F.C. v. S.C., 2021 BCPC 95

Citation: F.C. v. S.C. 2021 BCPC 95 Date: 20210422 File No: F4354 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: F.C. APPLICANT AND: S.C. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE

Counsel for the Applicant: Anwar Mujtabah Counsel for the Respondent: Bradley Cope Place of Hearing: Colwood , B.C. Date of Hearing: March 8, 2021 Date of Judgment: April 22, 2021 The Issue [ 1 ] This case is concerned with issues of parenting time and parental responsibilities in relation to Mr. and Ms. C.’s three children, ages 6, 9 and 10. In reasons which I rendered on April 6, 2021, I concluded that this court has jurisdiction to adjudicate the issues between the parties: 2021 BCPC 79 ; [2021] BCJ No. 720 . Ms.

C. asks that I decline to exercise that jurisdiction on the ground that Ontario is a more appropriate forum. The Facts [ 2 ] Mr. and Ms. C. are married. They have three children, ages 6, 9 and 10. They separated in February, 2019. Between February, 2019 and July, 2020, each parent had the children in her or his care for part of the time under the terms of a

schedule agreed between them. [ 3 ] At all times prior to July, 2020, Mr. C., Ms. C. and the children all resided in British Columbia. [ 4 ] On July 4, 2020, Ms. C. moved with the children to Ontario. She did not give notice to Mr. C. of her intention to move. Mr. C. learned through FaceBook posts that Ms. C. and the children had gone to Ontario. [ 5 ] On August 20, 2020, Mr. C. filed an application to this court for orders concerning guardianship, parenting responsibilities and parenting time in relation to the children. [ 6 ] In November, 2020, Mr. C. was able to locate Ms. C. via FaceBook.

He applied for an order for leave to serve her substitutionally by FaceBook Messenger, and that order was granted by my colleague, Her Honour Judge Rogers, on December 21, 2020. Service was effected in that way. The Statute [ 7 ] The application is authorized by

section 11 of the Court Jurisdiction and Proceedings Transfer Act SBC 2003, c 28 .

(1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding.

(2) A court, in deciding the question of whether it or a court outside British Columbia is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including (

a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum, (

b) the law to be applied to issues in the proceeding, (

c) the desirability of avoiding multiplicity of legal proceedings, (

d) the desirability of avoiding conflicting decisions in different courts, (

e) the enforcement of an eventual judgment, and (

f) the fair and efficient working of the Canadian legal system as a whole. The Factors Referred to in the Statute a. Convenience and Expense for the Parties and Witnesses. [ 8 ] Counsel have not provided me with a list of witnesses. I do not fault them for that. We are at a very early stage in the proceeding. However, it is apparent that many of the key witnesses live on Vancouver Island. [ 9 ] Until August, 2020, the parents and the children lived in British Columbia, and, for a time, in Washington State.

The affidavits filed on this application raise many disputed issues of fact respecting events which occurred prior to August, 2020. The witnesses who can give evidence of those facts live in British Columbia and Washington State. For example: a. Ms. C. deposes that: I was informed by [Mr. C.’s] parole officer in 2015 during a trip to Seattle, and I believe it to be true, that [Mr. C.] has faced several other sexual assault charges. I do not know if these charges resulted in any convictions. b. Ms.

C. deposes that the British Columbia Ministry of Children & Family Development (“MCFD”) was engaged with the family from 2011 to 2017, and imposed restrictions on Mr. C’s contact with the children. She says: I understand that [Mr. C.] also has a 12-year-old daughter whom he has never had care of, due to his extensive MCFD involvement.

The MCFD social workers who were active in the case work on Vancouver Island. MCFD’s files probably contain relevant documents. I am not aware of any authority under which an Ontario court could order production of those files for use in litigation. c. Ms. C. deposes that: I have always been the primary caregiver for the [children]. Mr. C. deposes that: From [2015] until our separation in February, 2019 we [i.e. Ms. C., Mr. C. and the children] all lived together in the same house …. … for the entire year of 2019, I was the primary parent …. Because Mr. & Ms.

C. and the children were resident on Vancouver Island during the period 2015 – 2019, it is likely that most of thewitnesses on this point also live on Vancouver Island. d. From 2017 to 2019, Mr. C., Ms. C. and the children resided in the home of Ms. C.’s mother in Victoria, B.C. The evidence on thisapplication does not provide the current address of Ms. C.’s mother. e. From January to June, 2020, Mr. & Ms. C. and the children lived in the home of Mr. C.’s aunt in Victoria, B.C. f. Ms. C. deposes that: [Mr.

C.] was not permitted to be on elementary school property and therefore could not participate in drop off and pick-ups from school. Mr. C. deposes that: In 2019, for a few weeks only, I was not allowed on elementary school property at [omitted for publication], and therefore could notparticipate in drop offs and pickups from school. I still did the pick-up and drop offs, but I wasn’t allowed past the gate. The schoolspoke with MCFD and the issue was resolved. [Omitted for publication] is a suburb of Victoria. [10] Ms. C. and the children have been living in Ontario since August, 2020. In her affidavit, Ms.

C. does not identify any witnessesnow living in Ontario whom she would wish to call at the trial of this proceeding. She says that the children started attending school inperson in Ontario in January, 2021. It may be that their teachers could give useful evidence. She says that she has established aconnection with the Six Nations First Nation in Ontario, but does not identify a witness from that First Nation whom she intends to call. Ms.

C. and the children have all received counselling in Ontario, and it seems likely that the counsellors would have helpful evidence togive. [11] I conclude that the majority of the witnesses at trial are likely to be from Vancouver Island. If witnesses from Seattle arerequired, it is a short trip (3 hours by ferry or 20 minutes by air) from Seattle to Victoria. The counsellors now assisting Ms. C. and thechildren are likely to be very important witnesses, but their evidence in chief may be readily provided in writing and their cross-examinations can be conducted by video link if necessary. b.

Governing Law [12] I am not aware of any material difference between the laws of Ontario and those of British Columbia, as they apply to issues ofparenting time and parenting responsibilities. Counsel referred me to none. c. Avoiding Multiple Proceedings [13] Mr. Cope, for Ms. C., informs me that Ms. C. has “… taken steps to initiate a proceeding in Ontario …”, but I have not been toldwhat steps have been taken. Mr. C. has not been served with any process from Ontario. d. Risk of Conflicting Decisions [14] If Ms.

C. commences a proceeding in Ontario, and if the Ontario court allows that proceeding to continue to trial, there would bea risk of conflicting decisions. However, if, as seems likely, judgment were rendered in this proceeding before the Ontario proceedingcomes on for trial, the most significant issues between the parents would be decided before the Ontario trial.

The consequent issueestoppel would greatly reduce the risk of inconsistent decisions. [15] When considering whether to enforce a family law order from another Province, this court is directed to bear in mind theimportance of discouraging child abduction: FLA,

section 73(c). In Shortridge-Tsuchiya v. Tsuchiya 2010 BCCA 61; [2010] BCJ No.217 (leave to appeal refused @ 2010 SCCA 106), Justice Prowse concluded at paragraphs 68 – 73 that the British Columbia courtsshould decline jurisdiction where the children had been removed to British Columbia in breach of sections 65 – 69 of the FLA. Whilenot, strictly speaking, binding upon the courts of Ontario, I would expect them to be strongly influenced by the judgment in Tsuchiya.

Ifthe Ontario courts were to follow Tsuchiya in this case, I expect that they would decline jurisdiction, thereby obviating the risk ofconflicting decisions. e. Enforcement of the Decision in This Proceeding [16] Counsel did not identify any risk that a decision of this court in this case might not be enforced by the Ontario courts. Atcommon law, the Ontario courts would not have been obliged to enforce a foreign judgment in relation to child custody: Oakes v. Oakes[1975] NBJ No. 24; (NB CA), 56 DLR (3d) 737. However, most Provinces, including Ontario, have enactedreciprocal enforcement legislation.

It appears likely that British Columbia is a reciprocating state under the Ontario Reciprocal

Enforcement of Custody Orders Act RSO 1989, c 387, but I have been unable to confirm that with the limited resources available to me. f. The Fair & Efficient Working of the Legal System [17] Ms. C. unilaterally decided to move the children to Ontario without notice to or consultation with Mr. C. In so doing, she simplyignored sections 65 – 69 of the Family Law Act SBC 2011, c 25 (“the FLA”), which: (

i) required notice to and consultation with Mr. C.before making a material change in the residence of the children; and (ii) provided an opportunity for adjudication if the parents did notagree. That was profoundly unfair to Mr. C. One parent cannot unilaterally change the child's habitual residence by surreptitiously relocating the child. … the custodial parent didnot have a right to change unilaterally the child’s residence. The child’s residence was too important a factor for one parent to havecontrol over it. Change in residence required parental agreement or a court order. R.A.H. v.

N.J.G. (BC SC), [1998] BCJ No. 2481; 65 BCLR (3d) 319; 43 RFL (4th) 67 @ paragraph 50 The Importance of the Status Quo [18] Mr. Cope, for Ms. C., submits that “… regardless of which court assumes jurisdiction, the Children are likely to remain inOntario pending final decision”. He points out that the views of the children ought to be considered, and that it will be more convenientto ascertain those views in the Province in which the children reside. Mr. Mujtabah, for Mr.

C., advises that he intends to apply for anorder that the children be returned to Vancouver Island immediately, and that they remain on Vancouver Island until the trial of thisproceeding. [19] I do not think that I should make any assumption about the result of Mr. C.’s intended application for an order that the childrenreturn to British Columbia immediately. It is certainly not devoid of merit, and is strongly supported by the judgment in Tsuchiya. Forthe purposes of the present application, I consider the children’s presence in Ontario to be a neutral factor. Cultural Factors [20] Ms.

C. self-identifies as partly Indigenous and partly Black. Her Indigenous roots are in Ontario. Mr. C. is a member of the[omitted for publication] First Nation, whose traditional territory is near Tofino, on the west coast of Vancouver Island. The evidence onthis application is insufficient to allow me to weigh the relative importance of the children’s cultural attachment to one First Nation orthe other. Conclusion [21] On balance, I conclude that British Columbia is a more convenient forum than Ontario. For that reason, Ms. C.’s application isdismissed. April 22, 2021 ____________________ T. Gouge, PCJ