Canadian court order about jurisdiction

Introduction

[1] The respondent [his name keeps in secret] seeks a declaration that this Court does not have jurisdiction over him for purposes of a family claim made against him.

[2] In the alternative, he requests that this Court stay the family claim made against him on the basis that this Court declines jurisdiction in the matter.

[3] The respondent also seeks to set aside the decision of Master [his name keeps in secret] made on September 2016, and to dismiss the Notice of Family Claim. However, I propose that I will not deal with Master’s decision (the Order) except in the following way: should I find that this Court either has no jurisdiction or declines to exercise jurisdiction, the Order will fall, along with the Notice of Family Claim that will also fall.

[4] I find it necessary, however, to describe the Order and its effects, and whether the decision of the Master ought to have been granted according to the law of British Columbia.

[5] If I find jurisdiction or decide this Court should exercise jurisdiction, I will stay the Order in its entirety pending a trial on the question of whether the claimant should be found to be a spouse with its consequential effects of an award of spousal maintenance. Should I find jurisdiction or decide I should exercise jurisdiction, with the stay of the Order, I would, in any event, also stay any execution efforts made by the Family Maintenance Enforcement Program (the “FMEP”) to collect spousal support from the respondent pending the outcome of a trial and direct that it remove the “stolen/lost” flag from the respondent’s passport.

Facts

[6] The facts in this case are very much controverted but the circumstances of the conception of the child are only tangentially relevant to the court’s decision on jurisdiction.

[7] I have decided that I cannot take at face value the suppositions and conjecture of the claimant that relate to the respondent’s ties to British Columbia. Therefore, I am forced to winnow from the voluminous materials provided, those facts that I can find are reliable.

[8] The claimant is a Russian national. The respondent is a Canadian who works in international oil services and has not resided in Canada since 2009 or in BC since 2007.

[9] Both parties were working in Dubai when their child was conceived.

[10] The parties had a relationship of four to six months while working in Dubai that resulted in the birth of a male child on May 2016, in Moscow.

[11] As a result of a DNA test done at a German lab, an independent agency satisfactory to both parties, the baby was determined to be the biological child of the respondent.

The Proceedings to Date

[12] The claimant filed a Notice of Family Claim (the “NOFC”) on January 2016. She obtained an order for substitutional service on May 2016.

[13] The claimant served the respondent with the NOFC by email on August 2016.

[14] The respondent did not appear and did not file a jurisdictional response at that time.

[15] The claimant proceeded to apply for an order entitling her to interim spousal support in the context of her NOFC before Master. The claimant was working in Dubai at the time she made this application, but she did not disclose this to Master.

[16] The Claimant [her name keeps in secret] received a declaration of her entitlement to spousal support (the Order) on September 2016. The Order was an interim order only and awarded spousal support based on a salary amount derived from a Google search of similar jobs to that performed by the respondent.

[17] The Master declared her jurisdiction under ss. 3 and 6 of the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003 c. 28. (llCJPTA”). It is clear that the only basis on which she founds that assumption is that the respondent is a Canadian citizen and owns a piece of property in British Columbia.

[18] The Master notes as well that the claimant would not be able to make a claim for spousal support anywhere else and more particularly, not in the jurisdiction of Dubai where the claimant and the respondent were both working at the time of the application.

[19] The Order provides that the respondent may move to vary the Order on 10 days’ notice to the claimant.

[20] The respondent filed a jurisdictional response on December 2016. He was not out of time to do so and now has a right pursuant to Rule 18-2 (1) of the British Columbia Supreme Court Family Rules to apply to dismiss or stay the family law case. However, by delaying his application to contest jurisdiction as he did, the claimant was within her rights to make the application she did for spousal support in the intervening period: Borrero v. Rico, 2017 BCSC 84.

[21 ] The respondent did not comply with the Order or apply to set it aside until May 31, 2018, and was thus vulnerable to the actions of the FMEP that the claimant put into motion. The result was that the FMEP first placed a lien on his BC property, and then flagged his passport as lost or stolen meaning that he was stopped at the Frankfurt Airport. Since he flies internationally for his job, this is a substantial problem for him.

[22] McNaughton J. ordered that the lien on his property be removed.

The Order

[23] Regardless of my decision in respect of the jurisdiction issue, I order that the FMEP cease and desist from execution efforts against the respondent including seizing or otherwise interfering with his passport until further order of this Court.

[24] I do so under the authority of Rule 18-2(4)(d) of the Supreme Court Family Rules, which allows me to discharge any order previously made in a family law case where a party brings an application seeking to dismiss or stay the family law case on the ground that the court does not have jurisdiction over that party in respect of the claim made against that party in the family law case.

[25] I make this order respecting the execution efforts of the FMEP because the Order was made on little evidence and as Esson J. has stated, making an interim order for spousal support in circumstances where the paying party may well have an argument that the applicant could not be considered to be a spouse, as defined in s. 1, could result in payments made that could never be recovered should the definition of spouse not be met once full answer and defense are made: Kolia v. Kolia, [1981] 5 W.W.R. 540 (B.C.S.C.), applied in Kyung v. Bowman, 35 R.F.L. (4th) 48 (B.C.S.C.), and Oliver v. Cowie, 2000 BCSC 934.

[26] There is no prima facie right to spousal support until such time as the necessary elements of the status of spouse have been proved: Kolia.

[27] I will refer to this point again in my discussion of s. 6 of the CJPTA.

[28] I do not propose to go through all the facts provided to Master except to say that certain of them are inaccurate and incomplete. Where those facts would likely have resulted in a different decision, I will set those out.

[29] The Master accepted counsel’s assertion that the claimant could not obtain any relief in Dubai. As well, it is apparent to me that at the time of the filing of the NOFC, in January 2016, there was not yet any child and there was no clear evidence that would have supported a claim for spousal support based on a “marriage-like” relationship.

[30] The claimant did plead that she was pregnant with the respondent’s child but there was no proof of paternity offered at the time she commenced proceedings or at the application before Master and thus the Master’s order was based on the claimant’s bare averment. It was not until the DNA results arrived on January 2018 that the respondent learned that the baby was his biological child.

[31 ] The claimant’s subsequent application for spousal support, brought after the birth of her child, is based on s. 3(1 )(b) of the FLA:

3 (1) A person is a spouse for the purposes of this Act if the person

(a) . . .

(b) has lived with another person in a marriage-like relationship, and

(ii) . . . has a child with the other person.

[32] On the evidence before me, despite the birth of the respondent’s child, it is apparent that the claimant would not qualify as a spouse for the following reasons:

• The relationship was of very short duration.

• There was no financial integration between the claimant and the respondent and no indication that the claimant had foregone her economic independence to rely on the respondent in accordance with a mutual arrangement.

• They did not represent themselves in public as a couple.

• There is no evidence that any friends recognized them as a couple.

• Other than an overnight trip to a vacation site from which they returned the next morning and a few weekend overnight stays at the respondent’s residence, they maintained separate living quarters during the relationship.

• There is no evidence that they shared any property.

• Other than a brief discussion about marriage when the respondent initially learned of the claimant’s pregnancy, there were no plans to marry.

• There is no evidence of anything more than a brief relationship with some instances of intimacy but without any indication of any plans to share a future together.

[33] Some of those objective criteria are taken from Gostlin v. Kergin (1986), 3 B.C.L.R. (2d) 264 (C.A.) per Lambert J.A., a case that concerned a claim for support under the Family Relations Act, R.S.B.C. 1979, c. 121, repealed, which at the time defined “spouse” as including:

... a man or woman not married to each other, who lived together as husband and wife for a period of not less than 2 years, where an application under this Act is made by one of them against the other not more than one year after the date they ceased living together as husband and wife.

[34] Lambert J.A., for the court, wrote as follows:

. . . more objective indicators may show the way. Did the couple refer to themselves, when talking to their friends, as husband and wife, or as spouses, or in some equivalent way that recognized a long-term commitment? Did they share the legal rights to their living accommodation?

Did they share their property? Did they share their finances and their bank accounts? Did they share their property? Did they share their vacations? In short, did they share their lives? And, perhaps most important of all, did one of them surrender financial independence and become economically dependent on the other, in accordance with a mutual arrangement?

[35] I am satisfied that the claimant would not have been found to be a spouse and awarded interim spousal support had all of the relevant facts and law been placed before the Master.

[36] Because the claimant made her claim for spousal support only, the issue of the jurisdiction of this Court must be decided based on the CJPTA: Parker v. Mitchell, 2016 BCSC 723 at para. 11.

The Jurisdictional Issues

[37] I begin by setting out the relevant provisions of the CJPTA:

Application of this part

2 (1) In this Part, “court" means a court of British Columbia.

(2) The territorial competence of a court is to be determined solely by reference to this Part.

Proceedings against a person

3 A court has territorial competence in a proceeding that is brought against a person only if

(d) that person is ordinarily resident in British Columbia at the time of the commencement of the proceeding, or

(e) there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based.

Residual discretion

6 A court that under section 3 lacks territorial competence in a proceeding may hear the proceeding despite that section if it considers that

(a) there is no court outside British Columbia in which the plaintiff can commence the proceeding, or

(b) the commencement of the proceeding in a court outside British Columbia cannot reasonably be required.

Real and substantial connection

10 Without limiting the right of the plaintiff to prove other circumstances that constitute a real and substantial connection between British Columbia and the facts on which a proceeding is based, a real and substantial connection between British Columbia and those facts is presumed to exist if the proceeding ...

Discretion as to the exercise of territorial competence

11 (1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding.

(2) A court, in deciding the question of whether it or a court outside British Columbia is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including

(a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum,

(b) the law to be applied to issues in the proceeding,

(c) the desirability of avoiding multiplicity of legal proceedings,

(d) the desirability of avoiding conflicting decisions in different courts,

(e) the enforcement of an eventual judgment, and

(f) the fair and efficient working of the Canadian legal system as a whole.

[38] None of the criteria set out ins. 10 is applicable to the case at bar.

Ordinarily resident and territorial competence

[39] Whether the court has territorial competence to deal with the spousal support claim under the CJPTA depends on whether s. 3(d) applies to the respondent— whether he was “ordinarily resident” in British Columbia when the proceeding was commenced: Parker at para.

[40] A person is ordinarily resident where “...in the settled routine of his life he regularly, normally or customarily lives”: Thompson v. Minister of National Revenue, [1946] S.C.R. 209 at 231.

[41] Even if the words “ordinarily resident” were to be given the broadest and most liberal interpretation possible, the respondent could not be considered ordinarily resident in British Columbia at the time the proceedings in this matter were commenced.

[42] The respondent was “ordinarily resident” in Dubai in January 2017. He lived and worked there. Although he traveled extensively for both work and recreation, he maintained living quarters at the Fairmont Hotel in Dubai and occasionally traveled to Kazakhstan to see his wife and children. He did not travel to Canada on any regular basis.

[43] He bought a piece of property near Vernon, BC (Spallumcheen) in December 2015, but had no need to travel to Vernon to complete. He managed the transaction from Dubai.

[44] His mother and sister live in Canada but he only comes to visit for short periods of time and has not been here since 2014.

[45] His only trip to Canada recently was necessitated by the actions of the FMEP in flagging his passport. He was forced to travel to Ottawa to obtain a new passport so that he could continue to travel for his job.

[46] I am satisfied I cannot find territorial competence in British Columbia on the basis of the respondent’s ordinary residence.

Real and substantial connection

[47] The factors set out ins. 10 of the CJPTA enumerate those on which the court will be presumed to have territorial competence in a matter before it. But certainly, these factors do not constitute an exhaustive list.

[48] However, none of those factors applies in this case. It is clear that if the claimant is to establish a real and substantial connection between the facts underlying her application for spousal support and British Columbia, the claimant will have to point to “other circumstances” informed by relevant principles from the common law of jurisdiction to support her position: Club Resorts Ltd. v. Van Breda, 2012 SCC 17 at para. 41.

[49] The use of “other circumstances” must meet a very restrictive test so that the expansion of factors to establish additional presumptive factors is treated with caution and not used to attempt to establish jurisdiction simpliciter: Aleong. v. Aleong, 2013 BCSC 1428.

[50] The Supreme Court of Canada in Van Breda appears to wish to avoid a helter-skelter development of jurisdictional factors based on a case-by-case exercise of discretion that would be contrary to principles of stability and predictability.

[51] Van Breda was cited by Williams, J. in Danielson v. Janze, 2017 BCSC 413 at para. 31.

Other circumstances

[52] The proof of other circumstances is a burden borne by the claimant.

[53] I adopt the summary of “presumptive common law connecting factors” taken from para. 90 of Van Breda per Lebel J. as quoted in the respondent’s argument at para. 74:

(a) the defendant is domiciled or resident in the province:

(b) the defendant carries on business in the province:

(c) the tort was committed in the province: and

(d) a contract connected with the dispute was made in the province.

[54] These presumptive factors are derived in the context of a tort action so that they bear some reinterpretation in the context of this case. But if I consider the first two of those factors which are relatively universal, neither is applicable. The respondent neither lives in the province nor carries on business here.

[55] I can reinterpret (c) to make the question whether the acts that resulted in the claim took place in the province. However, there is quite simply no connection between the acts and this province. Therefore, this “other” connecting factor is not applicable.

[56] The alleged promise of marriage could be forced into the category of a contract but there is no evidence of anything more than the respondent giving a reactive reassurance to the claimant on her announcement of pregnancy and that reassurance was certainly not formalized or repeated. The claimant herself says that shortly after mentioning marriage the respondent stopped raising it as a possibility.

[57] In any event, the suggestion of marriage was not made in British Columbia and none of the events on which the claimant has based her claim for spousal support occurred in this province.

[58] There are simply no objective factors in this case that connect the subject matter of the litigation with British Columbia: Van Breda at para. 82.

[59] The claimant has raised the respondent’s purchase of property in BC as a basis for her family law case against the respondent and as a connecting factor.

[60] If the respondent were using this property for his business or if the claimant had assisted with the purchase, or if the property itself were the issue in the lis between the parties then there would be a reasonable likelihood (and the presence of a presumptive factor under s. 10) of founding territorial competence on the presence of title to the property in the respondent’s name. But the bare ownership of the property by the respondent is an inadequate basis to establish a connection with BC in the absence of any other connecting factors.

[61] If the opposite were true, there would be a number of persons surprised to learn that they were subject to the territorial competence of BC courts simply by virtue of holding title to a property in BC when that property is not the subject of a claim against them.

[62] There is no claim for property in this case.

[63] I note that the claimant was unable to produce any authority supporting a finding of territorial competence where the only connecting factor was the ownership of property and that ownership was not related in any way to the dispute between the parties.

Section 6 of the CJPTA and residual discretion

[64] Section 6 provides that a court has a residual discretion to hear a proceeding even if it lacks jurisdiction under s. 3.

[65] For convenience, I set out s. 6 once again below:

Residual discretion

6 A court that under section 3 lacks territorial competence in a proceeding may hear the proceeding despite that section if it considers that

(a) There is no court outside British Columbia in which the plaintiff can commence the proceeding, or

(b) The commencement of the proceeding in a court outside British Columbia cannot reasonably be required.

[66] Counsel for the claimant urges that if I find no real and substantial connection between BC and the facts on which his client’s claim is based, I ought to exercise my discretion to found jurisdiction on what he asserts is this Court’s role as a “court of last resort”.

[67] This discretionary provision is also known as the “doctrine of necessity”.

[68] In Danielson, Williams J. describes s. 6 at para. 62 as follows:

Section 6 is a statutory enactment of the so-called forum of necessity doctrine. ... the point I take to be important is that, while the forum of necessity doctrine incorporates a reasonableness test, courts have set a high bar for its invocation. It is to be stringently interpreted and will be limited to exceptional cases... [citing West Van Inc. v. Daisley, 2014 ONCA 232, per Hoy ACJO],

[69] Both counsel have provided extensive expert evidence, some of which is disputed between the experts.

[70] However, one point is not disputed: it is clear that as an unmarried person, the claimant would not be able to claim for spousal support in Russia, Belarus or Kazakhstan, the current residence of the respondent.

[71] While this could be a determining factor, under s. 6(a) of the CJPTA, it must be pointed out that the interim relief the claimant obtained in this province for spousal support, was not properly obtained. I have set out my findings on this point above in paras. 29-36.

[72] In my view, there may be no availability of spousal support for the claimant in any court, including that of British Columbia, so that s. 6(a) of the CJPTA does not apply.

[73] To hold otherwise would allow the claimant to bootstrap her jurisdictional argument on a claim which is untenable in the first place.

[74] Section 6(b) states that a court may only take jurisdiction if it is satisfied that the commencement of a proceeding in a court outside British Columbia cannot reasonably be required. The burden of proof on this point is borne by the claimant.

[75] The expert evidence does not state that the claimant cannot pursue child support in Russia, Belarus or Kazakhstan. In fact, all of these countries have regimes of family law that could grant appropriate child support. Rather, the claimant’s experts point to the difficulty of enforcement of such an order because, at the time materials were filed, the respondent was working in Dubai and owned no property in any of the countries where the order could be executed.

[76] The respondent is now back in Kazakhstan with his wife and children, living in an apartment of which he is a joint owner, and has accepted a position with a local company in Kazakhstan.

[77] There are reciprocal enforcement agreements for collection of child support between Russia, Belarus and Kazakhstan. The Minsk Convention may or may not apply but the Kishinev Convention does apply and would allow enforcement against the respondent in Kazakhstan.

[78] The evidence of where the claimant has a registered address is somewhat uncertain. She has obtained a residence permit in Belarus but used a registered address in Moscow when she went there to give birth.

[79] She claims that she and her child are resident in Belarus but there is no possibility for this Court to examine that assertion since the respondent has learned she returned to Dubai immediately after the birth of her child and remains there to work at present.

[80] The respondent has commenced proceedings in Moscow for access to the child and for the right to amend his birth certificate to add his name as father.

Counsel for the parties appeared in Moscow on May 24, 2018.

[81 ] At that time, it appears that counsel for the claimant alleged that the Canadian court had taken jurisdiction in this matter by making orders in the proceeding. The Russian judge was not given a copy of the respondent’s jurisdictional response and the claimant’s counsel did not explain the effect of that jurisdictional response on any orders that existed.

[82] Supreme Court Family Rule 18-2(5) was not provided to the Russian court. It will be given to the Moscow Judge on the return date for the hearing.

[83] The claimant did not give the child’s birth certificate to the court on May 24, 2018, and the judge ordered the equivalent of the Department of Vital Statistics to provide it to the court.

[84] The judge also ordered the authorities to provide information on the official residence of the claimant in Russia.

[85] The return date for the Moscow proceeding is June 13, 2018. Hence the urgency to provide these Reasons for Judgment.

[86] The respondent does not know if the Moscow court will take jurisdiction over support and access if the evidence about the claimant’s residence supports her contention that she and her son are resident in Minsk, Belarus. However, Ms. Duvall, the respondent’s Russian counsel, states that the court is unlikely to decline jurisdiction over the questions of paternity and amending the child’s birth certificate.

[87] Given that the question of enforcement is more certain as a result of the respondent’s current position in Kazakhstan, there is no reason why the claimant cannot deal with any issues of support and access in either Belarus or Kazakhstan if the Russian court is unable to take jurisdiction.

[88] Both the parties speak Russian. Should any witnesses be required, they would likely be from Dubai, Belarus, Kazakhstan or Russia. Certainly it would appear to require much less expense for them to attend at court than if they were required to attend in British Columbia.

[89] Even if the child lives in Belarus, he is a Russian national.

[90] I see no reason why the claimant cannot seek child support and regulation of access by the respondent in one of the courts to which she is closest. Certainly, both parties have more connection to Belarus, Kazakhstan and Russia than either of them has to British Columbia.

[91 ] The respondent has attorney to the jurisdiction of the Russian court and both parties have legal representation in Russia.

[92] The case of West Van Inc. v. Daisley, 2014 ONCA 232, had as its central issue on territorial competence the interpretation of the common law forum of necessity exception to the real and substantial connection test recognized by the Supreme Court of Canada in Van Breda.

[93] In that case at para. 22, Hoy ACJO quotes LeBel, J.A. writing for the Quebec Court of Appeal in Lamborghini (Canada) v. Automobili Lamborghini S. P.A., [1997] R.J.Q. 58 (Q.C.C.A.) as follows:

According to its legislative history, this provision represents a narrow exception to the usual rules governing jurisdiction. It is not intended to allow a Quebec court to seize a power that it would not otherwise possess. It is intended to settle issues of access to justice for a litigant on Quebec territory when the foreign forum that would normally have jurisdiction is unavailable for exceptional reasons such as a nearly absolute legal or practical impossibility.

This includes, for example, the breakdown of diplomatic or commercial relations with a foreign State, the need to protect a political refugee, or the existence of a serious physical threat if the debate were to be undertaken before the foreign court.

Article 3136 ... [of the Quebec Civil Code] sets out an exception based on the demonstrated impossibility of obtaining access to the foreign court in a dispute that is sufficiently connected to Quebec.

[94] There is no suggestion of the existence of any of these exigent circumstances that would reasonably prevent the claimant from seeking relief in Russia, Belarus or Kazakhstan.

[95] The requirements of s. 6(a) and (b) are not met and no exceptional circumstances exist to allow for the application of the forum of necessity doctrine.

[96] In the circumstances of this case, I am not satisfied that it would be appropriate to exercise the court’s residual discretion under s. 6. to take jurisdiction.

[97] There is no basis for me to consider s. 11 of the CJTPA and the doctrine of forum non conveniens since I have not found territorial competence.

Conclusion

[98] I grant the orders sought in sections 1 and 2 of the respondent’s application:

• The time for service of the application is extended nunc pro tunc to the date of actual service.

• This Court declares that it does not have jurisdiction over the respondent in respect of the claim made in the family law case commenced by the claimant under file no. XXXXXX, Vancouver Registry.

[99] The respondent will have his costs on Scale В throughout. While there has indeed been some reprehensible conduct by the claimant, I do not consider that it rises to the level where special costs would be appropriate.