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: www.TraylorSadberry.com
