PA v. BA Date:, 2013 BCPC 83

Citation: PA v. BA Date: 20130122 2013 BCPC 0083 File No: F15742 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: PA APPLICANT AND: BA RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DYER Counsel for the Applicant: A. Popescu (agent for K. Gonzales)

Counsel for the Respondent: R. Sandhu Place of Hearing: Port Coquitlam , B.C. Date of Hearing: January 22, 2013 Date of Judgment: January 22, 2013 [ 1 ] THE COURT: The respondent, BA, makes an application today before me, as I understand it, pursuant to s. 8(1)(

b) of the Family Relations Act which states, as follows: If, in a proceeding under this Act, it appears to the court that other matters under this Act or under any other Act or law of British Columbia or of Canada should be determined first or simultaneously with the matters at issue in the proceeding, the court may, on its own motion, or on application of a party to the proceeding, (

b) direct that the application stand over until other proceedings are brought or determined [ 2 ] If the application is not brought under that

section of the Family Relations Act , it is brought on the basis that proceedings are now ongoing in the Supreme Court of British Columbia wherein the same relief that is being sought in this Provincial Court are likewise being sought, and the matter should be allowed to proceed there so as to avoid, among other things, the multiplicity of proceedings. [ 3 ] By way of background, the respondent father, PA, commenced, on November 23rd, 2012, an application in this court seeking the following relief: shared custody, shared guardianship, reasonable access and, on page 1 of the application, had this to say about his claim for access, and I quote: I am asking for access to the children as follows: regularly scheduled parenting sessions every week, three minimum, late afternoons and weekends respectively requested. [ 4 ] As I indicated to the parties during the course of their most helpful submissions, when I first read this it was far from clear to me what type of access was being requested by the father.

During the course of her argument, counsel for the father explained that by use of the turn of phrase "shared custody and shared guardianship", the father was really advancing a claim for equal time with the child in question, namely EA, born [DOB], now a little girl of some ten months of age. [ 5 ] The current situation in this case is that this little girl is residing with her mother in Port Moody, as I understand it. The father gives his address to be in Maple Ridge.

The father has some access to his daughter, and I am told that that was initially two hours per day on Tuesday, Thursday and Saturday, and that the time was originally between 3:00 and 5:00 p.m. [ 6 ] However, recently, the mother has proposed that the time be changed to between 12:00 and 2:00, having regard to this little girl's mealtime and naptime and the usual sorts of considerations that one has with small children. [ 7 ] The father has explained through counsel that while he may have sent a text or some form of communication to the mother confirming that he was okay with respect to this change of time, he did so because his mindset was essentially that the mother is proposing when he would see his daughter and, until this matter is dealt with in court, he was really wishing to take anything and everything that was being offered to him. [ 8 ] He has said that he is not happy to have an access time in midday and frankly would prefer having a later access time as before, because he works as a landscaper and the proposed access time is right in the middle of what may be a working day for him, and it makes it difficult for him to work at a retainer as a landscaper and see his little girl at the same time.

I have some sympathy with that point of view. [ 9 ] He has also said that he wants further access than the mother is now prepared to grant, and so he is not content with what is being offered to him. He would like to see much more of his little girl than he is now doing. [ 10 ] During the course of counsel's submissions on his behalf, reference was made to the importance of having young children bond with each parent. I accept that point of view. I think it is one that is well understood in these courts by judges, who have any experience with family law matters.

Young children do benefit from having as much time with each parent at a young age as is reasonable in order to permit this bonding with each parent to occur. [ 11 ] After the matter was commenced in the Provincial Court seeking the relief that I have alluded to above, an action was commenced in the Supreme Court of British Columbia by the mother. This action was filed in December of 2012, I believe, on the 5th of December or thereabouts.

On January the 2nd, 2013, the father filed a reply and response to family claim in the New Westminster Division of the Supreme Court of British Columbia. [ 12 ] In the Supreme Court action, all the relief that is being sought by the father is claimed by the mother and, as well, is being claimed by the father in his counterclaim filed on January the 2 nd . According to submissions made by Ms. Sandhu this filing, was made roughly three days before the deadline for his filing of his reply and counterclaim. [ 13 ] In his counterclaim, one of the assertions found in

Schedule 5 under the heading "Other Orders" is this paragraph: He seeks an

order that: All non-property and divorce matters, including but not limited to parenting arrangements and child support, in this Supreme Court file,be adjourned generally as the Port Coquitlam Provincial Court has jurisdiction to continue to deal with these matters under file number15742 as those proceedings were started on November 23rd, 2012, and there is an access hearing scheduled for January 23rd, 2013 at9:30 a.m. [14] Having regard to the submissions that I have heard in this application, the factual assertions in this paragraph are correct and Iwill return to at least one of them.

In the result, while the father has indeed claimed in his counterclaim the same relief in the SupremeCourt of British Columbia as he is claiming or seeking in this court, I think it is clear that he did so really making his position clear in theparagraph that I have just read, that his preference would be to have matters over which the Supreme Court of British Columbia does nothave jurisdiction proceed in this court as against the Supreme Court of British Columbia.

Certainly that was the submission made by hiscounsel this afternoon before me. [15] The position taken by counsel for the mother on the application before me has not for the first time seen the light of day in mycourtroom today, but rather was first made in a brief proceeding, before my sister Judge Buller Bennett on December the 18th, 2012. The DARS recording of that proceeding was played during the course of the hearing before me, and on that date it is clear that thecounsel then appearing for the mother was advancing precisely the same position as is being advanced before me today by Ms. Sandhu. [16] Ms.

Hoover made it clear on December 18th in front of Judge Buller Bennett that the mother's position was that all mattersshould proceed in the Supreme Court of British Columbia. [17] Judge Buller Bennett, possibly because of weather conditions or the state of the court calendar that day, asserted that either theparties could agree to some form of a consent order which she would be prepared to make, or the matter would have to proceed to ahearing. [18] Counsel for the mother was very clear in stating before Judge Buller Bennett that she was not able to consent to any order in theProvincial Court because it would be, in essence, counterproductive to the position that the mother was taking, that this court ought not totake jurisdiction with respect to matters that were already pleaded and moving forward in the Supreme Court of British Columbia in theaction that I have referred to (Number E042705) in the Supreme Court, New Westminster Division. [19] In the result, Judge Buller Bennett instructed that a hearing be set, and on the same day namely December 18th, 2012, a hearingthat is scheduled to proceed tomorrow for one-and-a-half hours to deal with the matter of access was also scheduled in this court. [20] It is therefore clear as well, that when the counterclaim in the Supreme Court action was filed by the father's counsel, theapplication that I am hearing and for which I am giving reasons, was set to be heard on a date beyond the latest date by which he couldfile his reply and counterclaim to the Supreme Court action. [21] Therefore, in my view, putting aside the content of

Schedule 5 – “Other Orders” referred to above, the father was in no positionto do other than he did and seek the same relief that he sought in the Provincial Court in the Supreme Court, not knowing what theoutcome of the very application I am hearing might be. [22] Counsel for the mother states a number of reasons why her application should be granted.

She says, for example, that the fatherwas, at all material times before November 23rd - I think the date when this matter was started in the Provincial Court last year - awarethat it was intended that an action be commenced in the Supreme Court of British Columbia and when - although she did not quite put itthis way - the suggestion I took from her submission was that when he commenced his proceedings in the Provincial Court, he did so inthe face of quite a clear message from the mother and her counsel that they intended, if a settlement could not be achieved, to proceed inthe Supreme Court of British Columbia. [23] I do not think anything particularly turns on the fact that the father commenced his proceeding on November 23rd, 2012 in theface of such correspondence from counsel for the mother.

I do not believe, from what I have been told, that he, through counsel orhimself, made any agreement that he would not do what he did and therefore cannot be, for example, said to be in breach of such anagreement. [24] Counsel for the mother argued that because similar relief had been sought by the father in the Supreme Court action, that thatwas a reason why the provincial proceedings should be stayed or held in abeyance so that those matters could proceed in the SupremeCourt. I believe I have already dealt with this point above.

I have nothing further to say on the point. [25] She said that the court should avoid multiplicity of proceedings, that it did not make sense to have two actions proceeding, onein the Provincial Court and one in the Supreme Court. The case submitted to me by Ms. Sandhu, Auxi v.

Menton, (BC SC), [1994] BCJ 2442, a judgment of Master Bishop, while factually different from this matter, in my view, in paragraph 27, whichis the proposition for which this case is often cited, permits the father to do exactly what he has done in this case by reason of anexception that is carved out of the general statement made by Master Bishop to the effect that duplicity or multiplicity of actions in thevarious courts in B.C. is not to be encouraged. [26] The facts of the Auxi case are certainly different from those the case at bar.

In the Auxi case, the plaintiff mother, who lived inPenticton, filed a notice of motion asking that an order made by Provincial Court Judge Dollis be set aside. The facts of the case werethat the parties had two little boys. They separated in August of 1992. The mother moved to Penticton and the father remained in PrinceGeorge and from September 1993 onward, had the de facto custody of the two boys.

[ 27 ] He applied ex parte before Judge Dollis of this court on August 19th, 1994, and obtained an interim custody order of the two boys.

It was that order that the mother applied to have set aside on the basis that she had later commenced an action in the Supreme Court of British Columbia wherein similar relief to that, that had been sought by the father in the Provincial Court, had been granted. [ 28 ] It was in that context that Master Bishop, in paragraph 27 of his reasons, made the comment he did about duplicity or multiplicity of actions, but he did state importantly that there were four exceptions to this general rule, one of which is relied upon by counsel for the mother, number 4.

That is where additional relief is claimed in the Supreme Court of British Columbia over which the Provincial Court lacks jurisdiction, then as I read paragraph 27, duplicity or multiplicity of actions or, simply put, two actions, one in each court, can be permitted. [ 29 ] Of course, that is the precise situation that applies in the case that is before me.

While it is true that the matters that the father seeks to have dealt with in this court are likewise pleaded and before the Supreme Court, it is also true that no order has yet been made in the Supreme Court of British Columbia. [ 30 ] In terms of a timeline, I have mentioned that tomorrow there is a one-and-a-half hour hearing set to deal with the matter of access. There is no such hearing set in the Supreme Court of British Columbia, and I believe I have been told that the earliest date where there is a set fixed and known date for a judicial case conference is sometime later in February 2013.

Generally the rules in the Supreme Court of British Columbia do require that a judicial case conference first be gone through before applications can be brought in the court. [ 31 ] Ms. Sandhu explained that of course there is an exception to that rule, I think generally where there is seen to be some urgency. Then, the need for a judicial case conference can be foregone or overcome, no doubt by court order, in that court.

But in terms of the parties getting to court to have a resolution of matters, and importantly, the access matter, the timeline is far faster in this court as compared to the Supreme Court. [ 32 ] Ms.

Sandhu said, in the course of her submissions, that there was no urgency in this matter in the sense that the father was having regularly consistent access visits with his daughter, and she said quite fairly that when the mother proposed certain visit times, the father seemed to acquiesce. [ 33 ] She did also say that she did not understand what the father's position was with respect to access for purposes of the hearing tomorrow.

It was only, I think, in fairness to her through questions that I put to counsel for the father that she first learned that the father's application filed November 23rd, 2012, and notwithstanding what it states really means that he is seeking equal time with his daughter, and came to understand that, from his perspective - and I do not say she accepted this - but came to at least hear from his perspective there is some urgency on this access issue because the access that he is having, he feels essentially is unilaterally imposed by the mother and is not either at a time that he wants or as complete as he would like it to be. [ 34 ] So I do not accept, for purposes of this application, that there is no urgency to this access issue.

That may be the mother's perspective, but it is certainly not the father's perspective on that point. From his stand point – there is. [ 35 ] Part of the submission that was made by Ms. Sandhu as to why this matter should not proceed in this court is that it would be more costly if there were two matters going on, one in this court and another in the Supreme Court of British Columbia. I am afraid that I cannot accede to that submission. The truth of the matter is that the Supreme Court of British Columbia does have costs which this court does not have.

Counsel who have appeared before me are both in agreement that the costs that start on the first minute of the first day in a hearing in the Supreme Court are set out in Appendix B of the "Tariff of Costs" that apply in the Supreme Court under the Supreme Court Family Rules. [ 36 ] Item 7 provides as follows: For preparation for an attendance at trial of a family law case or of an issue in a family law case, the tariff of costs is $2,000 per day for each day or part of a day of trial up to five days, and $3,000 for each additional day or part of a day of trial. [ 37 ] There is nothing remotely like that in the Provincial Court of British Columbia.

I do not believe that there are tariffs that are charged to people who file applications in this court, unlike the practice that I believe pertains in the Supreme Court of British Columbia.

There can be absolutely no question in my mind that a proceeding in this court can be conducted far more cheaply to a litigant than in the Supreme Court of British Columbia if one focuses simply on the issue that I have alluded to, namely the absence of costs. [ 38 ] In the Supreme Court of British Columbia it is true that a judge does have a discretion to make an order that there will be no costs in a particular proceeding and that those orders are sometimes made, for example, in custody cases, but they are not routinely made. Whereas in this court, it is clear that no costs are awarded by a judge.

They do not exist. [ 39 ] The only two matters that really need to proceed in the Supreme Court of British Columbia, because that is the court that has exclusive jurisdiction are firstly division of property and perhaps matters pertaining to that, and secondly, the matter of a divorce. During the course of argument, counsel for the father admitted that there would not, as she understood her current instructions, be any contest in the Supreme Court as to the mother's entitlement to obtain a divorce order.

That may not be precisely the state of his pleadings, but certainly the position was that at a trial, if there was one, there would be no opposition to a judgment for divorce going. [ 40 ] In fairness, she did say that the father harboured some hope that there might be the possibility of a reconciliation, and assumedly, if that hope does not bear fruit, about which I will say nothing, I would understand that counsel's remarks are accurate.

It is a rare case indeed in the Supreme Court of British Columbia where the entitlement to a judgment for a divorce is ever contested if grounds appear to have been established. [ 41 ] That, then, means that if this matter proceeded in the Provincial Court, everything could be done in the Provincial Court without the need for the parties being liable or responsible for costs to one another, and the sole matter that would need to proceed in the

Supreme Court of British Columbia would be that of the division of assets. [ 42 ] Having regard to all the representations and submissions that have been made in this matter, I am very much of the view that the balance of convenience on the facts of this case favour the matters that are currently set to proceed in this court, including the access issue tomorrow, should proceed.

The application brought by the mother is therefore dismissed. [ 43 ] However, it is dismissed on terms, and the terms are as follows: Firstly, the father will, by January the 31st, 2013, at four o'clock p.m. file with this court a Form 4 financial statement with all mandated attachments thereto including any financial statements that he may have with respect to his landscaping business.

Forthwith upon filing of same he will provide a filed copy to counsel for the mother. [ 44 ] I also dismiss the application brought before me on the understanding that notwithstanding the fact that neither party has filed an application before this court for child support, that tomorrow they will be able to consent to an order for child support payable by the father to the mother including on a "without prejudice" basis, without prejudice to each party, to take the view at a future hearing that the amount should be more or less than that amount agreed to, and it would be my hope that they will see the sense in agreeing to such an order tomorrow without the necessity of having an application filed. [ 45 ] If the hearing judge tomorrow felt that an application should be filed tomorrow as a condition to making such an order, so be it.

In this court, we often like to take a practical approach to things. Counsel for the father said that she would be minded to agree to such an order tomorrow, and I am taking her at her word. [ 46 ] I am prepared to entertain any further reasonable conditions that the parties might propose with respect to the dismissal of this application. [ 47 ] I want to have this matter -- yes, there is one further thing while counsel are thinking about what I have said. Are you going back to your office this afternoon? [ 48 ] MS. POPESCU : I am, yes. [ 49 ] THE COURT : I think you should be faxing to Ms.

Sandhu -- how late will you be in your office? Are you going to your office? [ 50 ] MS. SANDHU: I am returning, yes. [ 51 ] THE COURT: How late do you think you will be there? [ 52 ] MS. SANDHU: I will probably be until about 7:00 or 8:00. [ 53 ] THE COURT: All right. I think you ought to be faxing or emailing to Ms. Sandhu by not later than 5:30 p.m. tonight a statement, a clear statement as to the relief that you are seeking in court tomorrow. That should have been done long ago.

You have heard my remarks about the gold standard for counsel work, and I am not to be taken to be critical of you or anybody else here, including your client, but people who go to court need to know always what the position of the other side is. That is what these pleadings are for. [ 54 ] So it is no criticism. This is intended to be a constructive comment, but it is an order. It is a term of the dismissal that by 5:30 tonight, the respondent father, through counsel, will fax to or email to Ms. Sandhu, counsel for the mother, a statement including a

schedule as to the access that the father would propose with his daughter, and setting out the position that he intends to take at the hearing scheduled for tomorrow. [ 55 ] The plan of course would be that that document would be provided to the judge sitting tomorrow on the application, and perhaps Ms. Sandhu would have something in typewritten form that she would be able to give to the judge as well. That would be incredibly helpful for the judge tomorrow to have your

schedule in one hand, her

schedule in the other, and hear some evidence and make a decision as to who is right: what was in the best interest of this little girl and maybe, for all we know, come up with a compromise. [ 56 ] That is the kind of way I think you need to be practising law, and I say this to you because you are an articling student. (ORAL REASONS FOR JUDGMENT CONCLUDED)