IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Schubert v. Johnson,

 

2017 BCSC 1664

 

Date: 20170906

Docket: E172245

Registry: Vancouver

Between:

Gina Mae Schubert

Claimant

And

Colin Macdonald Johnson

Respondent

 

Before: The Honourable Madam Justice Warren

 

Oral Reasons for Judgment

In Chambers

Counsel for the Claimant:

J. Aucoin

Counsel for the Respondent:

K.H. Russ

Place and Dates of Hearing:

Vancouver, B.C.

September 5-6, 2017

Place and Date of Judgment:

Vancouver, B.C.

September 6, 2017

THE COURT:    

[1]             The respondent, Mr. Johnson, applies to stay this family law proceeding on the basis that this Court lacks jurisdiction. Alternatively, he asks that this Court decline jurisdiction and stay the action so that the case can be heard in California. The claimant, Ms. Schubert, commenced this proceeding here last week, on August 29, 2017. Mr. Johnson is in the process of commencing a proceeding in California.

[2]             The parties were never married, but they were common-law spouses for about 17 years. They have two daughters, who are 14 and 10 years of age. Both parties are Canadian citizens. However, they have lived outside Canada for about 11 of the 17 years of the relationship. The children were born in Seattle and have dual Canadian/American citizenship and American passports.

[3]             The family lived in Panama from 2011 to June or July 2017. About a year ago, the parties decided to move to California and began taking steps to effect that move. Their last shared intention in this respect was to be in California in time for the girls to start school there this September.

[4]             The parties separated in early June 2017, following two incidents of family violence involving Mr. Johnson and Ms. Schubert. Ms. Schubert began reconsidering the move to California. Nevertheless, in early July, Ms. Schubert signed a separation agreement that contemplated the parties living separately in California, and the parties and the children did subsequently move to California. I will address the circumstances under which Ms. Schubert signed that agreement in more detail in a moment.

[5]             Ms. Schubert and the girls then travelled from California to British Columbia on August 1, 2017 for what had been planned as a vacation. They were expected to return to California on or about August 23, 2017. They did not return. Ms. Schubert decided to remain here with the girls. She advised Mr. Johnson of this by e-mail on August 22, 2017, and commenced this proceeding shortly thereafter.

background

[6]             There are areas of factual dispute that emerge from the record, particularly concerning the characterization of the family violence that Ms. Schubert says has occurred and the reasons why she signed the separation agreement and agreed to follow through on the plan to move to California, notwithstanding the parties’ separation. I am mindful that I am relying on affidavit evidence only, but even if I accept Ms. Schubert’s evidence regarding these matters, it is apparent that when she signed the separation agreement, neither she nor the children were facing any immediate risk of physical harm. There is no evidence that Mr. Johnson was ever violent with the children. The parties had separated and Mr. Johnson had moved to California by the time the separation agreement was signed, or was in the process of moving, so the risk of physical harm to Ms. Schubert had been significantly mitigated.

[7]             Ms. Schubert says she thought she needed Mr. Johnson’s consent to move away from Panama with the girls and, as a result, she was pressured into signing the separation agreement. There is no adequate explanation in the record for her failure to take more concrete steps in Panama to ascertain her legal position. However, even accepting her assertion in this regard at face value, there is no evidence of any particular circumstances that made an immediate move out of Panama imperative. Ms. Schubert says that the only way she could get Mr. Johnson to agree to moving the children from Panama was to agree to go to California, but the evidence does not disclose any compelling reason why they had to leave Panama. In the result, most of the facts necessary to decide the jurisdictional issues, which are the only issues before me today, are not in dispute.

[8]             As noted, the parties are common-law spouses who have two daughters currently aged 14 and 10. The parties began living together in marriage-like relationship in or about 1999. They separated on June 6, 2017.

[9]             Both of the parties and the children are Canadian citizens. Ms. Schubert is a status aboriginal from the Haida Nation in British Columbia. She has a green card that allows her to work in the United States. Mr. Johnson does not have a green card. His immigration status is somewhat uncertain. There is evidence that he started the process of applying, in the United States, for an investor’s green card, but I am told by his counsel that was put on hold recently when his lawyer passed away. I am also told by his counsel that the application process can be restarted and that, even in the absence of any formal status, he can remain in the United States for eight months a year.

[10]         Ms. Schubert is an interior designer and artist. Mr. Johnson is a venture capitalist, who runs several businesses. Both parties are self-employed and their work hours and location of work are flexible. The evidence before me is to the effect that while both parties worked throughout their relationship, Ms. Schubert worked part-time and assumed primary responsibility for the day-to-day care of the children. There is no evidence before me of the parties’ respective incomes or their overall financial circumstances.

[11]         From 2000 to 2005, the parties resided in New York. From 2005 to 2011, they resided primarily in Whistler, British Columbia. From 2011 to June 2017, they resided in Panama. They separated on June 6, 2017 and then moved to California.

[12]         Ms. Schubert has deposed that Mr. Johnson has engaged in abusive and violent behaviour towards her. Two events in particular are highlighted in the evidence, one in April 2017 and one on June 2, 2017, both in Panama. These two recent incidents and particularly the incident on June 2, 2017 led to the separation. Mr. Johnson has not denied these incidents although he says he disagrees with Ms. Schubert’s characterization of what transpired. For the purposes of these applications, he has said little more than he will consent to an interim order, on a without prejudice basis, that continues the existing protection orders until the courts in California deal with the matter.

[13]         As I have already alluded to, the evidence before me establishes that prior to the separation on June 6, 2017, the parties planned to move to California. They made arrangements to become involved in a business that included investing in a real estate development in Carlsbad, California. They ultimately acquired an investment property there. Ms. Schubert was doing some design work in California in the spring of 2017. In the fall of 2016 and into early 2017, Ms. Schubert was involved in efforts to select schools for the girls in San Diego. Schools were selected prior to the separation. Mr. Johnson consulted a lawyer concerning immigration requirements. Ms. Schubert was copied on some of those communications. These communications indicated that the parties planned to move to Carlsbad in the fall of 2017. At some point, Mr. Johnson signed a lease for a residence in California, with a term from May 1, 2017 to May 1, 2019. This residence is located in the vicinity of the children’s schools.

[14]         By June 19, 2017, the parties were negotiating the terms of a separation agreement. Again, there is no dispute that they actually separated on June 6, 2017. By June 19, 2017, an initial proposal, drafted by Ms. Schubert, suggested that she have custody of the children but that parenting time be split. It is apparent from this early draft that both parties were intending to complete the previously planned move to California but to live separate and apart there. This draft addressed summer vacation plans for the summer of 2017, which included Ms. Schubert taking a vacation with the children in British Columbia in August, but returning to California on August 25.

[15]         Ms. Schubert has deposed that on June 20, 2017, she applied to the court in Panama for permission to take the children to Vancouver, B.C. and that, to the best of her knowledge, the order was not granted because Mr. Johnson advised the court that he would agree that she could leave Panama with the children and take them to California. Mr. Johnson claims to have no knowledge of any such application.

[16]         On July 1, 2017, the parties exchanged e-mail communications and Mr. Johnson indicated, among other things, that he might be open to reconsidering the move to California. For her part, Ms. Schubert indicated she was open to moving to California, notwithstanding the separation, but that she needed a “hard plan” and an “agreement”.

[17]         The parties met with some friends in Panama on July 3, 2017 in an effort to mediate a solution. A letter from one of those friends indicates that at the meeting Ms. Schubert expressed a desire to go to Canada, Mr. Johnson was adamant on California, and that, ultimately, the friend urged Ms. Schubert to agree to California.

[18]         The parties eventually signed a written separation agreement that fairly closely tracks the draft that the parties had been negotiating since June 19, 2017. Ms. Schubert says she signed the separation agreement on July 7, 2017 at the airport in Panama and that she did so under extreme pressure and duress. Specifically, she says Mr. Johnson told her if she refused to sign the separation agreement, she would be stuck in Panama because he would never sign a document consenting to the children leaving Panama. Ms. Schubert said the oldest daughter heard this and started sobbing and begged her to let them leave Panama. Ms. Schubert says she did not receive legal advice with respect to the separation agreement and that Mr. Johnson’s corporate lawyer witnessed her signature. Mr. Johnson denies pressuring Ms. Schubert to sign the separation agreement. He says it was signed at her behest so that she had a settled state of mind prior to moving to California. He also deposes that Ms. Schubert had legal advice.

[19]         On July 9, 2017, Ms. Schubert sent an e-mail to a realtor in California indicating she would be in California from July 14 to July 19 and asking whether it was viable “to shop for a place to live”. Also in July 2017, Ms. Schubert arranged to ship the parties’ personal belongings from Panama to California.

[20]         Shortly after the separation agreement was signed, Mr. Johnson and the older daughter travelled from Panama to California. Ms. Schubert and the younger daughter travelled from Panama to California about a week later. She took the younger daughter to Mr. Johnson’s residence in California where it was agreed she would remain until August 1, 2017.

[21]         On July 18, 2017, Ms. Schubert returned to Vancouver to work. She was then back in California on July 27, 2017. While she was there, she made inquiries about renting a residence in the area.

[22]         On August 1, 2017, Ms. Schubert picked the children up at Mr. Johnson’s home in California, as previously agreed. She has deposed that he produced a travel document stating that he agreed the children could come to British Columbia from August 1 to August 23, 2017. She agrees she signed that travel document. Her evidence appears intended to imply that she did not do so willingly, although she does not say that expressly. Mr. Johnson deposes that he did not exert any pressure on her to sign the travel document and it was witnessed by one of Ms. Schubert’s friends in California. This is not expressly denied by Ms. Schubert. As I have already indicated, earlier documentation indicates that the parties did plan for Ms. Schubert to have a vacation with the children in British Columbia in August, and then return with them to California.

[23]         Ms. Schubert and the children travelled to British Columbia on August 1, 2017.

[24]         On August 18, 2017, Mr. Johnson enrolled the children in the previously selected schools in California. Ms. Schubert did not sign the enrollment forms, but as already noted, she was in British Columbia at that time.

[25]         After arriving in British Columbia, Ms. Schubert enrolled the children in schools in Whistler, B.C. I am told that the older daughter has not actually commenced school, although her classes likely started yesterday.

[26]         On August 22, 2017, Ms. Schubert sent an e-mail to Mr. Johnson, advising him that she and the girls would not be returning to California. The text of the e-mail reads as follows:

Based on recent events in Panama and California, current circumstances, and to ensure the well-being of the girls and myself, we will not be returning to California tomorrow.

We will be residing in Whistler and the girls are registered for school here.

We can make arrangements for you to see the girls once they are settled.

Going forward, all correspondence with me is to be sent by e-mail. I will not respond to your text or phone calls.

[27]         The obvious inference to be drawn from this e-mail is that Mr. Johnson had expected Ms. Schubert to return to California with the girls on August 23, 2017. In other words, the obvious inference to be drawn is that when Ms. Schubert left California with the girls, she did so on the understanding she would return them to California on August 23, 2017. This is consistent with the travel document and, indeed, it is not expressly disputed.

[28]         Mr. Johnson responded to Ms. Schubert’s e-mail, indicating that he would now have to obtain a lawyer and urging Ms. Schubert to reconsider.

[29]         On August 25, 2017, Ms. Schubert travelled to Victoria with the younger daughter. The older daughter had also travelled to Victoria the day before, with Ms. Schubert’s friend.

[30]         On August 27, 2017, Mr. Johnson advised one of his and Ms. Schubert’s mutual friends that he was in British Columbia and would be coming to pick up the children. A text message he sent to that friend makes clear that he intended to challenge Ms. Schubert’s attempt to move the children to British Columbia.

[31]         Also on August 27, 2017, Mr. Johnson sent an e-mail to Ms. Schubert asking for some time with the children to take them to visit a friend on Bowen Island, B.C. That e-mail indicated he would then return the children to Whistler “to find a place and hopefully end this issue”. From reading that e-mail in its entirety, it is apparent that he was not conveying an intention to remain, permanently, in Whistler. To the contrary, in the e-mail he contemplates the need to incur legal costs and he asks Ms. Schubert to reconsider her position.

[32]         On August 28, 2017, the parties’ older daughter travelled with a family friend by ferry from Nanaimo to Horseshoe Bay. Mr. Johnson picked her up at Horseshoe Bay. The family friend texted Ms. Schubert to advise that he had done so. Ms. Schubert subsequently e-mailed Mr. Johnson’s friend on Bowen Island and confirmed that Mr. Johnson and the older daughter were together on Bowen Island.

[33]         As I understand it, as of the hearing of this application yesterday and today, the older daughter remains with Mr. Johnson and the younger daughter remains with Ms. Schubert. Mr. Johnson has deposed that the older daughter wishes to reside with him in California as planned. That is the only evidence I have of the views of either of the children.

[34]         Both parties have family in British Columbia. Ms. Schubert has deposed that she has several close friends in British Columbia, including in Whistler. Mr. Johnson has deposed they also have close friends in California.

procedural history

[35]         Ms. Schubert commenced this proceeding on August 29, 2017. On the same day, she filed an ex parte notice of application seeking protection orders under the Family Law Act, S.B.C. 2011, c. 25 [“FLA”], together with orders enjoining both parties from leaving the province with the children, an order that the children’s primary residence be with her, and that she exercise all parental responsibilities.

[36]         On the same day, Master Scarth granted an ex parte protection order but expressly provided that it would expire on August 31, 2017 unless extended by agreement or a further order of the court. She also granted an order prohibiting the parties from removing the children from British Columbia, and she adjourned the other applications to August 31, 2017.

[37]         On August 31, 2017, Mr. Johnson filed his response to the family claim. He also filed a jurisdictional response, disputing this Court’s jurisdiction and submitting, alternatively, that it ought not to exercise its jurisdiction. He then filed a notice of application seeking the orders I am considering today.

[38]         Ms. Schubert’s applications came back on for hearing on August 31, 2017. At that time, the parties agreed that Mr. Johnson’s jurisdiction application should be heard first and it was scheduled for yesterday, September 5, 2017. By consent, the protection order and the order prohibiting the removal of the children from British Columbia were extended until 4 p.m. September 5, 2017. The matter did not complete yesterday and had to continue today. By agreement, the parties have extended the protection order and the non-removal order until 4 p.m. today.

[39]         As is evident from the background and procedural history, matters proceeded quite quickly in British Columbia once Ms. Schubert arrived here with the children. Mr. Johnson has focused on responding to Ms. Schubert’s notice of family claim and bringing on this jurisdictional application. However, he has also taken steps that will permit him to commence proceedings in California imminently.

issues

[40]         The issues I must determine are whether this Court has jurisdiction over all or any portion of Ms. Schubert’s claim and, if so, whether I should decline jurisdiction in favour of California. The concept of habitual residence of the parties and the children is relevant to the determination of those issues and so I will start by discussing that concept.

discussion

Habitual residence

[41]         The parties agree that the children are not habitually resident in British Columbia. Mr. Johnson is clearly not habitually resident in British Columbia. No submissions were made on the question of whether Ms. Schubert is habitually resident here.

[42]         In determining habitual residence, the primary question is where a person intends to live for an indefinite period, and the preponderance of time spent in a particular jurisdiction is not determinative: S.R. L. v. K.J.T., 2014 BCSC 597 at para. 30 [S.R.L.].

[43]         It is clear from the evidence that Ms. Schubert wants to live in British Columbia indefinitely, but the evidence does not establish that she has a settled intention to do so irrespective of where the children are living. In other words, the reasonable inference to draw from the evidence as a whole is that Ms. Schubert wishes to reside in close proximity to the children. Before a final determination is made with respect to where the children will reside, it would be impossible to conclude that Ms. Schubert is habitually resident in British Columbia.

[44]         It is clear from the evidence as a whole that the parties’ last shared intention was for the whole family to reside in California indefinitely. The evidence establishes that this continues to be Mr. Johnson’s intention. As noted, the reasonable inference to draw from the evidence as a whole is that Ms. Schubert intends to reside in close proximity to the children. In the circumstances, I find that both parties and the children were habitually resident in California, at least until Ms. Schubert advised Mr. Johnson of her intention to remain in British Columbia with the children. In my view, it is not necessary to decide whether Ms. Schubert and the children continue to be habitually resident in California. It is only necessary to conclude, as I have done, that they are not habitually resident in British Columbia.

Does this court have jurisdiction over the matters in issue?

[45]         As I have said, the parties are not married. Ms. Schubert’s claims are brought under the FLA. Ultimately, she seeks the following relief:

a)    an order respecting child support and spousal support under the FLA;

b)    an order respecting parenting arrangements under the FLA;

c)     orders concerning the division of family property and allocation of family debt under the FLA; and

d)    ancillary orders under the FLA.

[46]         The legal framework for considering whether the court has jurisdiction was helpfully set out by Madam Justice Fenlon in S.R.L. and I intend to paraphrase and draw significantly from her analysis in that decision.

[47]         The starting point for determining whether this Court has jurisdiction is the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 [CJPTA]. Under s. 3(e) of the CJPTA, the Court has jurisdiction in this action if there is “a real and substantial connection” between British Columbia and the facts on which this action is based.

[48]         Section 10 of the CJPTA sets out a list of claims which presumptively have a real and substantial connection to British Columbia. Only s. 10(a) has possible application in this case. It provides that a real and substantial connection is presumed to exist if an action “is brought to enforce, assert, declare or determine proprietary or possessory rights or a security interest in property in British Columbia that is immovable or movable property”. This presumption can be rebutted where the value of a family’s assets within the province is dwarfed by the value of their assets outside British Columbia: Aleong v. Aleong, 2013 BCSC 1428 at paras. 99-100. On the record before me I find that to be the case here. The evidence regarding the parties’ property in British Columbia is thin, but there is some evidence of bank accounts and personal possessions in British Columbia. However, most of the family’s personal property and all of its real property is located outside British Columbia. There is evidence of real property in California and Panama.

[49]         The list in s. 10 of the CJPTA is not comprehensive. Section 10 expressly reserves a plaintiff’s right to prove other circumstances that constitute a real and substantial connection between British Columbia and the facts on which a proceeding is based. Further, s. 12 of the CJPTA recognizes the predominance of other legislation that confers jurisdiction or territorial competence. In this case, the relevant legislation is the FLA.

[50]         Section 74(2)(a) of the FLA gives the Court jurisdiction to make an order respecting guardianship, parenting arrangements or contact with the child if the child is habitually resident in British Columbia when the application is filed. As noted, these children are not habitually resident here. Nevertheless, pursuant to section 74(2)(b) of the FLA, the court has jurisdiction over parenting matters even where a child is not habitually resident, provided that:

·       the child is physically present in British Columbia when the application is filed;

·       there is substantial evidence concerning the best interests of the child available in British Columbia;

·       there is no application for an extraprovincial order pending before an extraprovincial tribunal in a place where the child is habitually resident;

·       there is no extraprovincial order that has been recognized by a court in British Columbia;

·       the child has a real and substantial connection with British Columbia; and

·       on the balance of convenience, it is appropriate for jurisdiction to be exercised in British Columbia.

[51]         There is no dispute that these children are physically present in British Columbia. Although the parties have not resided here for several years, I am persuaded that there is substantial evidence concerning their best interests available in British Columbia. This is because most of that evidence will come from the parties themselves and both of them are available to testify here. Although Mr. Johnson plans to apply for similar relief in California, he has not done so yet and there is no extraprovincial order in place. Although these children are not habitually resident here, I am persuaded that they have a real and substantial connection to this jurisdiction for the following reasons:  Ms. Schubert is from here; all the parties are Canadian citizens; all of them lived here for several years, albeit a few years ago; they have family and friends here; and Ms. Schubert wishes to return here. I will address the balance of convenience in more detail when I consider whether the Court should decline jurisdiction. At this point, suffice it to say that I am persuaded that British Columbia is an appropriate jurisdiction for the hearing of Ms. Schubert’s parenting-related claims. Accordingly, I find that this Court has jurisdiction to make orders respecting guardianship, parenting arrangements, and contact with the children.

[52]         The question of whether this Court has jurisdiction over Ms. Schubert’s property claims and her claims for child support and spousal support is a more difficult one and one that was not developed sufficiently in the parties’ submissions.

[53]         I have already found that the presumption in s. 10(a) of the CJPTA of a real and substantial connection simply because there exists property in British Columbia has been rebutted because, on the evidence before me, the property here is of negligible value. However, s. 106(2)(d) of the FLA gives the court jurisdiction over property division if there is a real and substantial connection between British Columbia and the facts on which the property claim is based. While there may not be a real and substantial connection between British Columbia and the assets themselves, as I have already discussed there is a real and substantial connection between British Columbia and the parties. I have already decided that this Court has jurisdiction to decide the parenting issues. That provides a further connection to British Columbia.

[54]         Neither party made submissions concerning the question of this Court’s jurisdiction to award child support. Neither of the parties made helpful submissions on the question of this Court’s jurisdiction to award spousal support. Unlike Part 4 of the FLA, which applies to care and time with children, and Part 5, which applies to property division, there is no specific provision in the FLA addressing jurisdiction with respect to child support or spousal support. It may be that my conclusion that this Court has jurisdiction to deal with the parenting issues provides a sufficient connection to this jurisdiction to also ground jurisdiction to deal with child support, and perhaps spousal support as well. Having said that, in Jiang v. Shi, 2016 BCSC 2272 at para. 23, Madam Justice Gropper relied on Cockerham v. Hanc, 2014 BCSC 2432 as authority for the proposition that this Court does not have jurisdiction to order spousal support when neither party is habitually resident in British Columbia.

[55]         At the end of the day, I have decided that it is not necessary for me to reach a conclusion with respect to whether this Court has jurisdiction over the property claims and the claims for child support and spousal support. This is because I have concluded that, notwithstanding my finding that this Court has jurisdiction to deal with the parenting issues, and even if this Court has jurisdiction to deal with all of the issues, I should exercise my discretion to decline jurisdiction in favour of California.

Should this court exercise its jurisdiction?

[56]         The factors that apply on a forum conveniens analysis are set forth in s. 11 of the CJPTA, which codifies the doctrine of forum non conveniens in British Columbia: Shortridge-Tsuchiya v. Tsuchiya, 2010 BCCA 61, at para. 60 [Shortridge-Tsuchiya].

[57]         Section 11 of the CJPTA provides as follows:

(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 proceedings 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 judgement, and

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

As explained by Madam Justice Prowse for the Court of Appeal in the Shortridge v. Tsuchiya case at para. 61, these factors are inclusive and not restrictive. They permit the court to consider the purposes of the specific provisions of the FLA concerning extraprovincial matters.

[58]         The purposes of Division 7 of the FLA, which is headed “Extraprovincial Matters Respecting Parenting Arrangements”, are set out in s. 73:

The purposes of this Division are as follows:

(a) to ensure that court applications respecting guardianship, parenting arrangements or contact with a child are determined on the basis of the best interests of the child;

(b) to avoid the making of orders respecting guardianship, parenting arrangements or contact with a child, respecting the same child, in more than one jurisdiction;

(c) to discourage child abduction as an alternative to determining by due process the guardianship of, or parenting arrangements with respect to, a child;

(d) to provide for effective enforcement of orders respecting guardianship, parenting arrangements or contact with a child, and for the recognition and enforcement of extraprovincial orders.

[59]         There is overlap between the factors expressed in s. 11 of the CJPTA and the purposes expressed in s. 73 of the FLA. In particular, the CJPTA and the FLA have common goals of avoiding a multiplicity of proceedings and conflicting judgments. The stated purpose of the FLA of avoiding abductions and the wrongful removal of children may be viewed as relevant to a consideration of the fair and efficient working of the Canadian legal system as a whole, as expressed in the CJPTA.

[60]         In this case, many of the factors that I am to consider do not clearly favour one jurisdiction over the other.

[61]         The comparative convenience and expense for the parties and their witnesses does not weigh heavily in favour of British Columbia or California. The children have not lived for any material length of time in either jurisdiction. I appreciate that the parties lived in Whistler for some years, but any evidence from their time in Whistler will be dated. The more important evidence will be contemporaneous evidence. I am not saying there will not be a need for any British Columbia witnesses, but the primary evidence will be from the parties themselves. Mr. Johnson wishes to be in California. Ms. Schubert wishes to be in British Columbia. Either way, someone will be inconvenienced. Ms. Schubert has raised the possibility that there could be expert witnesses from British Columbia on Haida culture. Even if that is so, that evidence can be made available in California. It is also possible that it will be necessary for there to be expert evidence concerning the needs of the children and/or the ability of the parties to provide for those needs, but that evidence can be available in either jurisdiction. There is no real property in British Columbia, but there is real property in California that may have to be appraised. That evidence may be better sourced in California. Suffice it to say, the comparative convenience and expense does not clearly favour one jurisdiction over the other.

[62]         There is no competing proceeding in California as yet, but I accept the representations made by Mr. Johnson’s counsel to the effect that he is in the process of instructing lawyers in California to commence proceedings there and he expects to do so imminently. Having said that, in my view, a multiplicity of legal proceedings and the prospect of conflicting decisions are unlikely in this case. If this Court was to accept jurisdiction, it is likely that the California courts would decline jurisdiction. So, again, the desire to avoid a multiplicity of proceedings and conflicting decisions does not weigh heavily either way in this case.

[63]         There is no issue with respect to the enforcement of an eventual judgment in either jurisdiction.

[64]         Ms. Schubert’s counsel made submissions to the effect that her relatively weaker financial position is a factor that favours British Columbia, but there is an insufficient evidentiary foundation for me to make findings concerning the parties’ respective financial positions.

[65]         The separation agreement appears to provide that it is governed by the law of British Columbia. On its own that would favour of British Columbia but only slightly so given it is Ms. Schubert’s primary position that the agreement is not enforceable.

[66]         I turn then to a consideration of the children’s best interests. I do not have much evidence, if any, concerning the health and emotional well-being of the children or the nature and strength of their relationships with the parties. There is no suggestion that either party is unable to exercise parental responsibilities concerning the children. Stability is always in the best interests of a child, however. Mr. Johnson’s uncertain immigration status in the United States introduces a degree of instability in California, but he can stay in California for at least eight months. Further, it appears that any instability arising from his immigration status was not a significant concern to either party given they had agreed to move to California notwithstanding his immigration status. The children were clearly anticipating the move to California. They must have been expecting to be starting school in there. Ms. Schubert’s unilateral decision to retain the children in British Columbia has disrupted those expectations and introduced instability into their lives. On the record before me, a consideration of the children’s best interests slightly favours California.

[67]         For the foregoing reasons, either British Columbia or California would be an appropriate forum. This is not a case where one is clearly better than the other. In these circumstances, the factor that tips the balance is the fair and efficient working of the Canadian legal system as a whole and the purpose of the Extraprovincial Matters division of the FLA to discourage child abductions.

[68]         Ms. Schubert submits that this Court should not condone an abusive partner coercing a vulnerable partner into an unfair agreement and then profiting from that unfair agreement by using it to force the matter to be heard in the jurisdiction of his choice. That submission is attractive and I empathise with the position Ms. Schubert finds herself in. The problem is that on this application, on affidavit evidence alone, I am not in a position to find, as a fact, that Ms. Schubert was coerced by Mr. Johnson. He denies doing so and Ms. Schubert’s friend has a written a letter indicating that, mere days before the separation agreement was signed, she urged Ms. Schubert to agree to California. On the other hand, the evidence is clear that Ms. Schubert did unilaterally relocate the children to British Columbia.

[69]         Ms. Schubert’s allegations of domestic violence are serious. Domestic violence cannot be condoned. However, by the time the separation agreement was signed, the risk of physical harm had been significantly mitigated. I appreciate that Ms. Schubert did not want to remain in Panama but, as I have already said, the evidence does not establish any immediate need for Ms. Schubert and the children to leave Panama, where they had resided for six years, or that remaining there until appropriate orders could be obtained would have been intolerable for any of them. Although the parties do not have a historical connection to California, the evidence is clear that their last shared intention was to move there and that they followed through on that intention. It was wrong of Ms. Schubert to unilaterally retain the children in British Columbia, contrary to her agreement to return them to California on or about August 23. That conduct cannot be countenanced. In a case where the other relevant factors do not clearly favour British Columbia, this tips the balance in favour of California. For these reasons this Court declines to exercise its jurisdiction in this case.

conclusion

[70]         Ms. Schubert’s notice of family claim filed August 29, 2017 is stayed on the following conditions which are imposed pursuant to s. 77 of the FLA:

·       by September 15, 2017, Mr. Johnson must start a similar proceeding in California;

·       by September 15, 2017, Mr. Johnson must transfer to Ms. Schubert the sum of $70,000 as contemplated by the separation agreement that the parties signed, without prejudice to any claims either of them may make in the California proceedings;

·       as contemplated by the separation agreement, Mr. Johnson must make support payments of $900 U.S. per child per month and $1,000 U.S. for housing per month, for a total of $2,800 U.S. per month, on the first day of each month, unless and until different amounts are agreed to by the parties or ordered by the California court, in which case, Mr. Johnson must continue to make support payments in the amounts agreed to or ordered, all without prejudice to any claims either party may make in the California proceedings;

·       by September 15, 2017, Mr. Johnson must take steps to pursue his investor green card application in the United States and he must keep Ms. Schubert apprised of and updated on the status of that application in a timely and continuous way; and

·       the no contact provisions of Master Scarth’s order will remain in place until further agreement of the parties or court order.

[71]         If Mr. Johnson does not comply with the conditions that I have imposed, then Ms. Schubert has liberty to apply in this Court to lift the stay.

[72]         Finally, pursuant to s. 77(2) of the FLA, Ms. Schubert shall take the younger child to California by September 15, 2017 and Mr. Johnson shall take the older child to California by the same date; however, this particular provision of the order is stayed until Mr. Johnson delivers a cheque or money order made out to Ms. Schubert in an amount sufficient to cover the cost of one-way air tickets for her and the younger child to travel to California and until he has transferred the $70,000 to Ms. Schubert, as I have previously ordered. Until he has done both of those things, the order prohibiting the parties from removing the children from British Columbia will remain in effect. Once he has done both of those things, that order will expire.

[73]         Are there any questions?

[74]         MS. AUCOIN:  The only thing I wish to bring to Your Ladyship’s attention, when the separation agreement was signed, Mr. Johnson was there. They were all at the airport together. He hadn’t fully physically moved. The second part is a text message which I neglected to bring to Your Ladyship’s attention from Ms. Schubert’s counsel in Panama when they were applying to have her permission to leave the jurisdiction.

[75]         THE COURT:  I saw that text message.

[76]         MS. AUCOIN:  You saw that text message.

[77]         THE COURT:  It’s ambiguous, if it’s the one that I am thinking of, where she says -- she asks a question?  Ms. Schubert asks a question?

[78]         MS. AUCOIN:  Yes, that’s correct, page 17, tab 13.

[79]         THE COURT:  Read it to me.

[80]         MS. AUCOIN:  “When we asked for the judgment for me and the children to go to Canada and the judge threw it out because Colin said he would sign for the kids to leave the country, correct?  No, threw it out. The process still open, but in that moment they accept that he voluntarily will sign the authorization. Okay, thank you.”  That was the text message between Ms. Schubert and the lawyer.

[81]         THE COURT:  That is too ambiguous to have any bearing on my decision.

[82]         MS. AUCOIN:  Thank you, My Lady.

[83]         MR. RUSS:  Just one clarification on the last term, cheque or money order concerning one-way airfare for Ms. Schubert and the youngest child, can that be paid to my friend, Ms. Aucoin?

[84]         THE COURT:  Yes.

[85]         MR. RUSS:  Because the way -- the way it was worded, it was to Ms. Schubert. So it can be paid to Ms. Aucoin, or legal counsel for Ms. Schubert?

[86]         THE COURT:  I said deliver a cheque or money order made out to Ms. Schubert in an amount sufficient to cover the costs. But, yes, there can be a provision that he can make both payments, for the airfare and the $70,000, if he chooses, by providing the money through counsel.

[87]         MR. RUSS:  And just so that there is no ambiguity in holding up the payment of the 70,000, is that Canadian or American?

[88]         MS. AUCOIN:  I believe the agreement is --

[89]         THE COURT:  It’s -- what does the agreement contemplate?

[90]         MS. AUCOIN:  I don’t believe it says, but this was drafted in Panama, which is Panamanian Balboas, which is the equivalent of the American currency, so I would say that it was American dollars, $70,000 American.

[91]         THE COURT:  Yes, American dollars.

[92]         MR. RUSS:  And costs, My Lady?  In the circumstances given the conduct of the mother withholding the children here in the jurisdiction of British Columbia, precipitating this application, I would ask for costs and I would ask those costs be fixed here today, save the parties a hearing in front of the registrar and I would ask those costs be fixed.

[93]         THE COURT:  I am not going to fix the quantum of costs. There is debate about whether judges in this court should be doing that summarily. It is already 2:35 p.m. This matter has taken up a lot more court time than was originally anticipated and has disrupted another matter that was scheduled to start at 10:00 a.m. today. I do not think I should further inconvenience the parties on that other matter by spending more time hearing submissions about the appropriate quantum of costs. If the parties can’t agree they will have to deal with that in the ordinary way, with a hearing before the registrar. I will award costs, however, to Mr. Johnson on the basis that he has been successful on his application.

“Warren J.”