J.F. v. M.M.

2022 BCSC 1747 J.F. v. M.M.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: J.F. v. M.M., 2022 BCSC 1747 Date: 20221007 Docket: E213024 Registry: Vancouver Between: J.F. Claimant And M.M. Respondent Before: Master Hughes Reasons for Judgment The Claimant, appearing in person: J.F. Counsel for the Respondent: C.L. Caldwell Place and Date of Hearing: Vancouver, B.C. September 28, 2022 Place and Date of Judgment: Vancouver, B.C. October 07, 2022 Table of Contents Introduction.. 3 CFCSA Proceeding.. 3 Provincial Court FLA Proceeding.. 4 Supreme Court Proceeding.. 6 Jurisdiction.. 8 Conclusion.. 14 Introduction [1] The claimant father has applied for a number of orders in two notices of application, filed August 8 and September 12, 2022. His primary focus is obtaining an order for parenting time. [2] The respondent mother also seeks a number of orders in her notice of application filed September 16, 2022, including an order pursuant to s. 194(3) of the Family Law Act, S.B.C. 2011, c. 25 [FLA] that this Court decline jurisdiction in favour of the Provincial Court. The parties agreed that the respondent's application regarding jurisdiction should be heard and determined first. [3] By way of background, the parties began dating in or about June 2017. They lived together at various times commencing in 2018, and finally separated in November 2021. The parties disagree as to the length of their cohabitation, but

the difference is not relevant to this application. The respondent has two children from a prior relationship (the "Older Children"), and the parties are the parents of one child, who I will refer to as "A.", who was born in September 2021. CFCSA Proceeding [4] The Director of Child, Family and Community Services (the "Director") became involved with this family in 2018, in response to a report alleging inappropriate conduct between the claimant and the Older Children. The Director obtained an interim, without prejudice protective intervention order (the "PIO") pursuant to s. 28(5.1) of the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46 [CFCSA] on July 5, 2018, which prevented the claimant from having contact with the Older Children. The Older Children were subsequently removed from the respondent's care on September 29, 2018 as a result of the respondent allegedly enabling a breach of the PIO by allowing the claimant to have contact with the Older Children. The Older Children remained in the care of the Director, following a contested presentation hearing and a contested temporary custody hearing. They were later placed in the care of their father, with supervised access to the respondent. The respondent's parenting time increased over time, on the condition that the claimant was not present during her time with the Older Children. [5] The parties resumed

cohabitation in or about March 2020, and A. was born in September 2021. The parties separated on November 26, 2021. [6] On December 17, 2021, the Director applied in the Provincial Court for an interim supervision order with respect to all three children. The order sought would allow the children to remain in the care of the respondent on conditions including that the Older Children not have any contact with the claimant, and that A. not have unsupervised access with the claimant unless approved in advance by the Director. On January 13, 2022, the Director agreed to allow the claimant to have supervised access with A. [7] Although the respondent was prepared to consent to the Director's application for a supervision order, the claimant opposed it. What followed was a contested presentation hearing, held over the course of six days in June and August 2022. On September 7, 2022, an interim supervision order was granted, which included terms that A. would continue to reside with the respondent, and that the claimant would have supervised access and undergo a parental capacity assessment. I was not provided with a copy of that supervision order, although I was provided with a copy of the Director's application with the proposed supervision terms attached, and was advised by the respondent's counsel that the order was granted in substantially the terms sought. [8] The claimant filed

an appeal of the interim supervision order on September 12, 2022. That appeal is yet to be heard. The next appearance in the CFCSA proceeding was to be the commencement of the protection hearing, set for October 4, 2022, at which time further dates would likely be set. Provincial Court FLA Proceeding [9] The respondent obtained a without notice protection order under the FLA against the claimant on November 30, 2021 (the "November Protection Order"), in the Provincial Court of BC, North Vancouver Registry No. F-10403 (the "Provincial Court FLA Proceeding"). The November Protection Order restrained the claimant from contacting the respondent, A., the Older Children, or the father of the Older Children. [10] The claimant filed an application to set aside or vary the November Protection Order, and that application was heard on December 14, 2021, but did not conclude on that day. The respondent filed an application about a family law matter in the Provincial Court FLA Proceeding on December 21, 2021, seeking orders regarding parenting and child support. The claimant subsequently filed his own application for a protection order against the respondent in the Provincial Court FLA Proceeding on December 29, 2021. [11] A subsequent protection order was granted in the Provincial Court FLA Proceeding on January 13, 2022 (the "January Protection Order"), which allowed the claimant to see

A. under the supervision of the Director. On February 14, 2022, the claimant filed an application to set aside the January Protection Order. [12] The January Protection Order was slightly modified on February 3, 2022 (the "February Protection Order"). On April 29, 2022, the claimant applied to set aside the February Protection Order. [13] The hearing of all of the claimant's applications continued together on March 11, April 4, and June 8 and 9, 2022. On June 29, 2022, Judge Janzen of the Provincial Court delivered oral reasons for judgment in which she modified the February Protection Order, including a term that the claimant must have no communication with A. except as supervised by a responsible adult approved of by the Director or as allowed by a court order made under the FLA (the "June Protection Order"). [14] The claimant appealed the June Protection Order, and that appeal was dismissed on September 2, 2022. [15] The claimant applied to vary the June Protection Order in the Provincial Court FLA Proceeding, and on August 18, 2022 the June Protection Order was varied to allow the claimant's parenting time with A. to be supervised by the family preservation worker or a responsible adult approved of by the family preservation worker after consultation with the parties. In addition to the variation of the protection order, an interim without prejudice consent order was

granted by Judge Janzen on August 18, 2022, which provides that the respondent is to drop off A. for the claimant's supervised parenting time at a specific location, and that the only restrictions on the claimant's supervised parenting time are that the respondent will provide all food that A. consumes and that the claimant will surrender his smartphone to the supervisor during the supervised parenting time. [16] I was advised by the respondent's counsel at the hearing that she had just received notice over the lunch break that a family management conference has now been scheduled in the Provincial Court FLA Proceeding on October 24, 2022. Supreme Court Proceeding [17] The claimant filed his notice of family claim in this proceeding on November 30, 2021, which was served on the respondent on December 14, 2021. The claimant seeks orders regarding parenting and division of family property and debt. A response to family claim and a counterclaim were filed by the respondent on January 6, 2022. In her response to family claim, the respondent clearly states that the parenting issues are before the Provincial Court in both the FLA and CFCSA proceedings, and that she is opposed to having the parenting issues litigated in the Supreme Court. [18] A notice of application filed by the claimant on January 6, 2022 regarding parenting issues came before the court on February 1, 2022, at which

time it was adjourned generally with the direction that it was not to be reset until after the Provincial Court had rendered its decision regarding the claimant's application to vary the November Protection Order. [19] On February 4, 2022, the claimant filed a notice of trial without consultation with the respondent, setting this matter for an 18-day trial to commence July 4, 2022. [20] A judicial case conference ("JCC") was held on March 14, 2022. The only orders made were for the parties to exchange lists of documents within 30 days and releasing the parties from the JCC program. [21] The claimant's notice of application filed January 6, 2022 came back before the court on March 17, 2022, at which time the court again adjourned the application generally with the direction that it was not to be reset until after the Provincial Court's decision. [22] The claimant filed another notice of application on April 27, 2022, seeking orders regarding A., which was heard on May 10, 2022 and adjourned generally. [23] On May 4, 2022, the claimant filed yet another notice of application regarding parenting orders. It was heard on May 16, 2022, at which time it was dismissed with the direction that it could not be reset until after the conclusion of both Provincial Court proceedings, being the claimant's application to vary the November Protection Order and the CFCSA proceeding. [24] On July

4, 2022, on the first day of trial, the trial judge adjourned the trial generally on the application of the respondent. The claimant subsequently filed a new notice of trial on September 2, 2022, again without consultation with the respondent, resetting the trial of this matter for 20 days commencing on January 3, 2023. [25] At the hearing before me, the respondent had newly-retained counsel, who advised that she is not available for the January trial dates. This was the first time that the respondent has been represented by counsel in this proceeding. Jurisdiction [26] Section 194 of the FLA deals with overlapping court jurisdiction: Overlapping court jurisdiction 194 (1) If a proceeding respecting a family law dispute may be started in either the Supreme Court or the Provincial Court, the starting of a proceeding in one court does not prevent the starting of a second proceeding in the other court, unless the relief applied for in the second proceeding has already been granted or refused in the first proceeding. (2) If proceedings are started in both courts and each court may make an order for the same relief, the making of an order by one court does not prevent an application for an order in the other court unless the relief that is the subject of the application to the other court has already been granted or refused by the first court. (3) If proceedings are started in both

courts, a court, on application and to the extent that the matter is within the court's jurisdiction under section 192 [Supreme Court jurisdiction] or 193 [Provincial Court jurisdiction], as applicable, may do one or more of the following: (a) decline to hear a matter; (b) decline to hear a matter until another matter under this Act, or under any other law of British Columbia or Canada, has been heard in the other court; (c) consolidate proceedings started in the other court with proceedings started in the court; (d) hear a matter. (4) Despite subsection (2), the Supreme Court may change, suspend or terminate, under section 215 [changing, suspending or terminating orders generally], an order of the Provincial Court if (a) the Supreme Court is making an order that affects an order of the Provincial Court, and (b) the parties would have to go back to the Provincial Court to have the Provincial Court's order changed, suspended or terminated as a result. (5) If the Supreme Court acts under subsection (4), the Supreme Court's order is deemed to be an order of the Provincial Court for all purposes. (6) Nothing in this section authorizes the Supreme Court to change, suspend or terminate an order of the Provincial Court if the Provincial Court has refused to change, suspend or terminate the order, except as provided under section 233 [appeals from Provincial Court orders]. [27] In this

case, the Provincial Court FLA Proceeding and this Supreme Court proceeding were commenced on the same day, being November 30, 2021. The respondent seeks an order pursuant to s. 194(3) that this Court decline to hear this matter due to the concurrent proceedings in the Provincial Court, or, in the alternative, that this Court decline jurisdiction in this matter in its entirety save and except for any property and debt issues between the parties, and that the parties be directed to return to the Provincial Court for all issues regarding parenting, parenting responsibilities and support. [28] I have reviewed the authorities provided, including Song v. Zhang, 2016 BCSC 1438, Turner v. Turner, 2013 BCSC 1988, Byrne v. Byrne, 2015 BCSC 318, Kelly v. Sidhu, 2020 BCSC 393, and Power v. Spadafora, 2015 BCSC 1399. In this case, as in Turner, the Provincial Court has completed two lengthy contested hearings regarding A., one in the FLA proceeding and one in the CFCSA proceeding. Substantive orders have been made in each of the Provincial Court proceedings after hearing a significant amount of evidence. No substantive orders have been made to date in this proceeding. [29] The claimant submits that the Provincial Court has not "occupied the field" with respect to parenting orders, as the only orders made are a protection order which, unless extended, will expire on November 30, 2022, and

an interim supervision order under the CFCSA, which does not determine custody (see W.N. v. C.G., 2012 BCCA 149). He therefore argues that this Court can and should retain jurisdiction over parenting issues. [30] That argument does not properly consider the nature and effect of the existing Provincial Court orders, and the importance of judicial comity and avoidance of multiple proceedings: see Auxi v. Menton (1994), 2 B.C.L.R. (3d) 307. [31] There have already been a number of orders made in the Provincial Court relating to A. The November Protection Order, varied several times and as recently as August 18, 2022, places restrictions on the claimant's contact with A. Although the protection order is not a parenting order per se, it does affect the claimant's ability to exercise parenting time with A. in the sense that it places limits on how that parenting time may be exercised. The interim consent order made on August 18, 2022, also imposes certain conditions on the claimant's exercise of his parenting time. In my view, the Provincial Court has made orders regarding parenting time. [32] Section 194(6) of the FLA prohibits this Court from changing, suspending or terminating any of the Provincial Court orders if the Provincial Court has refused to do so, except on appeal. A lengthy hearing was held in the Provincial Court on the claimant's application to set aside or vary the

protection order, and the order was upheld with some minor variation. His appeal of that decision was dismissed. Accordingly, it is not open to this Court to vary the protection order, nor can this Court make any parenting orders that would conflict with the terms of the protection order. [33] The CFCSA proceeding is ongoing. In making the interim supervision order, the court has made a finding that there are reasonable grounds to support the Director's concerns about A. The Director would not have sought a parental capacity assessment of the claimant if there were no ongoing concerns. [34] Although the claimant says that the Director is not seeking removal of A. from the respondent's care, that argument ignores the legal implications of any potential breach of a supervision order. Section 36(1) of the CFCSA provides as follows: If an interim supervision order no longer protects the child 36 (1) A director must, without any further court order, remove a child who is the subject of an interim order under section 33.2 (2), 35 (2) (b) or (d) or subsection (3) of this section if either or both of the following apply: (a) the director has reasonable grounds to believe that the order no longer protects the child; (b) the director has reasonable grounds to believe that a person has not complied with a term or condition of the order and a director is required by that order to remove

the child if the person does not comply with that term or condition. [35] This is what occurred with the Older Children in 2018, when the respondent allowed the claimant to have contact with those children in contravention of the PIO. It is not farfetched to imagine that such a breach may occur again, with similar results. Accordingly, given the history of the CFCSA proceedings to date, I cannot accept the claimant's submission that the CFCSA proceeding may soon be at an end. [36] It is not uncommon for CFCSA and FLA proceedings to be heard together in the Provincial Court where the two proceedings involve the same parties, the same witnesses, and will focus primarily on the same factual issues. In this case, the respondent alleges a history of family violence on the part of the claimant, which has been the cause of some of the Director's concerns. The claimant also alleges that the respondent has perpetrated family violence against him. The allegations of family violence are inextricably linked with the parenting issues and have been the subject of lengthy hearings in the Provincial Court. There is a very real possibility that the FLA and CFCSA proceedings may be heard together in the Provincial Court, which may save time and expense and avoid duplicitous proceedings. [37] Given the orders made in the Provincial Court, I am satisfied that s. 194(2) of the FLA applies and that

this Court no longer has jurisdiction to deal with the parenting issues between these parties. [38] Even if I am wrong on this issue and this Court does have jurisdiction, I decline to exercise it, pursuant to s. 194(3)(a) of the FLA. [39] In Auxi, Master Bishop said: Duplicity or multiplicity of actions in the various courts in British Columbia are not to be encouraged. It is an improper practice and probably an abuse of process to bring an action claiming relief under the Family Relations Act in this Court in circumstances in which identical or similar relief is claimed in Provincial Court. Some exceptions to this rule include instances in which: 1. there is a substantial time delay in the Provincial Court application and/order and the subsequent application in this Court; 2. the application has been brought in Provincial Court but no decision has been made nor hearing scheduled, or if scheduled, it is unlikely that the hearing will be or could be held within a reasonable time and it is in the best interest of the children or otherwise necessary to determine the issues more expediently; 3. the children's physical or emotional wellbeing are at risk or it is otherwise in their best interest to have the matter heard immediately; 4. additional relief is claimed in this Court over which the Provincial Court lacks jurisdiction. [40] With respect to the exceptions noted above, there

was no delay in this case between the Provincial Court application and the commencement of this action. Decisions have already been made in the Provincial Court following lengthy contested hearings. The claimant is unsatisfied with those decisions, but the remedy for that is to appeal, as he has done. The claimant could have applied in the Provincial Court for parenting orders, but advised in his oral submissions that he has not done so. That delay is of his doing. The orders made in Provincial Court are specifically to ensure the wellbeing of A. [41] The only issue that is not within the jurisdiction of the Provincial Court are the claims for division of family property and debt. The respondent submits that the parties are not spouses for the purpose of Parts 5 and 6 of the FLA as they did not live together in a marriage-like relationship for a continuous period of at least two years, and therefore the FLA does not apply to their property issues. That may be determinative of the property and debt claims under the FLA, but is an issue to be addressed another day. The property issues, such as they are, can easily be severed from the parenting and child support issues, and ought not occupy 20 days of trial time. [42] Finally, the respondent argues that allowing this matter to proceed in the Provincial Court would facilitate greater access to justice. She has been self‑represented

throughout this proceeding until the appearance before me. She has been on maternity leave for the duration of this proceeding, parenting three children including an infant, living approximately three hours drive from this Court, and attempting to navigate this proceeding in addition to the FLA and CFCSA matters in the Provincial Court. The claimant has filed numerous applications in this Court. A review of the court summary sheets indicates 16 appearances in this court proceeding to date. That does not include appeals or any of the appearances in Provincial Court. [43] Given the litigation that has occurred in A.'s infancy, it is quite likely that these parties will require further court intervention periodically throughout A.'s life, even after the current applications are resolved. Both parties have limited financial resources. Although the respondent is currently represented by counsel, it is likely that she will be self-represented again in the future. Compared to the Provincial Court, the more complex processes and costs inherent in a Supreme Court proceeding are a significant barrier to many self-represented litigants. [44] The object of the Supreme Court Family Rules provides helpful guidance in all family law cases before this court. Rule 1-3(1) states: (1) The object of these Supreme Court Family Rules is to (a) help parties resolve the legal issues in a family law

case fairly and in a way that will (i) take into account the impact that the conduct of the family law case may have on a child, and (ii) minimize conflict and promote cooperation between the parties, and (b) secure the just, speedy and inexpensive determination of every family law case on its merits. [45] Having considered judicial comity, the nature of the proceedings to date and the relief sought in this action, I am satisfied that securing the just, speedy and inexpensive determination of this family law case on its merits requires that this matter be heard in the Provincial Court with respect to all relief over which that court has jurisdiction. [46] The trial of this matter has been set for longer than it now needs to be, and on a date that the respondent's counsel is unavailable. It will need to be rescheduled with a time estimate more appropriate to the limited issues remaining. I leave it to the parties to determine an appropriate time estimate and to contact Supreme Court Scheduling to secure a new trial date that is mutually available, along with a new date for the required trial management conference. Conclusion [47] In summary, I am exercising my discretion pursuant to s. 194(3)(a) of the FLA to decline jurisdiction over all issues relating to parenting and child support, and make the following orders: a) The Supreme Court declines jurisdiction in this proceeding

in its entirety, save and except for any claims for division of property and/or debt between the parties. All issues regarding guardianship, parental responsibilities, parenting time and child support shall be dealt with in the Provincial Court. b) The trial of this matter unilaterally scheduled by the claimant to commence on January 3, 2023 for 20 days is adjourned generally. c) The Trial Management Conference scheduled for October 27, 2022 is adjourned generally. d) The claimant shall not re-set the trial of this matter without either (i) the written consent of the respondent or her counsel or (ii) leave of the court. e) The claimant's Notice of Application filed on August 8, 2022 is dismissed. f) The claimant's Notice of Application filed on September 12, 2022 is dismissed, save and except for the Orders Sought under paras. 3 and 4 which are adjourned generally. g) Paragraphs 3, 4 and 7 of the respondent's Notice of Application filed on September 16, 2022 are adjourned generally. h) The respondent is entitled to her costs of this application in any event of the cause. i) This order shall be drafted by counsel for the respondent, and the signature of the claimant as to the form of the order is dispensed with. "Master Hughes"