J.Z. v. L.H.C.

J.Z. v. L.H.C.

The protection order was set aside because the statutory preconditions of s.183 were not met: the respondent and the child were not 'family members' as defined in the Act and the court therefore lacked jurisdiction to make that order; the non-removal order was set aside because the evidentiary record did not demonstrate a real risk that the respondent would remove the child and not return her to British Columbia; costs of the application were awarded to the respondent but special costs were refused to avoid further acrimony detrimental to the child's interests.

Citation
2015 BCSC 97
Parties
Claimant: J.Z.; Respondent: L.H.C.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
26 January 2015
Procedural Posture
Family Law Application Under the Family Law Act / Application to Set Aside Without Notice Protection and Non Removal Orders (hearing January 12, 2015; Reasons January 26, 2015)
Outcome
Protection order set aside for lack of jurisdiction; non-removal order set aside for lack of evidentiary basis; respondent awarded costs of the application but not special costs.
Legal Topics
Protection Order, Non Removal Order, Without Notice Application, Disclosure/non Disclosure, Costs
Source Language
English
Family Law Child Welfare Procedural Law Protection Order Non Removal Order Without Notice Application Disclosure/non Disclosure Costs

Case Brief

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Parties

J.Z.

Claimant

L.H.C.

Respondent

Procedural Posture

Family Law Application Under the Family Law Act / Application to Set Aside Without Notice Protection and Non Removal Orders (hearing January 12, 2015; Reasons January 26, 2015)

Legal Issues

  1. 1 Whether the court had jurisdiction under s.183 to grant a protection order where the alleged perpetrator was not a 'family member' as defined in the Act
  2. 2 Whether a non-removal order under s.64 was justified on the evidentiary record (risk that the child would be removed and not returned)
  3. 3 Whether special costs were warranted for alleged material non-disclosure on a without-notice application

Ratio Decidendi

The protection order was set aside because the statutory preconditions of s.183 were not met: the respondent and the child were not 'family members' as defined in the Act and the court therefore lacked jurisdiction to make that order; the non-removal order was set aside because the evidentiary record did not demonstrate a real risk that the respondent would remove the child and not return her to British Columbia; costs of the application were awarded to the respondent but special costs were refused to avoid further acrimony detrimental to the child's interests.

Court Disposition

Protection order set aside for lack of jurisdiction; non-removal order set aside for lack of evidentiary basis; respondent awarded costs of the application but not special costs.

Orders

  • Protection order dated December 18, 2014 set aside
  • Non-removal order dated December 18, 2014 set aside