Saturday, September 8, 2018

Ayn Traylor Sadberry, British Columbia Court of Appeal rules that, since separated mother and children have become habitual residents of Province ...

Ayn Traylor Sadberry, British Columbia Court of Appeal rules that, since separated mother and children have become habitual residents of Province, chambers judge erred in declining to exercise its jurisdiction in favor of father’s prior suit in state court of Washington which had already addressed several issues of custody and parentage while family were living there

A judge of the Superior Court of the State of Washington entered an order in December 2003 entitled: “Varying the Order Determining Parentage; the Order of Child Support; and the Parenting Plan Order” with respect to the twin sons of Ms. DPC and Mr. RBL. The boys are now almost five years old. They were born in Spokane, Washington and had been living there with DPC in southeastern Washington. Their father was residing in Spokane and carrying out his rights of access to them from there.

In May 2002, however, shortly after RBL had served her with additional Superior Court documents, DPC took the twins back to Victoria, British Columbia to live where she had grown up. RBL claims that the move took place without his knowledge or consent.

The following month, DPC moved unsuccessfully to have the Washington court decline jurisdiction. Instead, that Court issued a temporary Parenting Plan Order in August. Later that year, a so-called guardian ad litem or “GAL” Report was prepared. In December 2003, the Washington Court issued its final Parenting Plan Order (PPO), detailing the dates and times of RBL’s access. According to DPC’s affidavit, the parties generally complied with this Plan for the six months ending in July 2004.

At that point, DPC had RBL served with a petition out of the Supreme Court of British Columbia. DPC’s attached affidavit brought up various new and unresolved issues. These included allegations of sexual activity between the twins and a slightly older boy, who is the son of a woman with whom RBL is now living. The affidavit also averred that, since early 2004, the twins were manifesting severe stress reactions. Finally, the petition called for a thorough investigation of the children’s statements and physical symptoms. RBL vigorously contested these claims.

The threshold questions for the B.C. judge was whether his Court had jurisdiction and, if so, whether he should exercise it. He found first that the children were now habitually residing in British Columbia and that this accorded jurisdiction to the B.C. court. Neither side challenged this ruling . Nor did either party object to the court’s statement that, under Canadian law, the governing principle is the children’s best interest.

The Chambers judge then considered whether the Court should exercise, or decline to exercise, its jurisdiction. He took into account the history of the parties; the connection of the parties with the jurisdiction in question; the availability of witnesses who may be of assistance to either party, where they are located and if they have to travel, whether it is a matter of great significance, along with the factors of time and expense. In a case of this kind, one element is which jurisdiction has the greater number of concerned family members. Finally, the court should weigh the general links of the parties to the present forum.

The Chambers judge decided that, since the Washington GAL Report was relatively recent and had resulted from an “extensive investigation”, and since the newer report did “not create a problem in terms of access to the respondent”, the Washington court should retain jurisdiction. DPC appealed.

Before the B.C. Court of Appeal, DPC argued, citing B.C.’s Family Relations Act Section 44 (FRA), that, if a child habitually resides in the Province, the court must take jurisdiction. The Court unanimously allows the appeal.

“The fact remains that even where the court has jurisdiction, it may, as [FRA] Section 46 provides, decline to exercise it where ‘it is more appropriate for jurisdiction to be exercised outside B.C.’. The question for us is whether the Chambers judge erred in concluding that it was more appropriate in this case.” [¶ 7]

“..., I am of the view that he did err in proceeding on the basis that an extensive investigation had been held in Washington when in fact the ‘new matters’ were not even hinted at, at that time; and in concluding that the question of access would more appropriately be dealt with in future by the Washington court. In doing so he appears, with respect, to have considered some of the merits of the case when the only question was jurisdiction.”

“Greater weight should have been given to the fact that the children, their mother and her extended family are in British Columbia, the children’s health care professionals are here, and the new matters were not resolved by the psychologist’s report that was prepared at the mother’s behest. Any custody and access report must, ... be based on interviews with both parents (and of course the children) and provide the Court with a complete picture of how the children’s emotional health has, or has not, been affected by the existing custody and access arrangements and, more importantly, what custody and access arrangements are in their best interests here and now.” [¶ 8]

“If the arrangements ordered by the Washington court turn out to be suitable after the changes in circumstances have been fully considered, then I am sure a British Columbia court will so rule. However, the matters that have been raised do require investigation, ... for the purpose of ensuring that the children’s best interests are being met. The children now reside here, and, subject to the ultimate court order, will continue to reside here.”

“In my view, it is not appropriate that the Washington Court retain jurisdiction and, conversely, it is appropriate that British Columbia exercise its jurisdiction and responsibility to the children. For these reasons, I would set aside the order of the Chambers judge, allow the appeal, and order that the petition be heard in the Supreme Court of British Columbia.” [¶ 9-10]

Citation: D.P.C. v. R.B.L., [2005] B.C.J. No. 2250; 2005 B.C.C.A. 497 (Sept. 27).

*** Ayn Traylor-Sadberry is a domestic relations, probate & criminal attorney in Birmingham, Alabama. Ms. Traylor-Sadberry received her B.A. degree in 1966 from the University of Oklahoma, her M.A. in 1973 from the University of Oklahoma, and her Juris Doctor from Howard University in 1981. She was admitted as an attorney in Alabama in 1989. Website: