D.P.C. v. R.B.L., (2005) 218 B.C.A.C. 72 (CA)

Judge:Rowles, Newbury and Levine, JJ.A.
Court:Court of Appeal of British Columbia
Case Date:September 27, 2005
Jurisdiction:British Columbia
Citations:(2005), 218 B.C.A.C. 72 (CA);2005 BCCA 497
 
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D.P.C. v. R.B.L. (2005), 218 B.C.A.C. 72 (CA);

    359 W.A.C. 72

MLB headnote and full text

Temp. Cite: [2005] B.C.A.C. TBEd. NO.006

D.P.C. (petitioner/appellant) v. R.B.L. (respondent/respondent)

(CA32842; 2005 BCCA 497)

Indexed As: D.P.C. v. R.B.L.

British Columbia Court of Appeal

Rowles, Newbury and Levine, JJ.A.

September 27, 2005.

Summary:

A mother petitioned for an order varying an Order Determining Parentage, an Order of Child Support and a Parenting Plan Order, which had been made by the Superior Court of Washington with respect to the parties' children. A British Columbia Supreme Court judge in chambers held that while the children were habitually resident in British Columbia and the court had jurisdiction, it should decline to exercise that jurisdiction. The mother appealed.

The British Columbia Court of Appeal allowed the appeal, set aside the order of the chambers judge and ordered that the petition be heard in the Supreme Court of British Columbia.

Editor's note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 2120

Custody and access - Jurisdiction - Founded on residence of child - A mother petitioned for an order varying an Order Determining Parentage, an Order of Child Support and a Parenting Plan Order, which had been made by the Superior Court of Washington with respect to the parties' children - A British Columbia Supreme Court judge in chambers held that while the children were habitually resident in British Columbia and the court had jurisdiction, it should decline to exercise that jurisdiction - The mother appealed, arguing that based on s. 44 of the Family Relations Act, if the child in question was habitually resident in British Columbia, then the court had to take jurisdiction - The British Columbia Court of Appeal rejected the argument - Even where the court had jurisdiction, it could decline to exercise it where "it is more appropriate for jurisdiction to be exercised outside British Columbia" (s. 46) - See paragraph 7.

Family Law - Topic 2122

Custody and access - Jurisdiction - Where custody or access order made in another jurisdiction or under the Divorce Act - A mother petitioned for an order varying an Order Determining Parentage, an Order of Child Support and a Parenting Plan Order, which had been made by the Superior Court of Washington with respect to the parties' children - The mother's affidavit raised various matters concerning the children, some of which had allegedly arisen since a Guardian Ad Litem Report was prepared in Washington - A British Columbia Supreme Court judge in chambers held that while the children were habitually resident in British Columbia and the court had jurisdiction, it should decline to exercise that jurisdiction - The British Columbia Court of Appeal allowed an appeal and ordered that the petition be heard in British Columbia - The chambers judge erred in proceeding on the basis that an extensive investigation had been held in Washington and in concluding that the question of access would more appropriately be dealt with by the Washington court - In doing so, he appeared 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 were in British Columbia, the children's health care professionals were in British Columbia, and the "new matters" concerning the children had not been resolved.

Statutes Noticed:

Family Relations Act, R.S.B.C. 1996, c. 128, sect. 44, sect. 46 [para. 7].

Counsel:

D.L. Anderson, for the appellant;

E. Stoker, for the respondent.

This appeal was heard on September 27, 2005, at Victoria, British Columbia, before Rowles, Newbury and Levine, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered orally by Newbury, J.A., on the same date.

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