Unedited **

Indexed as:
Anderson v. Sullivan

Between
Diane Helen Anderson formerly known as Diane Helen Sullivan,
appellant, and
Kevin Sullivan, respondent

[1996] B.C.J. No. 905
Vancouver Registry No. CA021704

British Columbia Court of Appeal
Vancouver, British Columbia
McEachern C.J.B.C., Proudfoot and Rowles JJ.A.

Oral judgment: April 10, 1996.
(19 pp.)

   Family law — Custody and access — Jurisdiction — Founded on residence of child — Where custody application pending in another jurisdiction.

   This was an appeal by a mother regarding jurisdiction in a child custody dispute.  The parents were married in Ontario in 1986 and the child was born there in 1987. The parents separated in 1989 and were divorced in 1992.  Both parties remarried. In February 1991 the Ontario court made a consent order that granted the mother sole custody.  The mother was also ordered not to remove the child from Ontario.  In 1992 the mother's new husband accepted a well-paying position in British Columbia. The mother, however, continued to live in Ontario with the child. In May 1992 the mother applied to vary the earlier order to enable her to move to British Columbia.  In August 1992 the father filed a cross-application for custody or for an order to vary access.  A psychological assessment recommended that the child be permitted to relocate with the mother but it also recommended an access schedule for the father.  The mother moved to British Columbia but returned when an Ontario court granted the father interim custody and ordered the mother to pay $5,000 in costs.  Settlement negotiations occurred and they resulted in a variance of the 1991 order. The mother was ordered to provide the father with generous access which required the mother to return the child to Ontario up to six times a year at her expense.  The father consented to filing the agreement in British Columbia for enforcement purposes.  The child did not like to have to fly to Toronto alone so frequently.  The mother applied in British Columbia to vary the Ontario order regarding access and maintenance.  The father commenced proceedings in Ontario to obtain custody of the child.  The Ontario court ordered a trial for May 14, 1996. Regarding the mother's British Columbia application, the chambers judge declined jurisdiction since her lawyer did not properly register the Ontario order and since the appropriate forum was in Ontario.

   HELD:  Appeal allowed.  The matter was remitted back to the chambers judge for a proper determination.  The chambers judge made errors that were so flawed that they could not be remedied. The evidence was overwhelming that British Columbia was the most convenient and appropriate place in which to determine the child's best interests.  The child lived in the province lawfully with her mother and step-father for two years with the consent of her father.  Her home, school, friends and doctors were in this province.  Since the child's full-time residence was in British Columbia, this matter had to be decided there.  Under section 40.2 of the Family Relations Act a proper finding of appropriateness for declining jurisdiction was essential and this was not considered by the chambers judge.

Statutes, Regulations and Rules Cited:

   Family Relations Act, R.S.B.C. 1979, s. 40.2.

Counsel:

       The judgment of the Court was delivered by McEachern C.J.B.C.

¶ 1      McEACHERN C.J.B.C. (orally):— On a Pre-Hearing Conference last week, I was asked to order this appeal be heard on an expedited basis because it involves questions about a nine year old child, in fact nine years of age today, and if not heard on an expedited basis, this appeal could not be heard until next Fall, by which time it would be academic because of similar proceedings are now underway in the Province of Ontario as I will mention in a moment.  Thus, as our Court is not regularly sitting this week, I obtained the agreement of my colleagues to hear it with me today because we think the matter is one of very substantial importance to family law practice.

¶ 2      We are indebted to Mr. Wilson for responding to my decision to hear this matter today and we are grateful that he was able to assist us to a very considerable extent.

The Facts

¶ 3      The appeal involves a child whom I shall call Kate.  Her parents were married in Ontario in 1986 and Kate was born there on April 10, 1987.  The parents separated February, 1989, and they were divorced in undefended proceedings in 1992.  The Divorce Decrees only dissolve the marriage.  Both parents have since remarried.  The mother, the Appellant herein, remarried in 1993 and the father, the Respondent, remarried in 1995.  It appears that all the parties or their present spouses are quite well-to-do financially.

¶ 4      In February, 1991, when the parties were still living in Ontario, Madam Justice Feldman on the Ontario Court of Justice (General Division) made a consent order that provided for:

¶ 5      In 1992, the gentleman to whom the mother is now married was offered, and he accepted, a well paid position in Surrey, British Columbia.  The mother, however, continued to live with Kate, in Ontario, even after her marriage.  In May, 1992, she applied to the Ontario Court of Justice (General Division), to vary the order of Madam Justice Feldman and to permit her to move with Kate to this province following her marriage that same month.  In August, the mother resigned her well paid position and listed her house for sale.  That month, however, the father filed a cross application for custody or for an order varying access.

¶ 6      In October, 1993, psychologist, Dr. Butkowsky, made recommendations for the settlement of this dispute that contemplated the removal of Kate to British Columbia. Specifically, he recommended, that Kate continue to live with her mother, that decisions regarding her be shared by the parents, and that Kate be allowed to relocate, if necessary, with her mother in British Columbia subject to a schedule of access for the father that included:

¶ 7      In November, 1993, the mother, after several months separation from her husband, moved precipitously with Kate to this Province.  An Order was immediately made in Ontario granting interim custody of the father, and an order for costs against the mother in the sum of $5,000.  The mother immediately responded appropriately to this order and returned with Kate to Ontario.

¶ 8      Settlement discussions followed and on January 6, 1994, Mr. Justice Walsh of the Ontario Court of Justice (General Division) pursuant to Minutes of Settlement, varied the terms of the order of Feldman J. and expressly authorized the mother to bring Kate back to this province with "liberal and generous" specified access which required Kate to return to Toronto up to six times a year at the mother's expense. The mother was also required to pay the father $1,300 annually as a contribution to the father's costs of access in this province.  Counsel point out that the Minutes of Settlement recognized Ontario as the proper jurisdiction for the continuing regulation of these matters but that provision was not incorporated into the order of Walsh, J.   The father at the same time signed a consent which provided:

¶ 9      Walsh J. also ordered that the mother register the order he had just made in Supreme Court of British Columbia which she instructed her former solicitor to do although considerable procedural difficulties was encountered in that connection as will be mentioned in a moment.

¶ 10      Walsh J. also ordered that the mother retain for Kate a psychological expert recommended by Dr. Butkowsky.  The mother retained such an expert, although not one so recommended but nothing seems to turn on that.  The mother went further and retained another independent psychologist to provide a critique, which was favourable, of the report of the first psychologist.  I have read both reports and they seem to be professionally prepared but I prefer, of course, not to express any comment on the access she recommends.  It was a further provision of the order of Walsh J. that the terms of his order be reviewed in two years time.  That order contemplated that this review would be conducted by Dr. Butkowsky in Toronto.

¶ 11      In the period prior to this review, it is alleged by the mother, and confirmed by the reports she received, that Kate was beginning to resent having to go to Toronto so often. I quote from some parts of the Report:

       Kate relayed that she feels "sick" when she is going to the airport in Vancouver, "like throwing up".  She feels the same way on the plane but gets better at the end.  She never "threw up", however.  Kate says that she does not like "everything" about the plane.  She finds flying "boring".  Her mother is always taking her to the airport.  Kate stated that her mother asks her to go and "have fun time".  Neither Kate nor her mother cry at the airport.  She said that she did not know how her father felt at the airport.  She added that she is sad because she leaves her mother behind in Vancouver when she flies to Toronto.  She has no problems flying to vacation destinations, however, as she never flies alone.

¶ 12      In January, 1996, the mother applied in our Supreme Court to vary the order of Walsh J. or to change the access and maintenance, and also for interim relief so that Kate would not be required to travel during the 1996 School Spring Break or so often thereafter.  She also asked for an Family Relations Act s. 15 report.  In other words, the mother was seeking to supercede Ontario jurisdiction in these matters, she and Kate then having been permanent residents in this province with the father's consent for over two years.

¶ 13      This has led to an enormous, wholly unseemly legal tangle with motions and cross motions and other legal posturing that did nothing for Kate and little credit to the participants.  There were innumerable motions and arguments about consent registration of documents and differences about Praecipes and Petitions, interminable affidavits and cross-examinations and other matters detailed by the chambers judge that have little or no importance, and should not have been permitted to prevent the hearing and expeditious resolution of this simple matter on the merits.  When I say simple of course I do not mean easy.  Instead, I mean straight forward in the sense that while it a difficult matter of judgment, the facts were fairly straight forward and fall within quite a narrow compass.  A question also arose as to whether the father attorned to the jurisdiction of this Court by filing and taking part in the proceedings to the extent that he did but I do not think it is necessary to express any conclusion on that legal question.

¶ 14      It seems to me with respect that it does not require much legal or human understanding or common sense to recognize that there is a problem with Kate's access and that it needs to be fixed.  What seems to have caught the critical attention of the chambers judge was the difficulties the mother's solicitors seem to have getting the orders of the Ontario Courts registered in British Columbia but I see no evidence whatsoever of any intent on the part of the mother to frustrate that purpose having regard to the fact that the father consented to such registration and the mother gave her solicitors instructions to undertake such registrations.  It also appears that such registration was in fact accomplished as there is an order of a Master, presently under appeal, confirming that registration.

¶ 15      In the meantime, on March 4, 1996 the father filed a motion in Ontario seeking custody of Kate, an access report, maintenance variation; security for costs and other relief.  This application was adjourned pending the hearing of an application by the mother to stay proceedings in Ontario.

¶ 16      On March 8, 1996, the father filed a motion in this province seeking a declaration that the Supreme Court of British Columbia has no jurisdiction over him, and that the British Columbia Court should decline jurisdiction.  On the eventual returnable date of the motion, which was also the date fixed for the hearing of the mother's original application for a variation of the order of Walsh J., which date was March 11, 1996, the mothers counsel made a preliminary objection on jurisdiction but counsel for the father (who was not counsel on the appeal) advised the court that he would not proceed with his application challenging the jurisdiction of the Supreme Court of British Columbia.  The hearing went ahead on the merits and after more than a day of argument, the judge gave extensive oral reasons declining jurisdiction over all applications pertaining to custody, access or maintenance of Kate.  This is the order now under appeal.  I shall discuss it more fully in a moment.  In the meantime, the applications continued unabated.

¶ 17      The mother's counsel sought to have the order of the chambers judge settled by referring to the fact that the jurisdictional application had been dismissed as abandoned, but the judge apparently ruled that it had merely been adjourned.  However, his order on the settlement proceedings was amended by adding a qualifying phrase "unless the Ontario Courts should decline jurisdiction."  At the same time as the application to settle the order was underway by teleconference in British Columbia, Walsh J. in Toronto was hearing the mother's stay application.  That learned judge had the clerk's notes of the chambers judge's ruling, but not his reasons or the addition he made at the settlement application.

¶ 18      Walsh J. denied the mother's application for a stay of the Ontario proceedings because the court here had declined jurisdiction.  In these circumstances, he considered he had at least parens patriae jurisdiction.

¶ 19      Subsequently, Walsh J. was asked to change his decision on the basis that the addition to the British Columbia order gave him an opportunity to send the case back to British Columbia where it is now conceded there clearly was jurisdiction, but he declined to do that.  As a result, the full panoply of Ontario proceedings are now underway.  The Endorsement of Walsh J. provides as follows:

The Reasons for Judgment of the Chambers Judge

¶ 20      First, the Chambers judge ruled that there was no reason why Kate should not travel to Toronto for the then pending Spring Break as provided for in the order of Walsh J.

¶ 21      He then referred to the report of the psychologist previously mentioned and urged the parties to resolve their differences in Kate's best interests.

¶ 22      Next, the judge reviewed the facts in considerable detail even though, as I have already said, I do not understand how the tangle that arose had much, if any, relevance to the matters that had to be decided.

¶ 23      The judge then reviewed the respective positions of the mother and the father.  He found considerable fault on the part of the mother, both with respect to her original movement with Kate to British Columbia, and with the failure of her counsel properly to obtain registration of the orders of Feldman and Walsh JJ. in this province.

¶ 24      The Chambers judge concluded that the mother's process was so completely flawed that, in his view, there was no order properly registered in this province that could be varied, and that proceedings ex parte to perfect registration of the Ontario orders "should not be condoned or sanctioned by curative relief."  The chambers judge accordingly denied all applications by the mother "for curative relief or procedural irregularity."  I pause to observe that, as there was no issue between the parties on registration, and the Master had in fact ordered registration, that this question seems to be one which crept unfortunately into these proceedings and has assumed importance far beyond what it deserves.

¶ 25      After that the judge turned to the substantive issue of jurisdiction which he said would arise were he inclined to grant procedural relief.

¶ 26      After reminding himself that Kate's interests were paramount, the judge observed that the father's consent to have the Ontario orders registered was for the purpose of enforcement, and not as a recognition of British Columbia jurisdiction to deal with these matters.  Further, he observed that, although now permanently resident here so that jurisdiction could be invoked, Kate did not need that protection.   With respect I do not understand that sentence at all.  Children always need protection and as I have said, I do not understand the importance of the statement I have just mentioned.  The trial judge found that Kate has a loving relationship with both her parents and while she is not happy about travelling as much as she is required to do, that did not determine that British Columbia is the most appropriate jurisdiction to deal with this issue.  In that respect I agree that the child's preference is only one factor but I must say I think it is a very important factor in the context of this case.

¶ 27      The judge then concluded that the mother has brought these proceedings to gain a juridical advantage through economics and distance relating to the timing of the two year review and that the attempted elimination of Dr. Butkowsky which the trial judge said was equally suspicious.

¶ 28      Lastly, the judge expressed concern about a statement made by an independent consultant who reviewed the earlier mentioned psychological assessment.  This statement was that the mother was not seeking to suspend or restrain the father's access.  The judge found this inconsistent with the mother's proceedings but I must say with respect that I do not find it inconsistent at all.

¶ 29      The trial judge concluded:

¶ 30      The judge also declined jurisdiction on the maintenance application, for reasons he said were independent of the access issues.  He held that the authority of Swain v. Gibbs (1984), 39 R.F.L. (2d) 180 (Man Q.B.) need not be applied because any order made here would have to be confirmed in Ontario anyway.  Moreover, he held that s.70.11(1) of the Family Relations Act is only permissive.  I do not think it is necessary to offer any comment on that passage.

¶ 31      That brings me to the decision on this appeal. In my judgment there are several grounds upon which the judgment below cannot be sustained.

¶ 32      First it is apparent that the trial judge erred in the conclusion he reached that the proceedings before him were so fatally flawed that they could not be remedied.  In my view, there was no procedural flaw that could not easily have been corrected and it is most unfortunate that the case seems to have gone off the rails to the extent it did, so much so that it appears to me that these procedural matters assumed an untoward and overwhelming importance.

¶ 33      Second, however, assuming the trial judge was able to put these matters out of his mind, it is apparent that when he turned to the merits of the application he fell into further serious error.  In my view, the evidence was overwhelming that British Columbia was the most convenient and appropriate place in which to determine what is best for the child.  She has lived here now lawfully with her mother and step-father and with the consent of her own father, for two years or so.  Her home is here.  Her school is here.  Her friends are here.  Her current psychological consultant is here.  Her medical doctor is here and her activities are here. She is clearly a permanent full time resident of this community.

¶ 34      Further, I do not believe it was possible for the judge acting judicially to have reached the conclusion that it was appropriate to resolve these access questions in Ontario. British Columbia obviously had jurisdiction as is now conceded by learned counsel for the father but even if that were possible, I cannot avoid concluding that the chambers allowed himself to be diverted from a proper consideration of what was best for the child by the extreme views he reached about the conduct of the mother.  In my view these extraneous considerations, as demonstrated throughout the reasons for judgment but most particularly by sub-paragraphs two to eight of paragraph 24 and 25, and 26 of the reasons for judgment require us to depart from the usual rule regarding the deference owed to discretionary decisions made by judges at first instance.  In view of the foregoing it cannot be said that there has been a proper decision on the question of the appropriateness of having this question of access dealt with in Ontario.

¶ 35      Under s. 40.2 a proper finding of appropriateness for declining jurisdiction is essential.  It does not appear that the chambers judge gave proper considerations to Kate's status in this province in relation to her limited connection with Ontario to reach a proper decision on that question.

¶ 36      I would allow the appeal and set aside the order of the chambers judge made March 15, 1996, and I would remit the entire matter back to the Supreme Court of British Columbia for a proper determination of all of these issues.

¶ 37      It is clearly in the best interests of Kate and indeed of all parties, that this matter be resolved expeditiously.  This procedural tangle was not Kate's fault and the time lost should if possible be made up to her by a very early hearing on the merits.  I commend to counsel that they inform the trial co-ordinators and if necessary the Chief Justice of the Supreme Court of British Columbia of the views that I have just expressed about the need for an early determination of these issues.

McEACHERN C.J.B.C.

¶ 38      ROWLES J.A.:— I agree.

¶ 39      PROUDFOOT J.A.:— I agree.

¶ 40      McEACHERN C.J.B.C.:— The appeal is allowed and the matter is remitted as I have just described.

¶ 41      Costs follow the event.

¶ 42      I think it is healthy that these parties should understand that there are consequences to these proceedings which will have to be recognized and taken into account.  It probably does little good for us to say it, other judges have said it, but these parties should resolve this matter.  They should know by now how much harm they are doing to their daughter and the matter should be resolved.

McEACHERN C.J.B.C.

QL Update:  960430

cp/d/cmi/DRS/DRS/DRS

McEachern C.J.B.C., Proudfoot and Rowles JJ.A.