Stone v. Shutes, 2006 BCCA 515

• Judge: Donald, Mackenzie and Chiasson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 09, 2006
• Jurisdiction: British Columbia
• Citations: 2006 BCCA 515;(2006), 232 B.C.A.C. 173 (CA)

Stone v. Shutes (2006), 232 B.C.A.C. 173 (CA);

    385 W.A.C. 173

MLB headnote and full text

Temp. Cite: [2006] B.C.A.C. TBEd. NO.036

Jo-Anne Stone (appellant/plaintiff) v. Gary Allen Shutes (respondent/defendant)

(CA033947; 2006 BCCA 515)

Indexed As: Stone v. Shutes

British Columbia Court of Appeal

Donald, Mackenzie and Chiasson, JJ.A.

November 10, 2006.

Summary:

A mother sought custody, guardianship and access orders concerning two children. The father applied to stay the action on the ground that the matters were before a court in Washington State. The stay was granted. The mother appealed.

The British Columbia Court of Appeal dismissed the appeal.

Conflict of Laws - Topic 2302

Family law - Custody of and access to children - Jurisdiction of court - [See Family Law - Topic 2122 ].

Family Law - Topic 2122

Custody and access - Jurisdiction - Where custody or access order made in another jurisdiction - A mother and father were married in British Columbia and divorced in Washington State - The Washington court approved a parenting plan, with the children to reside with the mother the majority of the time - The mother moved to British Columbia with the children - Difficulties arose respecting the father's access - A matter respecting child support was dealt with by the Washington court - The mother then commenced an action in British Columbia for interim and permanent custody of the children (essentially seeking to confirm her custody of the children and supplant only those portions of the Washington order dealing with the father's access) - The father applied to stay the action on the ground that the matters were before a court in Washington State - The court declined jurisdiction and the stay was granted - The mother appealed - The British Columbia Court of Appeal dismissed the appeal - The court stated that there was no reason to conclude that the Washington court was not attuned to the best interests of the children - Therefore judicial comity must be accorded substantial weight - Absent an error of law or clear error of fact, the decision of a judge to decline jurisdiction under ss. 46 and 49 of the Family Relations Act was discretionary and there was no such error in this case.

Family Law - Topic 2126

Custody and access - Jurisdiction - Declining jurisdiction - [See Family Law - Topic 2122 ].

Cases Noticed:

Rasaiah v. Rose (2004), 196 B.C.A.C. 191; 322 W.A.C. 191; 2004 BCCA 250, refd to. [para. 5].

D.P.C. v. R.B.L. (2005), 218 B.C.A.C. 72; 359 W.A.C. 72; 2005 BCCA 497 (C.A.), refd to. [para. 14].

Gunsay v. Gunsay (1999), 127 B.C.A.C. 28; 207 W.A.C. 28; 175 D.L.R.(4th) 678 (C.A.), refd to. [para. 14].

Statutes Noticed:

Family Relations Act, R.S.B.C. 1996, c. 128, sect. 44(1)(a), sect. 46 [para. 5]; sect. 49 [para. 6].

Counsel:

D. Lobay, for the appellant;

J. Anthony, for the respondent.

This appeal was heard on November 9, 2006, before Donald, Mackenzie and Chiasson, JJ.A., of the British Columbia Court of Appeal. The following decision of the court was delivered orally by Mackenzie, J.A., on November 10, 2006.