J.K. v G.K. Date:, 2015 BCPC 117

Citation: J.K. v G.K. Date: 20150330 2015 BCPC 0117 File No: F8997 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: J.K. APPLICANT AND: G.K. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DYER Appearing in person: J.K. Counsel for the Respondent: M. Guthrie Place of Hearing: North Vancouver , B.C.

Date of Hearing: October 14, 2014, January 13, 2015 Date of Judgment: March 30, 2015 [ 1 ] THE COURT: On March 18th, 2014, this court made a protection order pursuant to s. 183 of the Family Law Act in favour of J.K., the applicant. The order was made on an ex parte basis with respect to an application brought by J.K., a lady now of approximately 78 years of age, and enjoined one, G.K., her now approximately 53-year-old daughter, from attending at her place of residence, an apartment in North Vancouver.

The applicant was not represented by counsel at the hearing, insofar as I have been able to determine. [ 2 ] The order did not expressly state how long it was to remain in force. Thus, by virtue of s. 183(4) of the Family Law Act , it had a one-year term and, therefore, recently expired on March 17th, 2015. [ 3 ] This order, in due course, was served on the daughter, G.K., on September 22nd, 2014, and she applied to set it aside. This application came on for hearing before me on January 13th, 2015. The daughter, G.K., was then represented by counsel, Ms. Guthrie.

The mother, J.K., was not. [ 4 ] By January 13th, 2015, the parties had filed some three affidavits, two from the mother, J.K., sworn March 17th and September 30th, 2014, and one by the daughter, G.K., sworn September 29th, 2014. I have reviewed these three affidavits.

I note that in her September 30th, 2014, affidavit, the mother J.K. asks that the original order made March 18th, 2014, be extended for six months. [ 5 ] I should also mention that on review of these affidavits, it appears that the daughter, G.K., did reside with her mother, J.K., in 2010 and 2011, but on March 18th, 2014, there is no evidence she was then residing with her mother.

The exact date G.K. ceased to live with her mother is not made clear in the above affidavits. [ 6 ] When this matter came on for hearing before me and before receiving any sworn evidence, I expressed a concern that I held that perhaps on March 18th, 2014, this court lacked jurisdiction under the Family Law Act to make the order it did, including on an ex parte basis.

I believe I then stated this concern to be, in essence, what I characterized as a threshold issue which, if determined against the applicant, J.K., would end the matter and would obviate the necessity of me hearing any evidence on the application. [ 7 ] Ms. Guthrie indicated that she, too, questioned whether the order should have been made in the first instance. As the mother, G.K., was not represented by counsel on January 13th, 2015, I stood the daughter's application down to allow her to access duty counsel. Shortly, Ms.

Jenab appeared in this role for J.K. and argued in support of the order on its merits, but, in the very brief time she had to meet with J.K. and consider the jurisdictional issue, was not really in a position to advance any reasoned submission on point. [ 8 ] On January 13th, 2015, I made an order giving both parties about two weeks to provide me with written submissions dealing with my above concern. I have now reviewed those submissions and taken an opportunity myself to have some research done on the manner in which s. 183 and related

definitions found in the Family Law Act should be construed by a judge of this court. A Provincial Court judge is only granted the jurisdiction to make court orders if empowered to do so by some statute of common law principle. Absent such authority, we can make no court orders. [ 9 ] As to J.K.'s written submission, it really, again, referred to the facts of this matter and did not deal, in my view, with the jurisdictional issue that I raised earlier at all. [ 10 ] Section 183(1) and (2) of the Family Law Act state as follows: 183(1) An order under this

section (

a) may be made on application by a family member claiming to be an at-risk family member, by a person on behalf of an at-risk family member, or on the court's own initiative, and (

b) need not be made in conjunction with any other proceeding or claim for relief under this Act.

(2) A court may make an order against a family member for the protection of another family member if the court determines that (

a) family violence is likely to occur, and (

b) the other family member is an at-risk family member. An "at-risk family member" is defined in s. 182 as follows: "at-risk family member" means a person whose safety and security is or is likely at risk from family violence carried out by a family member ... [ 11 ] Hence, there are two classes of persons the court needs to be concerned about when an application is made under s. 183 for a protection order:

(

a) the applicant who must be a family member and might be generally described as the "victim"; (

b) the respondent who must also be a family member carrying out violence against the victim. The respondent can generally be described as a "perpetrator." [ 12 ] It follows that there must be a relationship between the victim and perpetrator of the family violence alleged.

They must be both "family members." This term is also defined in the Family Law Act s. 1 which I shall come to. [ 13 ] Section 183(2) of the Family Law Act also, in my view, makes it clear protection orders can only be made where both victim and perpetrator are family members. [ 14 ] Thus, by way of an example, a woman who is a mother of two children cannot under s. 183 of the Family Law Act seek a protection order to keep an unrelated neighbour in her apartment building away from her and to stop him from, for example, swearing at her in the building parking garage.

There is not the necessary relationship between these two classes of people to give the court jurisdiction to make a protection order. Hence, the victim in this simple example would have to look outside the provisions of the Family Law Act for a remedy of some sort. [ 15 ]

Section 1 of the Family Law Act defines "family member" as follows: "family member", with respect to a person, means (

a) the person's spouse or former spouse, (

b) a person with whom the person is living, or has lived, in a marriage-like relationship, (

c) a parent or guardian of the person's child, (

d) a person who lives with, and is related to, (

i) the person, or (ii) a person referred to in any of paragraphs (

a) to (c), or (

e) the person's child, and includes a child who is living with, or whose parent or guardian is, a person referred to in any of paragraphs (

a) to (e) ... In addition, to make matters more complicated, "child" is defined in s. 1: 1. In this Act: "child", except in Parts 3 [Parentage] and 7 [Child and Spousal Support] and

section 247 [regulations respecting child support], means a person who is under 19 years of age ... [ 16 ] Thus, a "child" in the definition of "family member" must be a person under 19 years of age.

I need not for purposes of these reasons set out the definition of "family violence" found in s. 1 of the Family Law Act . [ 17 ] The Continuing Legal Education Society of B.C. published a paper authored by one Graham Kay in September 2013 entitled "An Overview of the Intersect between the Family Law Act , Criminal Code and the Ministry of Child and Family Development." At page 5.1.2, paragraph B, there is a brief discussion of "family members" and "at-risk family members" which states in part, and I quote: The FLA has given a broad definition to the meaning of "family member" (FLA s. 1), which was undefined in the FRA.

The definition includes ... [ 18 ] And thereafter, there follows a reference to the subsections I have set out above and they are lettered (

a) through to (g). The author goes on to say: The broad definition recognizes that households or families are more than two parents and children, and capture situations such as parents who have adult children living with them. [ 19 ] The only case which I have found dealing with s. 183 is a decision of Donegan PCJ in D.J.K. v. J.J.K. , 2013 BCPC 223 , wherein a father sought a protection order against his 31-year-old son with whom he was living at the time the application was made,

unlike in the case at bar. The judge said this in paragraph 7 of his reasons, and I quote: The first thing the court needs to determine is whether or not the applicant is a family member, as that term is defined in s. 1 of the Family Law Act . As I said, "family member" has a pretty broad definition and includes: (

d) a person who lives with, and is related to, (

i) the person So, on the evidence before me, Mr. K., Sr. is a “family member”. He lives with and is related to J.K., who is the person he is seeking a protection order against. [ 20 ] In the result, Donegan PCJ granted the order applied for. He, thus, first reflected on the applicant's status. If he was a family member, where, in essence, was he referred to in the definition found in s. 1 of "family member". [ 21 ] Using this same approach, I would ask where is the applicant, J.K., referred in the definition of "family member"? The result would be the same in s-s. (d)(

i) however, only if the two people were living together. They were not. Hence, G.K. and J.K. would not fall within this provision. [ 22 ] Because G.K. was over age 19, she would not qualify as a "child" within s-s. (

e) and, hence, would not be a "family member" for this reason, either. [ 23 ] In the result, I find that there was not on March 18th, 2014, the required relationship between the applicant mother, J.K., and respondent daughter, G.K., required by the Family Law Act to give the court jurisdiction to make the order it did. [ 24 ]

Section 187 of the Family Law Act states in part as follows: Changing or terminating orders respecting protection 187(1)On application by a party, a court may do one or more of the following respecting an order made under this Part: (

a) shorten the term of the order; (

b) extend the term of the order; (

c) otherwise change the order; (

d) terminate the order. [ 25 ] In my view, s. 187(1)(

d) applies and I terminate the order today effective March 18th, 2014, or nunc pro tunc . In the result, the extension of the order sought cannot be granted. [ 26 ] Before I leave this matter, I wish to state how very difficult I have found trying to reasonably construe the definition of "family member" in the context of s. 183 of the Family Law Act requiring both the applicant and respondent to be family members.

I have come away from my efforts feeling a sense of great judicial inadequacy that the definition is somehow smarter than I am. [ 27 ] I believe my difficulty is due to the use of terms such as "a person" and "the person." Are they used in the same way, for example, in line 1 of the definition and in s-s. (d)? For example, which person is the applicant victim? How is the respondent alleged perpetrator of family violence described?

Is he or she "the" or "a" person? [ 28 ] I wonder if the definition for purposes of s. 183 might not be simplified and be made more easily understood by all if the focus was on the required relationship of the applicant victim and the respondent alleged perpetrator of family violence. It might state, for example, in a new s. 183(2)(c), preceded with an "and" in s-s. (b), with the "and" at the end of s-s. (

a) deleted, as follows; (

c) the relationship between the applicant family member and respondent family member alleged to have carried out family violence is one of the following, that of: (

i) spouses or former spouses; (ii) persons defined in s. 3(1)(

b) of this Act;

(iii) persons currently living together or who have lived together in a marriage-like relationship; (iv) a parent and his or her child; (

v) a guardian and his or her child; (vi) a parent and a child 19 years of age or older where the two persons are living together on the date the application is made. [ 29 ] There may be other relationships that might be included in the definition.

Such a definition would allow one to focus on the required relationship between what I have generally called the "victim" and "perpetrator" without having to attempt to divine what "a person" and "the person" are intended to mean. [ 30 ] It would allow Her Majesty's judges and the multitude of laypeople who are often unrepresented in court and who need to understand the Family Law Act to go through each relationship and ask, "Am I within it or not?" If not, one would move on.

Only if a would-be applicant and respondent were within a relationship deemed worthy of permitting a court order for protection from family violence, assuming family violence existed, could the court then be called upon to consider making an order. [ 31 ] It is to be remembered that in all trial courts in British Columbia, many litigants are unrepresented by counsel. I venture to say in the Provincial Court of British Columbia and with respect to family law cases the majority of litigants are unrepresented by counsel.

They do not, therefore, necessarily have the benefit of legal advice in, for example, construing and understanding statutory provisions which should this be simplified to be so understood by such persons. [REASONS FOR JUDGMENT CONCLUDED]