K.V.D.W. v. A.L. Date:, 2011 BCPC 280

Citation: K.V.D.W. v. A.L. Date: 20110929 2011 BCPC 0280 File No: F7347 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: K.V.D.W. APPLICANT AND: A.L. RESPONDENT RULING OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Applicant: J. Speed Counsel for the Respondent: S. Wright Place of Hearing: North Vancouver , B.C. Date of Hearing: September 15, 2011 Date of Judgment: September 29, 2011 [ 1 ] The applicant, K.V.D.W., and the respondent, A.L., are the parents of B.A.V.D.W-L, born [DOB].

The applicant has made several applications to the Court and obtained two ex parte orders regarding custody and access. The respondent has filed a Notice of Motion challenging this Court’s jurisdiction over him in light of the fact that he resides outside B.C. Background [ 2 ] The parties had a brief relationship and never cohabited. B. was born on [DOB. The parties entered into a Parental Agreement on May 2, 2008, described as a “final settlement of the issues of custody, access, guardianship, and support.” The agreement provided for joint custody and guardianship, primary residence with Ms.

V.D.W., and unrestricted access to Mr. L. It was prepared with the assistance of a family justice counsellor. [ 3 ] The same day it was signed, the parties together, or by agreement, filed the Parental Agreement at the registry in the North Vancouver Provincial Court. Mr. L. says this was done as a matter of convenience and in order to have the agreement stored in a reliable place for future reference. [ 4 ] On January 20, 2009, Ms. V.D.W. filed a Notice of Motion seeking an ex parte order permitting her to renew B.’s passport and travel with him. That order was granted on February 17, 2009. Mr.

L. was not served with the application, or with a copy of the order. Ms. V.D.W. did not file an affidavit with her application, but in order to obtain the order she would have had to satisfy the Court that she

was unable to serve or locate Mr. L. [ 5 ] On June 28, 2011, Ms. V.D.W. filed an application to vary the Parental Agreement, seeking sole custody and guardianship and specified access. In her application she stated that Mr. L. had seen B. in June 2011, that he refused to cooperate with her to arrange B.’s schooling, and that he did not return him from visits on time. [ 6 ] Ms. V.D.W. filed a Notice of Motion on the same date seeking interim sole custody and guardianship, permission to proceed without notice to Mr. L. due to urgency, and exemption from Rule 5 [which requires a case conference before a hearing is set]. [ 7 ] Ms. V.D.W. also filed an affidavit stating, in

summary, that Mr. L. had not been involved in B.’s life more than once a year, that she did not have an address for him, that he had recently been getting more involved with B., and that he had sent a letter [or email] to the Waldorf School in which she had enrolled B., telling them that B. would not be attending the school. She said she had become aware of this letter because the school had sent her a copy of their email response. Ms. V.D.W. based her assertion of urgency on the fact that the school was closing for the summer and she wished to assure B. a spot. [ 8 ] Ms.

V.D.W. also described some problems with Mr. L.’s returning B. after his access period in early June 2011. In response to this, she told Mr. L. she would not let him see B. unless he agreed to sign a new agreement. Mr. L. subsequently attended at B.’s school picnic unannounced and stood watching Ms. V.D.W. and B. for two hours in the rain. Ms. V.D.W. said this caused her to fear that Mr. L. might take B. [ 9 ] Mr. L. left Vancouver on June 19, 2011. On July 5, 2011 the Honourable Judge Challenger granted Ms. V.D.W. an ex parte order allowing her application, requiring Mr.

L. not to remove B. from B.C., suspending his access, and permitting Ms. V.D.W. to register B. in the Waldorf School. Again, Mr. L. was not served with the Notice of Motion or the order, presumably because Ms. V.D.W. satisfied the Court that she had no contact information for him and did not know when he might return to the province. [ 10 ] Mr. L. filed a Notice of Motion and an accompanying affidavit in North Vancouver Provincial Court on August 25, 2011, seeking a declaration that the Provincial Court lacks jurisdiction over him for want of jurisdiction to serve its process upon him.

He also seeks dismissal or a stay of the proceedings in Provincial Court, and cancellation of the ex parte orders. [ 11 ] In the affidavit accompanying his Notice of Motion, Mr. L. says that he resides in Budapest, Hungary, that he has seen B. on many occasions since the Parental Agreement, and that Ms. V.D.W. is aware of his address, telephone number, email addresses and Skype information. He nonetheless only became aware of the orders Ms. V.D.W. had obtained as a result of a registry search that he had his counsel conduct in mid-July, 2011. He said he and Ms.

V.D.W. had discussed where B. would attend school, and they differed on whether he should attend the Waldorf School. He sent an email to the school on May 13, 2011 to advise them it was unlikely he would agree to have B. enrolled. He remained in Vancouver until June 19, but Ms. V.D.W. did not tell him about her intention to file an application. [ 12 ] Mr. L. filed a Notice of Family Claim in the B.C. Supreme Court on August 24, 2011. In his Claim he mentions the Parental Agreement but not that it was filed in the Provincial Court. [ 13 ] In submissions, Mr. L.’s counsel said Mr.

L. would prefer to have the issues between the parties dealt with in the Supreme Court, in part because of that Court’s ability to enforce access through its contempt powers. Applicable Law and Discussion [ 14 ] Mr. L. has never been served with the applications that Ms. V.D.W. has made, nor would this Court have had authority to order that he be served, while outside B.C. The case of Houston v. Houston , [1992] B.C.J. No. 1872 (P.C.) and others that have followed it stand as clear authority for that proposition. [ 15 ] In Houston v. Houston , the Honourable Judge Rae referred to the earlier case of Melissen v.

Melissen , [1989] B.C.J. No. 2131 (P.C.) , a decision of the Honourable Judge Collings. Judge Collings in Melissen cited a paper that Mr. L.’s counsel included in his materials, written by John Horn, before he became a Master of the Supreme Court. Mr.

Horn stated that a person could submit to the jurisdiction of a court “[b]y agreement, express or implied ... which agreement may be made before or after litigation was commenced.” [ 16 ] Judge Collings found that a consent order signed by the respondent in the case before him did not constitute consent to jurisdiction, in part because it did not contain a statement or term to that effect or a reference to the applicable court.

He stated, “I think submission to jurisdiction has to be less ambiguous than this, even implied submission.” There was nothing in the order filed or the additional information available to the Court to establish that the respondent had been aware of an issue regarding jurisdiction, such that he could be said to have consented to it. [ 17 ] The only basis on which this Court could take jurisdiction over Mr. L. or Ms. V.D.W.’s applications would be if Mr. L. can be said to have consented or submitted to the Court’s jurisdiction. Ms.

V.D.W. through her counsel takes the position that he has done so by filing the Parental Agreement in the North Vancouver Provincial Court Registry. Mr. L.’s counsel submits that the agreement itself does not contain a clause providing that the Court has jurisdiction, that the agreement was filed as a matter of convenience, and Mr. L. did not have the benefit of legal advice when he attended to file it at the registry. [ 18 ] In relation to the effect of filing an agreement, Section 121(2) of the Family Relations Act provides as follows:

(2) If a signed copy of a written agreement containing a provision respecting (

a) the custody of or access to a child by a parent, or (

b) the maintenance of a child by a parent or of a person by the person's spouse

is filed in the Provincial Court in accordance with the Provincial Court (Family) Rules, the provision is enforceable under this Act or theFamily Maintenance Enforcement Act as if it were contained in an order made under this Act. Section 121(4) of the Act provides further:

(4) A provision that is referred to in subsection (2) and is contained in a written agreement filed under this

section may, at any time, bevaried or rescinded (

a) by a new written agreement filed in the Provincial Court in accordance with the Provincial Court (Family) Rules, or (

b) by the Provincial Court, on application and subject to sections 20 and 96.

(5) The filing of a written agreement under this

section does not (

a) restrict or prevent a court from making an order for the same relief as is provided for in the agreement, or (

b) prevent the agreement from being filed or enforced in the Supreme Court under

section 122. [19] The parties, having filed the agreement in the Provincial Court, are therefore in the same position, in relation to enforcement andvariation, as if the Parental Agreement were an order of this Court made after a hearing.

This case is therefore somewhat different fromthose cited above, in which the issue was whether a party could initiate proceedings against a respondent who was outside thejurisdiction of the Court. [20] I note that in relation to the question of jurisdiction to vary an agreement that has been filed, Master Nitikman held in Smith v.Smith, 2000 BCSC 177, that the Supreme Court had no jurisdiction to vary a separation agreement that had been filed in the ProvincialCourt. There has been a fair amount of judicial comment on the issue of jurisdiction to vary.

While the question of the Supreme Court’sjurisdiction to vary an agreement filed in the Supreme Court appears to remain open, the law appears to clearly hold that an agreement filed in the Provincial Court may only be varied there: Ekland v. Sangsari (1996), (BC CA), 24 R.F.L. (4th) 119(BCCA). See also S.K. v. L.K., 2009 BCSC 69. [21] Although there may be other routes by which jurisdiction may be found in the Supreme Court, such as the ability to providecorollary relief, the question of whether the Supreme Court will even accept jurisdiction over Mr.

L.’s application to vary the ParentalAgreement is at best unclear. I expect his counsel will ensure that the Supreme Court is aware that the Parental Agreement has beenfiled with this Court. [22] One factor considered by the judges in the cases where jurisdiction was declined was that the applicants would not be leftwithout a forum, because they could go to Supreme Court and seek service ex juris. That may not be open to Ms. V.D.W. in light ofsections 121 and the related case law, and it is possible that she would be left without a forum. [23] On the issue of jurisdiction over a party outside the province, Mr.

Speed cited N.B. v. L.E., 2009 BCPC 322, and A.D.F. v. I.C.F.,2005 BCPC 221. In the former, a mother moved out of the province after proceedings had been commenced, and the Honourable JudgeDavis found jurisdiction on the basis of the fact that the party had previously filed an application in the Court. [24] In A.D.F. v. I.C.F., the father applied to vary an order under which the mother had been permitted to move to Mexico with thechild.

She did not comply with some of the terms, and the Honourable Judge Auxier drew an inference that the mother had consented tothe jurisdiction, given that she was the one who had initially commenced the proceedings. [25] It must be considered at this point that the respondent here does not take the position that the issues between the parties must bedecided outside BC. He has attorned to the jurisdiction of the B.C. Supreme Court by filing a proceeding there.

In addition, he exerciseshis access to B. in B.C., has done so as recently as June 2011, and intends to continue doing so. [26] The situation here is therefore distinguishable from several of the cases cited, in which the un-served party was arguing that B.C.was not the appropriate territorial jurisdiction. While I do not take the view that submitting to the jurisdiction of the Supreme Courtcloaks this Court with any extra-provincial authority, it is another feature that distinguishes the respondent’s circumstances from those inthe cases cited. Conclusion [27] The view I take of the matter is that Mr.

L. consented to the jurisdiction of this Court by filing the Parental Agreement in theProvincial Court Registry. The situation is similar to the cases cited in which the court accepted jurisdiction because the party resisting ithad initiated proceedings in the Court. [28] In addition, while the Family Relations Act does not make the agreement an order of the Court, it places the parties in the sameposition in relation to variation as if they had obtained an order in this Court after a hearing.

That position is analogous to the caseswhere the parties had previously attorned to the jurisdiction by seeking an order. [29] Moreover, the provisions of the Family Relations Act relating to the variation of an agreement filed in the Provincial Court andthe case law interpreting them support a conclusion that this Court may be the only forum with jurisdiction to vary the Agreementbetween the parties. [30] Considering the reasoning of Judge Auxier in A.D.F. v. I.C.F. and Judge Davis in N.B. v. L.E., I do not believe it is open to a

party who has left the province after an order was made at their request to argue the Court does not have jurisdiction to hear a variation application, simply because the party cannot be physically served while outside the province. I see this situation as much the same, or at least analogous, to those cases, with the added factor that this respondent comes and goes from the jurisdiction to exercise his access.

This is not an application to initiate process against a foreign party, but to vary an agreement that the parties elected, while both in the province, to place under the jurisdiction of the Provincial Court. [ 31 ] As to whether the respondent had legal advice, as I have noted, they made the agreement with the assistance of the family justice counsellor. While it cannot be known what advice they received, it may be presumed that the counsellor suggested the agreement be filed, and perhaps described some of the effects of doing so.

In any event, I do not think the absence of legal advice can negate the clear intent of the parties to place the agreement under Provincial Court jurisdiction. [ 32 ] I find that this is a situation where, in the whole of the circumstances, as stated in the paper by Mr. Horn, the respondent has submitted to the jurisdiction of the Court. I therefore find that this Court has jurisdiction over Ms. V.D.W.’s variation application. I find in the circumstances it is not necessary for Ms. V.D.W. to serve Mr.

L. personally, outside the province, and the issue of the Court’s jurisdiction to order service ex juris does not arise. [ 33 ] The issue of whether the ex parte orders were properly made is another matter. In Houston v.

Houston , in relation to ex parte orders, Judge Rae stated that they “are by definition interim orders... and dependant upon the ability of the litigant to serve the other party and set the matter down for hearing.” She went on: “Logically, if the interim order cannot be served, then the matter cannot be set for trial, and therefore this Court has no authority to make the interim order.” [ 34 ] Judge Rae was dealing with an application for an interim order as the initiating process in the Provincial Court.

While I do not find that in this case the Court was without jurisdiction to make the ex parte orders at the time when they were made, in light of the agreement having been filed, I am concerned about Ms. V.D.W.’s apparent assertions to the Court, on both occasions, that she had no means of contacting Mr. L. [ 35 ] The first ex parte order is essentially moot and there is no need to set it aside. I note however, that Ms. V.D.W. apparently never told Mr. L. about that application.

One would have expected that, having had to take the drastic measure of attending court to obtain permission to renew B.’s passport and travel with him, she would have taken steps to ensure that she had a means of contacting him outside the province, after that. As well, Mr. L.’s affidavit indicates that she had his contact information and could access him via email or Skype. [ 36 ] As well, the timing of the email to the Waldorf School and that of the second ex parte application, just over a week after Mr. L. left B.C., refute Ms.

V.D.W.’s assertion of urgency and suggest that she intentionally waited until after Mr. L. left, instead of serving him and permitting him a chance to respond. [ 37 ] It is difficult to conclude other than that Ms. V.D.W. was not forthright about her ability to contact Mr. L. In my view, Mr. L.’s application to have that ex parte order set aside should probably be granted.

I would observe as well that the Supreme Court would not have jurisdiction to set that order aside, and in my view it is best dealt with at this point in the proceedings. [ 38 ] I am mindful however that the issue of setting aside the ex parte orders was not argued on the merits, rather on the basis of jurisdiction. The parties are entitled to a hearing on that issue, if they wish it, which should probably proceed before Judge Challenger without reference to my own observations. It may be that Ms.

V.D.W. will decide not to pursue that particular issue, and elect to proceed to a full hearing on the merits. [ 39 ] Mr. L. will have 30 days from the date on which his counsel receives a copy of this Ruling to file a Reply to Ms. V.D.W.’s Application to vary the Parental Agreement. ________________________________ The Honourable Judge C. Baird Ellan Provincial Court of British Columbia