Lei v. Kwan, 2010 MBCA 108

Citation: Lei v. Kwan, 2010 MBCA 108 Date: 20101122 Docket: AF10-30-07381 IN THE COURT OF APPEAL OF MANITOBA Coram : Chief Justice Richard J. Scott Mr. Justice Richard J. Chartier Mr. Justice Alan D. MacInnes BETWEEN : MEI CHENG LEI ) (also known as JOANNA LEI) ) T. L. Morrow and ) C. C.

Berland (Petitioner) Appellant ) for the Manitoba ) Family Law Branch ) - and - ) Appeal heard: ) October 13, 2010 ) JEFFREY KA KI KWAN ) Judgment delivered: ) November 22, 2010 (Respondent) Respondent ) SCOTT C.J.M. 1 The issue on this appeal is whether the motions court judge correctly interpreted the provisions of The Inter-jurisdictional Support Orders Act , C.C.S.M., c. I60 ( ISO Act ), enacted in 2002, in circumstances where an applicant under the ISO Act in Manitoba applied for support from her common-law partner resident in Québec.

Facts 2 The relevant facts can be summarized briefly as follows. 3 The petitioner, Lei, and respondent, Kwan, lived together in a conjugal relationship for approximately 12 years. Their relationship began in Manitoba in March 1994. After they had been living in Manitoba for two years and nine months, their cohabitation was interrupted for approximately three months between December 1996 and April 1997.

Kwan was required to leave Manitoba to return to Hong Kong for immigration purposes while Lei remained in Manitoba to finish her university year. 4 The parties then moved to Montreal, where they lived together until their relationship abruptly ended approximately nine years later, in March 2006. Shortly thereafter, Lei returned to Winnipeg to reside with her family. In January 2008, s he applied for relief (spousal support and division of property) under Manitoba’s The Family Maintenance Act , C.C.S.M., c. F 20 ( FMA ), and served the petition ex juris upon Kwan in Québec.

Kwan filed an answer, in which he challenged the jurisdiction of the Manitoba courts, and ultimately participated in a case conference by teleconference, when he reiterated his position. Lei then elected not to pursue her FMA petition, choosing instead to make an application under the ISO Act . 5 The purpose of the ISO Act is to simplify the recognition and enforcement of support orders between the provinces of Canada as well as with other reciprocating states. While all jurisdictions in Canada have passed legislation to implement the ISO Act , it is not yet in force in Québec.

The ISO Act provides for this eventuality by requiring that in a reciprocating state where the ISO Act is not in force, a provisional order must first be obtained. Section 7(1) reads as follows: Where the respondent is ordinarily resident in a reciprocating jurisdiction that requires a provisional order, the Manitoba court may, on application by a claimant and without notice to and in the absence of a respondent, make a provisional order taking into account the specific statutory or other legal authority on which the claimant’s application for support is based.

6 The necessity for a provisional order under sec. 7(1) is consistent with the former practice (now repealed) under The Reciprocal Enforcement of Maintenance Orders Act , C.C.S.M., c. M20, rep. January 31, 2003 ( REMO ), which obliged a court, in the jurisdiction where an application was first made for support from a non-resident, to pronounce a provisional order with respect to the existence of a support obligation and the quantum of support. If granted, the order would then be sent to the reciprocating state where the respondent resided.

The court in the receiving state, after hearing from the respondent, could confirm, reject or vary the first order. The provisional order was of no force and effect until confirmed by the reciprocating state where the respondent resided. 7 Under the ISO Act the procedure is much different. A more streamlined application process has been fashioned. In those jurisdictions where the ISO Act , or its equivalent, is in force, no provisional order is required. Once the application is made, the package is simply forwarded as an administrative act, to the reciprocating state.

Only one judicial hearing takes place, namely, in the jurisdiction where the respondent resides. 8 In this instance, the motions court judge dismissed Lei’s application. She took “notice of the well-known fact” (at para. 21) that “[a]s a party to a de facto union, as it is known in Québec, Ms. Lei had no right to seek support from Mr. Kwan under Québec law and he had no obligation to provide her with support” (at para. 23).

The situation is different in Manitoba and most other provinces, where common-law partners, by statute, are entitled to support when they have cohabited together for a defined period of time, which in Manitoba is three years. 9 The motions court judge acknowledged “[i]t is clear that under the former REMO Act Ms. Lei could have obtained a provisional order of support based on Manitoba law,” and asked herself “is the situation different under the ISO Act ?” (at para. 44).

To answer this question she framed the issue as (at para. 30): Which province’s substantive support law should be applied when the court is asked to make a provisional order of support for a claimant? Should an individual, even one like Ms.

Lei who has evidenced intention to be domiciled in Manitoba, be able to seek and obtain relief pursuant to the Family Maintenance Act , supra, against an individual resident in another province when she could not seek that relief in the jurisdiction where the respondent resides? 10 She concluded that “[s]ubsection 7(1) of the ISO Act should not be interpreted to enable a claimant to rely on any law, but rather either of the laws contemplated in subs. 12(3) of the Act ” (at para. 52), which provides: With respect to the entitlement to and the amount of support for the claimant, the Manitoba court must apply the law of Manitoba, but if under the law of Manitoba the claimant is not entitled to support, the Manitoba court must apply the law of the jurisdiction in which the claimant and the respondent last maintained a common habitual residence. 11 In her view (at paras. 51, 64): Without clear direction I cannot believe that the Legislature of Manitoba intended to create two approaches to the law to be applied to the determination of support obligations pursuant to the ISO Act ; one for outgoing cases and another for incoming cases.

If the ISO Act was intended to create rights that might otherwise not exist, it would say so, as the former REMO Act did.

Without clear, express language it should not be interpreted as creating substantive rights and obligations against residents of jurisdictions where none exist. 12 In a nutshell, because she was satisfied that no relief could be granted to Lei in Québec, the application was dismissed. 13 Before this court, counsel for the designated authority (under sec. 36(1) of the ISO Act ) argued that the motions court judge had committed a fundamental error in failing to recognize that even when a provisional order was required, the entire jurisdiction and authority to grant support under the ISO Act rested with the receiving state, i.e.

Québec in this instance. Sections 5(1) and (2) specify the requirements for a support application under the ISO Act . Section 5(2) (

b) mandates that the application includes: To start the process, the claimant must complete a support application that includes the following: . . . . . (

b) a copy of the specific statutory or other legal authority on which the claimant's application for support is based, unless the claimant is relying on the law of the jurisdiction where the respondent is ordinarily resident; 14 In this instance, Lei relied on “the law of the jurisdiction” hearing the case. These sections make clear the intention for all ISO Act applications, whether a provisional order is necessary or not, that only the court in the jurisdiction where the respondent is ordinarily resident is to make the final determination.

The effect of the motions court judge’s order, contrary to the purpose and intent of the ISO Act , was to prevent a petitioner from having the same prompt access to a hearing in the respondent’s jurisdiction that she would have had if she had not required a provisional order under sec. 7(1) . 15 Counsel for the designated authority also argued that the motions court judge erred in relying upon sec. 12(3) as support for her conclusion. Section 12(3) is contained within Division 2 of

Part 1 of the ISO Act , entitled “Claimant Ordinarily Resident Outside

Manitoba.” In other words, it applies only to incoming support applications received in Manitoba from the jurisdiction where the claimant resides. On the other hand, applications originating in Manitoba, such as this one, come under Division 1 of the ISO Act , entitled “Claimant Ordinarily Resident in Manitoba.” Decision 16 In my opinion, the appeal must be allowed. Section 12(3) has no application to proceedings under Division 1 of

Part 1 of the ISO Act . Since Division 2 of

Part 1 is applicable only when the Manitoba court is asked to determine a final and enforceable order in response to an initial application from another jurisdiction, it makes sense that the ISO Act provides direction with respect to the choice of law. 17 But, when making a provisional order under sec. 7(1) of Division 1 of

Part 1 of the ISO Act , the Manitoba court, as directed by sec. 5(2), can only take into account the “legal authority on which the claimant’s application for support is based.” It is only the order made by the confirming court in the respondent’s jurisdiction that can create substantive rights and obligations. The motions court judge’s concern that too much was being read into the ISO Act in circumstances where a provisional order is still required overlooks the intent of the new scheme. 18 During oral argument, a question arose whether sec. 41 of the ISO Act might be applicable. 19 Section 41(1) of the ISO Act provides : In a proceeding under this Act, (

a) the Manitoba court must take judicial notice of the law of a reciprocating jurisdiction and, where required , apply it; and (

b) an enactment of a reciprocating jurisdiction may be pleaded and proved for the purposes of this Act by producing a copy of the enactment received from the reciprocating jurisdiction. [emphasis added] 20 In my opinion, sec. 41 has no application to the facts here. Simply stated, the Manitoba court is not required to “take judicial notice of the law of a reciprocating jurisdiction,” even in those circumstances where a provisional order is required. I agree with counsel for the designated authority that the likely purpose of sec. 41(1) (

a) is to deal with an application under Division 2 of

Part 1 based on the law of a third jurisdiction. Where, pursuant to sec. 12(3), “under the law of Manitoba the claimant is not entitled to support,” recourse to judicial notice may be necessary. 21 It follows that whether the motions court judge’s judicial notice of the law of Québec is correct or not is beside the point; the legal error is in engaging in the process in the first place. Even in the case of Québec, where the Manitoba courts are required under the ISO Act to hold a hearing and make a provisional order, the order has no force and effect unless confirmed (or varied) in the reciprocating jurisdiction.

It makes eminent sense that only the Québec court can determine how the provisions of its own law should be applied. 22 This conclusion is entirely consistent with the modern principle of statutory

interpretation which mandates a purposive and contextual analysis. As Steel J.A., for the majority, explained in L.M.M. v. W.G.B. , 2003 MBCA 17 , 170 Man.R. (2d) 182 (at para. 22 ): It is now accepted that statutory

interpretation must be attempted within a purposive and contextual approach. Statutory

interpretation cannot be limited to the words used by themselves. Instead, the words of

an Act are read in their entire context and in their grammatical and ordinary sense harmoniously within the scheme of the Act, the object of the Act and the intention of Parliament. See R. v. Loscerbo (A.) (1994), 1994 CanLII 16626 (MB CA) , 92 Man.R. (2d) 263 ; 61 W.A.C. 263 (C.A.), at para. 18, per Scott, C.J.M. … 23 Clearly, the fundamental legislative purpose of the ISO Act was to modernize the interjurisdictional recognition of support orders.

When Bill 37 was introduced for a second reading, the Honourable Gordon MacKintosh, the Minister of Justice and Attorney General, identified the objective of the new Act as (Manitoba, Legislative Assembly, Hansard , No. 44 (11 June 2001)): This act will repeal and replace Manitoba’s current legislation governing the recognition and establishment of inter-jurisdictional support orders, The Reciprocal Enforcement of Maintenance Orders Act.

The new Act will simplify and streamline the process by which support orders are established, varied and recognized in inter-jurisdictional cases. … 24 If an ISO Act applicant seeking a provisional order under sec. 7(1) of the ISO Act must prove foreign law before a Manitoba judge, this is neither streamlined nor simple. 25 As a matter of policy and good sense, the argument that only the court of a receiving state should interpret and determine the local law is compelling.

While there is a difference in the process requiring a provisional order under sec. 7(1) and the new streamlined process contemplated by the ISO Act , the purpose and object is still the same.

26 What little authority there is is consistent with this perspective. For example, in Hansen v. Hansen , 2006 ONCJ 569 , Brophy J., in dealing with an application for provisional child support against a father who was living in Germany, made a provisional order based on the law of Ontario without reference to the law of the respondent’s jurisdiction. 27 In the circumstances, the appeal is allowed without costs and the matter remitted back to the Court of Queen’s Bench for the purposes of making the appropriate provisional order under the ISO Act . _____________________________ C.J.M. I Agree: _______________________________ J.A. I Agree: _______________________________ J.A.