not a ruling on the merits of the claim, and nothing in this order should be interpreted as any sort of prohibition against the claimant seeking her remedy in the Supreme Court. If there is a limitation issue that may affect that ability, I am making no finding on any limitation issue. [ 23 ] For the foregoing reasons, the claimant's claim is dismissed pursuant to Rule 16(6)(o). [ 24 ] The defendant is entitled to his costs under Rule 20(2)(a), that being for any fees paid by the defendant for filing any documents and any service fees.

The defendant is not entitled to any recovery under Rule 20(5). [ 25 ] That concludes my reasons for judgment. (REASONS CONCLUDED)