S.B.H. v. Z.E.F. Date:, 2014 BCPC 77

Citation: S.B.H. v. Z.E.F. Date: 20140207 2014 BCPC 0077 File No: F53597 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.B.H. APPLICANT AND: Z.E.F. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY

Counsel for Z.E.F.: S. McPhee, Q.C. Counsel for the Director Of Maintenance Enforcement: B. Hird Place of Hearing: Nanaimo , B.C. Date of Judgment: February 7, 2014 [ 1 ] THE COURT (orally): The applicant, Z.E.F., has brought on for hearing before this court his filed Application Respecting Existing Orders or Agreements under the Family Law Act (the " FLA "), seeking to vary the order made by the Honourable Judge Cowling on Tuesday the 17th day of February, 2009.

That order was made as an Interjurisdictional Support Order and pursuant to the provisions of the Interjurisdictional Support Orders Act of British Columbia (the " ISO Act "). [ 2 ] The order of Judge Cowling made on the 17th of February, 2009, ("Judge Cowling's Order") was in connection with two children of the relationship of S.B.H. and the applicant. They have two children, twins, K.M.F. and C.T.F., having a birthdate of January 3, 2007 (the "children"). [ 3 ] S.B.H. was resident in the Northwest Territories at the time that Judge Cowling's Order was made.

That matter came before the British Columbia Provincial Court by way of an Interjurisdictional Support Orders Act application made in the Northwest Territories by S.B.H.

The application was processed through the responsible designated authority in the Northwest Territories, sent to the responsible designated authority in British Columbia, who apparently determined that Z.E.F. was a resident of British Columbia and sent the matter on to the court registry at Nanaimo, British Columbia. [ 4 ] After the documentation had been served on Z.E.F., there were a couple of adjournments and then the matter came before Judge Cowling on the 17th of February, 2009.

At that time, Z.E.F. was found to be the father of the children and he was found to have an imputed Guideline income of $20,000 per annum. [ 5 ] The form of the order indicates that duty counsel appeared for Z.E.F. at the time that that order was made.

There was apparently an application made by Z.E.F. to adjourn the matter, which was denied by the Honourable Judge Cowling. [ 6 ] As a result of the matter that was heard then before him, the Honourable Judge Cowling ordered that Z.E.F. pay to S.B.H. the sum of $315 per month for the support of the children, commencing August 1, 2008, and continuing on the first day of each month thereafter for so long as the children are "children" as defined in the Family Relations Act . [ 7 ] The materials before me indicate that presently, as at February 5, 2014, Z.E.F. has outstanding arrears owed pursuant to Judge Cowling's Order totalling $22,972.56, of which the amount of $20,698.58 represents the arrears from ongoing maintenance, and interest in the amount of $1,328.98, plus Provincial Government fees totalling $945. [ 8 ] The materials before me are extensive in nature and deal with the necessary evidentiary issues in order for Z.E.F. to possibly succeed at seeking a variation of the amount that he owes pursuant to Judge Cowling's Order.

The provisions of s. 174(1) of the Family Law Act (Reducing or Cancelling Arrears) are applicable in this type of FLA application. The materials that have been prepared for and on behalf of Z.E.F. address the requirements of that

section and speak to the issue as to whether or not it would be grossly unfair not to make an order reducing the arrears that have been accumulated under Judge Cowling's Order. [ 9 ] A preliminary issue has been raised with which I must deal. That issue is whether or not the applicant has proceeded correctly under the Family Law Act , rather than proceeding under the provisions of the Interjurisdictional Support Orders Act of British Columbia. [ 10 ] The applicable

section of the ISO Act provides under

Part 4, "Variation of a Support Order", a series of

definitions. The first definition is that of "applicant", which is found under s. 21: "applicant" means a party applying to vary a support order; "respondent" means a party responding to a support variation application; "support order" means a support order as defined in

section 1 that is (

a) made in British Columbia, or (

b) made in a reciprocating jurisdiction but does not include a provisional order or a provisional variation order. [ 11 ] The

section that has application to Z.E.F.’s matter is found under Division 1 of

Part 4, it is entitled "Variation if Applicant in

British Columbia". It provides under the heading Preparing support variation application — no provisional order required, in

section 25 as follows: 25

(1) If an applicant resides in British Columbia and believes that the respondent habitually resides in a reciprocating jurisdiction that does not require a provisional variation order, the applicant may start a process in British Columbia that could result in the variation of a support order being made in the reciprocating jurisdiction. Subsection (2) then provides for an initiating process by completing the support variation application; the additional provisions are found under subsections (2), (3), and (4). [ 12 ]

Section 26 indicates that after the support variation application has been completed, the applicant then is to submit the support variation application to the designated authority in British Columbia. The

section goes on to say that upon receipt of the variation application, the designated authority must, as soon as practicable, review the support variation application to ensure its completeness, and then send a copy of the completed support variation application to the appropriate authority in the reciprocating jurisdiction in which the applicant believes the respondent habitually resides. [ 13 ] Carrying on under that section, there is provision under subsection (3) for the reciprocating ISO jurisdiction to request additional information, which is mandatory for the applicant to provide, and then subsection (4) reads as follows: On receiving a certified copy of an order and reasons, if any, from a reciprocating jurisdiction under an enactment in that jurisdiction that corresponds to

section 34, the designated authority must send a copy of the order and reasons, if any, to the applicant and the British Columbia court. [ 14 ] I understand that the process contemplated by s. 25 is that the variation application (in this particular case) would be dealt with in the Northwest Territories; that is if the provisions under s. 25 are followed. [ 15 ] The argument that is made on behalf of Z.E.F. is that the provisions of s. 35 of the Interjurisdictional Support Orders Act should in fact apply.

Section 35 is headed, "British Columbia court varying a registered order" and provides: 35

(1) The British Columbia court may, after taking into account any right of a government or agency of a government under

section 40, vary a support order made or registered in British Columbia under this Act or under the former enactment if (

a) both the applicant and respondent accept the British Columbia court's jurisdiction, or . . . then moving to the next subsection which is still in effect: (

c) the respondent habitually resides in British Columbia.

(2) The Family Law Act applies for the purposes of varying a support order under the circumstances referred to in subsection (1), as if the order being varied were an order respecting child support or spousal support under that Act. [ 16 ] In order to avail himself of s. 35, Z.E.F. relies upon the fact that S.B.H. was served with the FLA application documentation pursuant to Rule 9(12) of the Provincial Court Family Rules.

Having been served with the documentation in connection with Z.E.F.'s variation application, S.B.H. then filed a document in the form of an affidavit, although she did not file a FLA reply document pursuant to Rule 3. That affidavit was sworn, it appears, on April 8, 2013, in front of a notary public in and for the Northwest Territories. [ 17 ] That affidavit is of some importance in this matter. It states as follows: I am opposed to the application of Z.E.F. I believe that he has dropped out of school. I believe that he can eventually pay the arrears.

He has told me on the phone that he thinks he can eventually pay this money. I believe that he is capable of working and paying support. When we were together, he worked as a truck driver. His parents have been supporting him for the past few years. I believe they are paying for his lawyer. They live in Yellowknife. They do buy gifts for the children. There have been a couple of times where they have picked up things that I needed when I had no money. I am a student currently. I have an apartment of my own. I get Student Financial Assistance which is my main source of money.

I will eventually have to pay this back. It is very expensive to live in Yellowknife and receiving child support would help the children. [ 18 ] Before I can accept jurisdiction in this matter, I must be satisfied as to whether or not the procedure to be followed is bound by s. 25 of the ISO Act , or whether or not this matter falls within s. 35, as argued by Z.E.F. [ 19 ] The decision in the Northwest Territories Supreme Court in Kapolak v. Udlaoyak confirms that the Interjurisdictional Support Orders Act , S.N.W.T. 2002 c. 19, was in force as of the date of that decision in 2006.

The court in that decision says as follows at paragraph 6: The ISO legislation is relatively recent and has not been the subject of much jurisprudence. The statute is based on model uniform legislation which was developed by a standing committee of officials from the federal, provincial and territorial governments for the

purpose of facilitating the interjurisdictional recognition, variation and enforcement of support orders made in family proceedings towhich the federal Divorce Act does not apply. The legislation eliminates the need for two hearings in situations where the reciprocatingjurisdictions have both adopted the ISO scheme, as have the Northwest Territories and Nunavut. Under the old scheme, a party obtaineda provisional order in his or her jurisdiction which was not effective until confirmed at a second hearing in the reciprocating jurisdictionin which the other party resided.

However, under the ISO scheme, an order made in one jurisdiction is enforceable in the reciprocatingjurisdiction without the necessity of a confirmation hearing. See Mathers v. Bruce, 2005 BCCA 410 , [2005] B.C.J. No. 1773(C.A.). [20] This matter ended up in British Columbia Provincial Court, as noted above, because of the decision by S.B.H. to seek childmaintenance against Z.E.F. for the support of the children. The procedures that she utilized were in accordance with the ISO legislationin the Northwest Territories.

I agree with the submission that I have heard from the counsel for the Family Maintenance EnforcementProgram in British Columbia, who has participated in this hearing, not on behalf of S.B.H., but rather as part of an application forenforcement that had also been brought for hearing on today's date.

The submission is that the ISO procedures that S.B.H. utilized werethe appropriate ones in order for her to bring the matter forward, and save her the time, expense, and inconvenience of having to attend inBritish Columbia for the purposes of obtaining the child support order. [21] The affidavit that I have referred to, sworn by S.B.H., does not raise the issue of whether this court has jurisdiction. There isnothing in the affidavit itself that specifically states that she is accepting the British Columbia court's jurisdiction in this matter.

In orderto make that determination, I must decide whether or not the steps that she has taken are sufficient in order for there to be an assumptionon the part of this court that she has, in fact, as within the words of s.35, accepted the British Columbia court's jurisdiction. [22] Counsel for Z.E.F. has referred me to two decisions which deal with the issue of attornment. The argument is that the affidavitthat has been filed by S.B.H. amounts to an attornment to the jurisdiction of this court and hence, flowing from that, the acceptance of thejurisdiction of this court. [23] The first decision is in Rakunas v.

Scenic Associates Limited, [2008] B.C.J. No. 651, a decision of our Supreme Court. Reference has been made to paragraph 34. In it Madam Justice Russell says as follows: Under the common law, participation in the court's process may be sufficient for a party to submit (attorn) to the court's jurisdiction. [24] She then goes on to cite the decision of Mr. Justice Cumming of our Court of Appeal in Jordan v. Schatz, 2000 BCCA 409,paragraphs 16 to 17. In that decision, Mr.

Justice Cumming indicated, on the facts of that case, that merely accepting ex juris service orfiling of an appearance does not necessarily amount to an attornment. [25] The second decision referred to me is that of Madam Justice Wedge in Morgan v. Dadi, 2011 BCSC 1445. That decisionreferences the decision of Commonwealth Insurance, 2010 BCCA 18. At paragraph 17 of that Court of Appeal decision, Mr. JusticeChiasson indicated that intention of a party with respect to participation in court proceedings or taking steps is irrelevant. At paragraph33 of the decision, Mr.

Justice Chiasson says as follows: In my view, the judge erred by being concerned with whether Levelton objectively affirmed its willingness to participate in the litigationprocess. This led him to conclude Levelton had not taken a step in the litigation because it appeared its next action would be to seek astay and not to obtain an order for particulars. That inquiry was not relevant in the circumstances of this case. Then Mr.

Justice Chiasson goes on to review the Supreme Court Rules of Court and s. 15 of the Arbitration Act. [26] Madam Justice Wedge in Morgan concludes that the filing of a response taken in that matter by the party challenging theattornment was in fact a step taken pursuant to the Rules of Court, concluded that the party's intentions were irrelevant, and concludedthat they had attorned to the jurisdiction of the court. [27] The steps that were taken by the parties in each of those two decisions certainly, in my view, went beyond what S.B.H. did inthis matter.

If I were to allow this proceeding to go forward and to make a decision, S.B.H. would be deprived of the operation of theISO Act. This Act is viewed by our Court of Appeal as being a code for matters of this nature. This proposition is outlined in thedecision of Herriman v. Blais, [2012] B.C.J. No. 2382. [28] The information and the submissions that I have heard from Z.E.F.'s counsel with respect to his original FLA application to seekto cancel the arrears and to vary Judge Cowling's Order are very comprehensive and are very useful in deciding those particular issues.

However, given what I consider to be the requirements of the ISO Act , it is with some regret, given the limits of available court time,that I must conclude that I cannot proceed to deal with Z.E.F.'s application, unless S.B.H. provides a clear acceptance of this court'sjurisdiction to determine these issues and, in the absence of such clear acceptance, then she must have the opportunity of availing herselfof the advantages of the ISO regime, both in British Columbia and in the Northwest Territories. [29] Accordingly, I will decline jurisdiction to deal with the substantive matters before me.

Those matters remain live issues and theapplication of Z.E.F. is not in any way dismissed on its merits. [30] That concludes my reasons for judgment with respect to this matter. I wish to state that if the decision is made by Z.E.F. to tryto obtain the consent of S.B.H. in order that this matter can be heard by this Court pursuant to s.35 of the ISO Act, and that provessuccessful, I am prepared to have the matter referred back to me. I would also grant liberty to S.B.H. to attend any hearing of this matterin this court by way of telephone. [31] MR. McPHEE: Thank you, Your Honour.

[ 32 ] THE COURT: All right. [ 33 ] THE CLERK: So Your Honour, is the application dismissed? [ 34 ] THE COURT: No, the app -- [ 35 ] THE CLERK: So it is adjourned generally or . . ? [ 36 ] THE COURT: I am declining jurisdiction to hear the substantive issue-- [ 37 ] THE CLERK: Yes. [ 38 ] THE COURT: --or to rule on the substantive part of the application; I am declining to do so on the basis of both a lack of jurisdiction and the non-compliance with procedural requirements of the ISO Act . It is left open for -- [ 39 ] MR.

McPHEE: Adjourned -- adjourned generally would be the appropriate -- [ 40 ] THE COURT: I am adjourning the substantive portion of the application generally. [ 41 ] THE CLERK: Okay. [ 42 ] THE COURT: All right. Thank you. (REASONS CONCLUDED)