IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Fastlicht v. Carmichael, |
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2018 BCSC 37 |
Date: 20180112
Docket: E162523
Registry: Vancouver
Between:
Sandra Fastlicht
Claimant
And
Robert Patterson Carmichael
Respondent
Before: The Honourable Madam Justice Maisonville
Reasons for Judgment
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Counsel for the Claimant: |
M.J. Lecovin |
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Counsel for the Respondent: |
Jeffrey A. Rose, Q.C. |
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Place and Date of Hearing: |
Vancouver, B.C. October 12, 2017 |
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Place and Date of Judgment: |
Vancouver, B.C. January 12, 2018 |
[1] This family law case concerns whether the British Columbia Supreme Court has jurisdiction to determine the property, debt and spousal support issues between the parties, and if BC does not have full jurisdiction, whether the issues should be split between BC and Ontario, or whether the entirety of the matters should be heard in either BC or Ontario. Additionally, this case pertains to whether it is appropriate to decline jurisdiction in favour of Ontario should BC jurisdiction be found.
[2] For the reasons set out herein, I have determined that BC has jurisdiction to hear the entirety of this family dispute and that BC is the appropriate forum.
[3] The claimant, Dr. Fastlicht, and the respondent, Dr. Carmichael, met and began a relationship in September 2011 in Toronto, Ontario.
[4] The claimant is a trained orthodontist and previously taught at the University of British Columbia (“UBC”). When she met the claimant, she was a clinical associate professor of dentistry at UBC and additionally worked at her practice one day a week. She enjoyed an annual income of approximately $178,000.
[5] The claimant was in Toronto in September 2011 to commence a one-year craniofacial fellowship at the Hospital for Sick Children (“Sick Kids”), where she met the respondent.
[6] In 2011, the respondent was Chief of Dentistry at Holland Bloorview Kids Rehabilitation Hospital, Director of Ontario McHITC Cleft Lip and Palete/Craniofacial Dental Program, Coordinator of Prosthodontics at Sick Kids, and an Assistant Professor at the University of Toronto. He was specializing in prosthodontics as well as treating children for craniofacial and dental anomalies. He worked at Sick Kids in Toronto one day a week, Holland Bloorview Kids Rehabilitation Hospital three days a week, and in private practice one day a week.
[7] The parties became engaged in February or March of 2012, and the respondent gave the claimant a diamond engagement ring.
[8] At the time, the parties discussed where they were going to live together. As noted, the claimant had moved from Vancouver to Toronto to do a fellowship at Sick Kids. Pursuant to the terms of the claimant’s contract with UBC, if she chose not to return and to stay in Toronto indefinitely, she would have been obliged to repay UBC for most of her salary. Additionally, she would have been required to resign from her position with UBC, leaving her unemployed and without her approximately $178,000 annual income, funds that she needed for her own support and to repay her education loan. Further, if the claimant moved to Toronto, she would have lost her licence to practice dentistry, as it was tied to UBC, and her dental practice in Vancouver.
[9] Consequently, in April 2012, the parties began to look into returning to Vancouver to live and work. In May 2012, they met with the Dean of Dentistry at UBC to discuss the two of them each obtaining positions there.
[10] The respondent did, in fact, apply for a job at UBC but he was not offered it.
[11] The parties then agreed that they would stay together in Toronto. The respondent agreed to support the claimant by paying the equivalent of her UBC salary until she passed the Ontario examinations and obtained her licence to practice dentistry in Ontario.
[12] The claimant advised UBC that she would not be returning and obtained a loan to pay for her move to Toronto. She also let go of her apartment in Vancouver and moved her mother from Mexico City to Toronto.
[13] The respondent assumed certain debts of the claimant, including the debt accrued to pay back UBC as a result of the claimant not returning to Vancouver, which remains outstanding. Meanwhile, the claimant had yet to pass her examinations in Ontario to obtain a full licence to practice dentistry.
[14] There was some evidence that the parties planned their finances together. The respondent, as noted, indicated that he would pay the claimant a salary from his company. They engaged a financial planner to consider their joint financial position.
[15] The claimant’s position is that the respondent always intended to move back to BC as he was born and raised here. The respondent also owns real property in BC on which he planned to build a home. Indeed, the respondent owns a water view property in Powell River and a waterfront property in Desolation Sound. The parties have visited those properties together and discussed plans for their retirement. Additionally, the respondent has family in BC and has taken vacations here regularly. The claimant deposed that the respondent told her it was his intention to return to live in BC.
[16] Meanwhile, the parties lived, worked and vacationed together. They began cohabiting in Toronto in February 2013.
[17] In July 2013, on a trip to Africa, the parties were “married” in a spiritual ceremony and exchanged rings.
[18] On May 5, 2015, the claimant rented an apartment on West 2nd Avenue in Vancouver. While most of her time was spent in Toronto, she commuted back and forth because she was working on a project involving the BC Children’s Hospital, a charity called Transforming Faces, UBC and the National Dental Hospital in Ho Chi Minh City, Vietnam.
[19] The West 2nd Avenue apartment that the claimant rented was in fact for her daughter, but the claimant stayed there while she was commuting back and forth. The claimant began at that time to actively look for a place for the respondent and her to live when they were in Vancouver.
[20] In August 2015, the respondent informed the claimant that he wished to permanently move to Vancouver. The claimant deposed that the plan was that they would sell the condominium in Toronto, rent an apartment in Vancouver for a year and both look for employment opportunities there. The respondent would put his dental practice up for sale and the claimant would go on ahead to Vancouver to settle her mother there and find an apartment for herself and the respondent to live in. They would then commute back and forth between the two cities until the respondent could achieve a full move over to Vancouver.
[21] The claimant deposed that the respondent then put his dental practice up for sale and he travelled to Vancouver on the weekends.
[22] The condominium in Toronto was put up for sale and they quickly received an offer. It was sold in May 2016.
[23] On February 15, 2016, the claimant found a penthouse apartment on York Street in Vancouver and entered into a lease agreement. However, the respondent, after coming out to view it, advised the claimant that he did not want to live there because renovations to the building had not been completed. With the consent of the landlord, the parties were able to cancel the lease. That weekend, the claimant and the respondent went apartment-hunting and found a furnished studio apartment on West 7th Avenue in Vancouver. Together as tenants, they entered into a short-term six-month lease commencing on March 1, 2016, and they each obtained their own key.
[24] The parties also began looking for a more permanent housing solution, including a house in North Vancouver which had an in-law suite. The respondent was open to the idea that the claimant’s mother might come to live with them. The claimant and the respondent would also share information with each other on potential places to live in Vancouver. Examples of those potential places were in evidence.
[25] Ultimately, the claimant found an apartment on Heather Street in Vancouver. Together, the parties leased it for a year to commence on July 15, 2016. The claimant signed the lease on her own, but she deposed that this was only because she was in Vancouver and the respondent was in Toronto at the time. In addition to the lease, she also signed the Strata Property Act Form K - Notice of Tenant’s Responsibilities (“Form K”) and returned it to the landlord’s representative.
[26] In February 2016, the claimant relocated her mother into the West 2nd Avenue apartment. Her mother’s belongings arrived from Toronto, along with some of the claimant’s personal items and some furniture from their condominium in Toronto, which were sent to storage until July 2016. The respondent paid the storage fees.
[27] On May 28, 2016, the parties moved into an apartment located on Walmer Road in Toronto. That day was in fact the last day that the two lived together in Toronto because the claimant then left for Vancouver. The only place they resided together after May 28, 2016 was in BC.
[28] In July 2016, the respondent flew to Vancouver to take possession of the Heather Street apartment with the claimant. At that time, he also signed the Form K for the landlord. The parties commenced living together in the Heather Street apartment in August 2016 and when the respondent’s children came to town, they stayed with them at that apartment.
[29] That summer, the parties travelled to Powell River to visit the respondent’s brother and sister-in-law. In early August, the respondent’s daughter and her son visited from out of country, and the claimant spent time with them at Kitsilano Beach, Granville Island and Stanley Park. The claimant’s mother was also present on those occasions.
[30] When they were vacationing in Vancouver in August 2016, the respondent was wearing his brass wedding ring from the ceremony in Africa while the claimant wore the diamond engagement ring the respondent gave her.
[31] As well, in August 2016, the respondent entered into discussions with a dentist in Vancouver with a view to joining her dental practice.
[32] Matters changed when the respondent, on an outing with the claimant and his family at Granville Island, told the claimant that he was going to draft a “temporary separation agreement” and that he would like her to sign it. This shocked the claimant because she felt it came completely out of the blue. In addition to being taken aback by the respondent’s request, the claimant was also embarrassed by it because he brought this issue up while they were with his family.
[33] In response to the respondent’s invitation for her to join them on a further vacation with his family, she responded to him by text message as follows:
I’m still in shock about the legal separation the moment you chose to tell me. We need to talk more about it and not in front of your kids. Sorry not going.
Instead of accompanying them on the planned trip, the claimant stayed home.
[34] Later on, the claimant asked the respondent if what he said meant that he did not want to continue on with their relationship. The respondent answered “no”. He explained that the only reason he wanted the claimant to sign the temporary separation agreement was that he could deduct, for income tax purposes, the money he was paying to her.
[35] The claimant deposed that the respondent told her that he could no longer give her a salary now that she had full-time employment in Vancouver, but that once he returned to Vancouver, the temporary separation agreement would be torn up.
[36] The respondent further reassured her by text message, in which he continued to press her to join him on the vacation. He said:
I told you it is a tax strategy. You have NO reason to be concerned. Please come.
[37] The parties had a further conversation on August 28, 2016 in which the respondent informed the claimant that he no longer intended to relocate to Vancouver. He asked the claimant to move back to Toronto with him as he no longer wished to commute between the two cities. Having already settled-in in Vancouver, the claimant declined. The parties decided that their relationship could not continue and they separated.
[38] The claimant deposed that the respondent indicated that he would undertake to continue to support her as had been agreed to, and that he would use the proceeds from selling the condominium in Toronto to pay the loan that the claimant had taken out respecting UBC. The respondent, however, ceased sending cheques in December 2016.
[39] The claimant requested that her personal belongings in Toronto be returned to her. The respondent has not cooperated.
[40] The issues before the Court are:
1. Has the respondent attorned to the jurisdiction of BC?
2. Does the Supreme Court have jurisdiction over this family law proceeding?
3. Should the BC Supreme Court decline jurisdiction in favour of Ontario?
[41] The claimant’s position, firstly, is that the respondent, after filing the jurisdictional response (the “Jurisdictional Response”), has attorned to the jurisdiction of BC by failing to file his pleadings within 30 days as required by R. 18-2(5) of the Supreme Court Family Rules, B.C. Reg. 169/2009 [“SCFR”]. Secondly, the claimant argues that the two issues concerning division of debt and spousal support should be decided pursuant to the Family Law Act, S.B.C. 2011, c. 25 [“FLA”]. Lastly, the claimant argues that jurisdiction should not be declined in favour of Ontario.
[42] The respondent’s position is that he has not attorned to BC’s jurisdiction and that his pleadings were filed within 30 days as required by R. 18-2(5). While it is conceded that the FLA applies respecting the division of property or debt, the parties were not habitually residents in BC and, accordingly, any issue of spousal support should be determined pursuant to the laws of Ontario. The respondent also argues that it is appropriate, in the circumstances before the Court, to decline jurisdiction in favour of Ontario.
[43] The first issue that must be considered is whether, by operation of s. 106(2)(b) of the FLA and R. 18-2 of the SCFR, the respondent has attorned to the jurisdiction of BC. The starting point is section 106(2)(b) of the FLA, which provides:
106 (2) Despite any other provision of this Part, the Supreme Court has authority to make an order under this Part only if one of the following conditions is met:
…
(b) both spouses submit, either in an agreement or during the proceeding, to the Supreme Court’s jurisdiction under this Part;
[44] Rule 18-2 of the SCFR provides:
Disputed jurisdiction
18-2 (1) A party who has been served with a notice of family claim, counterclaim or petition in a family law case, whether that service was effected in or outside British Columbia, may, after filing a jurisdictional response in Form F78,
(a) apply to strike out the notice of family claim, counterclaim or petition or to dismiss or stay the family law case on the ground that the notice of family claim, counterclaim or petition does not allege facts that, if true, would establish that the court has jurisdiction over that party in respect of the claim made against that party in the family law case,
(b) apply 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, or
(c) allege in a pleading or in a response to petition that the court does not have jurisdiction over that party in respect of the claim made against that party in the family law case.
Order declining jurisdiction may be sought
(2) Whether or not a party referred to in subrule (1) applies or makes an allegation under that subrule, the party may apply to court for a stay of the family law case on the ground that the court ought to decline to exercise jurisdiction over that party in respect of the claim made against that party in the family law case.
…
Party does not submit to jurisdiction
(5) If, within 30 days after filing a jurisdictional response in a family law case, the filing party serves a notice of application under subrule (1) (a) or (b) or (3) on the parties or files a pleading or a response to petition referred to in subrule (1) (c),
(a) the party does not submit to the jurisdiction of the court in relation to the family law case merely by filing or serving any or all of the following:
(i) the jurisdictional response;
(ii) a pleading or response to petition under subrule (1) (c);
(iii) a notice of application and supporting affidavits under subrule (1) (a) or (b), and
(b) until the court has decided the application or the issue raised by the pleading, petition or response to petition, the party may, without submitting to the jurisdiction of the court,
(i) apply for, enforce or obey an order of the court, and
(ii) defend the family law case on its merits.
[Emphasis added.]
[45] In the case at bar, the Notice of Family Claim was filed on September 1, 2016. The respondent filed a Jurisdictional Response on December 15, 2016, but did not file a fulsome jurisdictional response (“Fulsome Response”) in his pleading until January 17, 2017, which was contained in his Response to Family Claim. The Fulsome Response set out the details of the jurisdictional objections. The claimant argues that the Fulsome Response was filed late, missing the 30-day deadline set out in R. 18-2(5) of the SCFR.
[46] The respondent says that the Fulsome Response was filed on time, based on s. 25 of the Interpretation Act, R.S.B.C. 1996, c. 238. In the alternative, the respondent says that the Rule must be considered in the context of BC’s judicial case conference (“JCC”) regime. Rule 7-1 of the SCFR, as set out below, precludes the filing of the Fulsome Response regardless of the timing of the filing, and as I understand the argument, it would be unfair to require the time limits if one of the two ways to dispute jurisdiction could not be achieved.
[47] The respondent’s argument is that under R. 18-2 of the SCFR, there are two ways of meeting the requirement: firstly by filing an application and, secondly, by filing a pleading. Here, the respondent sought to meet the requirement by filing his Response to Family Claim on January 17, 2017. It was not until May 2, 2017 that an application was set down.
[48] Accordingly, I must decide whether the Fulsome Response filed on January 17, 2017 met the 30-day deadline under R. 18-2(5) of the SCFR, given that the Jurisdictional Response was filed on December 15, 2016.
[49] Section 25 of the Interpretation Act provides guidance on the calculation of time:
25 (1) This section applies to an enactment…
(2) If the time for doing an act falls or expires on a holiday, the time is extended to the next day that is not a holiday.
(3) If the time for doing an act in a business office falls or expires on a day when the office is not open during regular business hours, the time is extended to the next day that the office is open.
(4) In the calculation of time expressed as clear days, weeks, months or years, or as “at least” or “not less than” a number of days, weeks, months or years, the first and last days must be excluded.
(5) In the calculation of time not referred to in subsection (4), the first day must be excluded and the last day included.
(6) If, under this section, the calculation of time ends on a day in a month that has no date corresponding to the first day of the period of time, the time ends on the last day of that month.
(7) A specified time of day is a reference to Pacific Standard time, or 8 hours behind Greenwich mean time, unless Daylight Saving time is being used or observed on that day.
…
[50] Rule 18-2(5) of the SCFR provides that a party must serve a notice of application or file a pleading to dispute jurisdiction under R. 18-2(1) or (3) within 30 days after filing a jurisdictional response in a family law case. To determine whether the Fulsome Response was filed on time, it must first be determined how the 30 days is to be calculated pursuant to R. 18-2(5).
[51] Section 25(4) of the Interpretation Act does not apply given that the language of the Rule omits the words “clear”, “at least” and “not less than”.
[52] Rule 18-2(5) uses the language of “within 30 days”. Section 25(5) of the Interpretation Act operates to exclude December 15, 2016, the “first day” (the day the Jurisdictional Response was filed) but include January 16, 2017, the “last day” of the 30-day period. As noted, the Fulsome Response was filed on January 17, 2017. Accordingly, the “30 days” commenced counting on December 16, 2016. In this scenario, Day 30 was January 14, 2017, which is a Saturday. Given that Saturday is a weekend day, the expiry date was actually extended to Monday, January 16, 2017, pursuant to s. 25(3) of the Interpretation Act: “If the time for doing an act in a business office falls or expires on a day when the office is not open during regular business hours, the time is extended to the next day that the office is open.” Thus, January 16, 2017 was the expiry date for the 30-day period.
[53] The BC Court of Appeal, in reasons written by Frankel J.A., recently examined the correct interpretation of s. 25(5) in TD Bank v. British Columbia (Commissioner of Income Tax), 2017 BCCA 159. The Court of Appeal was dealing with a provision of the Income Tax Act, R.S.B.C. 1996, c. 215, which required the Toronto Dominion Bank to file a income tax return “within 18 months after the end of [its 2012] taxation year”: para. 36. The parties agreed that “the date by which the return had to be filed is to be determined having regard to s. 25(5) of the Interpretation Act, under which ‘the first day must be excluded’”: para. 36. The parties disagreed on when the “first day” was for the purposes of time calculation.
[54] The Court of Appeal discussed the formulation used in the provision of the Income Tax Act and how it operates, noting that the language used is common in BC statutes:
[38] In its generic form, the language used in s. 28(4) to express the limitation period for filing a return can be stated as ‘within a period after a triggering event’.
[39] There are numerous provisions in the Income Tax Act, R.S.B.C. 1996, c. 215, that require a document to be filed or something to be done within a stated period after the end of a taxation year [examples omitted] … Also, s. 6(1) of the Logging Tax Act, R.S.C. 1999, c. 277, requires a tax return to be filed “within 6 months after the end of the taxation year”.
[40] The ‘within a period after a triggering event’ formulation is also found in a multitude of British Columbia statutes in which the time within which something must be filed or done is triggered by other than the end of a taxation year. Some examples are:
(a) Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2, s. 23(3): “A supplier must give a copy of the future performance contract to the consumer within 15 days after the contract is entered into”;
(b) Court of Appeal Act, R.S.B.C. 1996, c. 77, s. 15(2): “A cross appeal must be brought within 15 days after a respondent is served with the notice of appeal”;
(c) Employee Investment Act, R.S.B.C. 1996, c. 112, s. 11(2): “An employee venture capital corporation must establish a permanent establishment in Canada within 30 days after being registered and must afterward maintain a permanent establishment in Canada”; and
(d) Forest Act, R.S.B.C. 1996, c. 157, s. 75.06(2)(a): a request for relief from a penalty must “be submitted within 90 days after the date the penalty is imposed”.
[Emphasis in original.]
[55] Frankel J.A. specifically noted at the end of para. 40 that the “within a period after a triggering event” formulation is found throughout the SCFR. This is the formulation used in R. 18-2(5) of the SCFR: “within 30 days after filing a jurisdictional response”.
[56] In Todoruk v. British Columbia (Land Title and Survey Authority), 2016 BCSC 2241, Mr. Justice Dley considered whether s. 25(4) of the Interpretation Act applied to a provision of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13:
[10] In order to base the calculation on clear days, the calculation must be expressed as “clear days” or as “at least” or “not less than”. The wording of s. 10(1) of WESA refers to surviving “by five days”. I do not take that to be an expression of clear days. As a result, I decline to count the days as clear days, which would exclude the first and last days.
[11] Section 25(5) is the applicable provision in these circumstances. The language used in the section is similar to the language that might be used in a testamentary instrument where distribution is based on surviving the deceased for “a period of 30 days”. That language has been construed to fall within the ambit of s. 25(5): Day Estate at para. 8.
[57] The language of “by five days” referred to in Todoruk is analogous to the language of “within 30 days” in R. 18-2(5) of the SCFR.
[58] I find that, based on the relevant case law dealing with s. 25(5) of the Interpretation Act, the applicability of these provisions to statutory time calculations in BC, and the use of the modifier “clear” in other BC statutes expressing time periods, s. 25(5) applies to R. 18-2(5) of the SCFR. As a result, December 15, 2016, the first day, on which the “triggering event” occurred, should be excluded from the time of calculation, and January 16, 2017, the last day of the 30-day period, should be included. Since January 16, 2017, the “last day”, is included in the calculation, I determine that the Fulsome Response filed January 17, 2017 was filed out of time, given that s. 25(5) of the Interpretation Act applies.
[59] Respecting the setting down of the application regarding jurisdiction, the respondent argues that he could not have complied because the requirement for a JCC would have precluded him in any event from bringing the application.
[60] Rule 7-1 of the SCFR provides:
…
Requirement to hold judicial case conference
(2) Subject to subrules (3) and (4), unless a judicial case conference has been conducted in a family law case, a party to the family law case must not serve on another party a notice of application or an affidavit in support.
[61] However, the SCFR contemplate some applications being brought:
Applications that may be brought before a judicial case conference
(3) A party to a family law case may file and serve a notice of application and supporting affidavits in respect of any of the following applications even though a judicial case conference has not been conducted in the family law case:
...
(b) An application for an order under section 91 of the Family Law Act restraining the disposition of any property at issue;
(b.1) an application for an order under section 32 or 39 of the Family Homes on Reserves and Matrimonial Interests or Rights Act (Canada) or a First Nation's law made under that Act with respect to an equivalent matter;
(c) an application for a consent order;
(d) an application without notice;
(e) an application to change, suspend or terminate a final order;
(f) an application to set aside or replace the whole or any part of an agreement;
(g) an application to change or set aside the determination of a parenting coordinator.
Court may relieve party from requirement of subrule (2)
(4) On application by a party, the court may relieve a party from the requirement of subrule (2) if
(a) it is premature to require the parties to attend a judicial case conference,
(b) it is impracticable or unfair to require the party to comply with the requirements of subrule (2),
(c) the application referred to in subrule (2) is urgent,
(d) delaying the application referred to in subrule (2) or requiring the party to attend a judicial case conference is or might be dangerous to the health or safety of any person, or
(e) the court considers it appropriate that the party be relieved from that requirement.
Thus, pursuant to R. 7-1(4) of the SCFR, the respondent would not have been automatically precluded by the provisions requiring a JCC.
[62] The respondent argues that, since R. 7-1 of the SCFR only allows certain applications to be brought prior to the completion of a JCC, he would have been precluded from filing an application respecting jurisdiction. Accordingly, the Court must consider this as well in assessing whether Fulsome Response was filed within the 30-day period.
[63] While it is true that R. 7-1(3) of the SCFR does not include applications made pursuant to R. 18-2(1) or (3) as being permitted to be brought prior to a JCC, R. 7-1(4) gives the court discretion to relieve a party from the requirement in R. 7-1(2), if appropriate.
[64] Rule 7-1(5) provides that, to bring an application for relief under subrule (4), “a party must file (a) a requisition in Form F17, and (b) a letter signed by the party or his or her lawyer setting out the reasons why the relief is sought.”
[65] The respondent is raising the requirement to hold a JCC to argue that, even if the Fulsome Response had not been filed and instead this matter had been dealt with by way of an application, the Fulsome Response could not have been filed anyway. This argument must be rejected.
[66] In respect of the issue of attornment, the claimant additionally relied upon the decision in Blazek v. Blazek, 2009 BCSC 1693 at paras. 47, 49 and 61:
[47] Since the [CJPTA] Act was proclaimed in 2006, the question of whether a defendant, having attorned to the jurisdiction or not having challenged the territorial jurisdiction of the court as required by the provisions of Rule 14(6.4) within 30 days of filing an appearance, can then ask the court to decline jurisdiction on the basis of forum non conveniens remains a problematic one.
…
[49] The plaintiff sought leave to appeal. Low J.A. dismissed the application on September 8, 2006. He stated at para. 9:
[9] There has been no case to date in this Court interpreting the purpose and scope of the new R. 14, but I am not persuaded that there is a meritorious argument that Preston J. erred in not applying R. 14(6.4) to R. 14(6.1). Rule 14(6.4) specifically mentions R. 14(6) and R. 14(6.2) (the latter deals with setting aside the originating process or service of it and has no application to the matter at hand). The sub-rule makes no mention of R. 14(6.1) and it is clear that the intention of the drafters was to preserve the common law rule that the right to challenge jurisdiction on the basis of forum non conveniens expires with attornment. To use the language of R. 14(6.4), once the defendant “submits to the jurisdiction of the court” he is precluded from asking the court to decline jurisdiction as opposed to contending that the court lacks jurisdiction as a matter of law.
…
[61] On the basis of the above, and on the basis that O'Brien was a considered decision, I find that the defendant has attorned to the jurisdiction and having done so, his application to have the court decline jurisdiction must be dismissed.
Thus, once a party has attorned to the jurisdiction, he or she is barred from arguing that there is a more appropriate forum.
[67] The claimant submits that the steps taken by the respondent, which include addressing the merits of the issues in this application, making discovery requests and attending a JCC, together with his failure to comply with R. 18-2(5) of the SCFR, provide evidence that the respondent has attorned to the jurisdiction of BC. I find that the respondent has not met the requirements for disputing jurisdiction. I further find that he has attorned to the jurisdiction of BC. In the event that I am wrong, I will go on to consider which jurisdiction and which law is applicable in respect of the property and debt as well as spousal support issues.
[68] The onus of establishing territorial competence, that is, which law applies, is on the party seeking to establish jurisdiction: Cockerham v. Hanc, 2014 BCSC 2432 at para. 31 and Aleong v. Aleong, 2013 BCSC 1428 at para. 80.
[69] It is important to note that it is not the goal of this Court to make findings of fact on disputed evidence nor it is proper to decide the merits of the case or do an assessment of the evidence, except as necessary to determine the issues of territorial jurisdiction and forum non conveniens: see Spar Aerospace Ltd. v. American Mobile Satellite Corp., 2002 SCC 78 at paras. 31–32 and Fairhurst v. De Beers Canada Inc., 2012 BCCA 257 at para. 20, leave to appeal ref’d, [2012] S.C.C.A. No. 367.
[70] Under s. 106(2) of the FLA, the BC Supreme Court has jurisdiction to make an order under Part 5 (Property Division) if any one of certain conditions is met:
106 (2) Despite any other provision of this Part, the Supreme Court has authority to make an order under this Part only if one of the following conditions is met:
…
(c) either spouse is habitually resident in British Columbia at the time a proceeding under this Part is started;
(d) there is a real and substantial connection between British Columbia and the facts on which the proceeding under this Part is based;
[71] In the case at bar, there is property and family debt in both BC and Ontario, including the claimant’s UBC pension, the respondent’s real property in BC and the debt that the claimant accrued when she did not return to her UBC teaching position. There are also the claimant’s furnishings in Ontario and the respondent’s accounts in Ontario. However, there are clearly debts in connection to BC.
[72] In any event, the respondent has conceded that this Court has jurisdiction under Part 5 of the FLA to deal with property and debt based on s. 106(2)(c).
[73] Respecting habitual residence, in Parker v. Mitchell, 2016 BCSC 723, Justice N. Smith at para. 34 quoted with approval the following definition of habitual residence:
[34] The court adopted the following definition of "habitual residence" from Albert Dicey and John Morris, The Conflict of Laws, 10th ed. (London: Stevens, 1980) vol. 1 at 144-45:
It is evident that “habitual residence” must be distinguishable from mere “residence”. The adjective “habitual” indicates a quality of residence rather than its length. Although it has been said that habitual residence means “a regular physical presence which must endure for some time”, it is submitted that the duration of residence, past or prospective, is only one of a number of relevant factors; there is no requirement that residence must have lasted for any particular minimum period.
It has been said that an element of intention to reside is required, though not determinative. It is clear that this element cannot be required in all cases, for a young child is treated as having an habitual residence for adoption purposes. The better view seems to be that evidence of intention may be important in particular cases, e.g. in establishing habituation when the actual period or periods of residence have been short, but is not essential.
In appropriate cases, it would seem that a person could be without any habitual residence; habitual residence in two or more places would also seem possible. Although it has been said that habitual residence is “something more than” ordinary residence, it is not clear that this is the case. In practice it appears that habitual residence will be a very similar notion, but freed from the case-law which has grown up around the term ordinary residence. It is greatly to be hoped that the courts will resist the temptation to develop restrictive rules as to habitual residence, so that the facts and circumstances of each case can be assessed free of presuppositions and presumptions.
[74] I find that, pursuant to s. 106(2)(c), the claimant was habitually resident in BC when this proceeding was started. Thus, the court in BC has jurisdiction to hear the property or debt division issues under Part 5.
[75] The respondent argues that the law of Ontario ought to be applied with respect to the claimant’s spousal support claim. The claimant argues that the FLA is applicable.
[76] Since there are no provisions in the FLA governing jurisdictional disputes with respect to support, the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 [“CJPTA”] applies to determine this issue.
[77] The importance of the determination of this issue arises from the duration of the period in which the parties were residing together as a common-law couple. If the FLA applies, the claimant could advance her claim for spousal support. If Ontario law applies, the claimant would be restricted to applying for relief in the nature of constructive trust claims.
[78] Section 10 of the CJPTA provides:
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
(a) 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,
(b) concerns the administration of the estate of a deceased person in relation to
(i) immovable property in British Columbia of the deceased person, or
(ii) movable property anywhere of the deceased person if at the time of death he or she was ordinarily resident in British Columbia,
(c) is brought to interpret, rectify, set aside or enforce any deed, will, contract or other instrument in relation to
(i) property in British Columbia that is immovable or movable property, or
(ii) movable property anywhere of a deceased person who at the time of death was ordinarily resident in British Columbia,
(d) is brought against a trustee in relation to the carrying out of a trust in any of the following circumstances:
(i) the trust assets include property in British Columbia that is immovable or movable property and the relief claimed is only as to that property;
(ii) that trustee is ordinarily resident in British Columbia;
(iii) the administration of the trust is principally carried on in British Columbia;
(iv) by the express terms of a trust document, the trust is governed by the law of British Columbia,
(e) concerns contractual obligations, and
(i) the contractual obligations, to a substantial extent, were to be performed in British Columbia,
(ii) by its express terms, the contract is governed by the law of British Columbia, or
(A) is for the purchase of property, services or both, for use other than in the course of the purchaser's trade or profession, and
(B) resulted from a solicitation of business in British Columbia by or on behalf of the seller,
(f) concerns restitutionary obligations that, to a substantial extent, arose in British Columbia,
(g) concerns a tort committed in British Columbia,
(h) concerns a business carried on in British Columbia,
(i) is a claim for an injunction ordering a party to do or refrain from doing anything
(ii) in relation to property in British Columbia that is immovable or movable property,
(j) is for a determination of the personal status or capacity of a person who is ordinarily resident in British Columbia,
(k) is for enforcement of a judgment of a court made in or outside British Columbia or an arbitral award made in or outside British Columbia, or
(l) is for the recovery of taxes or other indebtedness and is brought by the government of British Columbia or by a local authority in British Columbia.
[79] The overarching consideration at this initial stage of a jurisdictional challenge is that the plaintiff only needs to show an “arguable case” with respect to the facts supporting jurisdiction. Once shown, the plaintiff is entitled to the choice of forum: see JTG Management Services Ltd. v. Bank of Nanjing Co. Ltd., 2015 BCCA 200 at paras. 19–20:
[19] …
[33] In Stanway v. Wyeth Pharmaceuticals Inc., 2009 BCCA 592 (leave to appeal refused, [2010] S.C.C.A. No. 68) (“Stanway”), the Court of Appeal considered the issue of a real and substantial connection under s. 10 of the Court Jurisdiction and Proceedings Transfer Act, [S.B.C. 2003, c. 28] K.J. Smith J.A. stated for the Court:
[22] The presumption of a real and substantial connection in s. 10 is a mandatory presumption with basic facts. The basic facts are those set out in s. 10(a) through (I), which are taken to be proven if they are pleaded. While the presumption is rebuttable, it is likely to be determinative in almost all cases.
…
[70] It was not necessary for the plaintiff to support these allegations with evidence except to the extent their truth was challenged by the evidence of the US defendants. ...
[34] The plaintiff need only show an “arguable case” that they can establish facts by affidavit which, if true, would provide the foundation for the Court's jurisdiction. Accordingly, the Court is not charged at this stage with assessments of truth, only a determination of whether there are facts that provide an arguable case for jurisdiction before the Court. As stated by Mr. Justice Chiasson in Purple Echo Productions, Inc. v. KCTS Television, 2008 BCCA 85 (“Purple Echo”):
[34] In my view, consonant with the comments of Smith J.A. in [Roth v. Interlock Services, Inc., 2004 BCCA 407, 33 B.C.L.R. (4th) 60] and those of Mackenzie J.A. In Furlan v. Shell Oil Co., 2000 BCCA 404, 77 B.C.L.R. (3d) 35, referred to in MTU Maintenance Canada Ltd. v. Kuehne & Nagel International Ltd., 2007 BCCA 552, [2007] B.C.J. No. 2433 (QL), where jurisdictional facts are not pleaded, affidavit evidence can be adduced to meet the requirement of the Rule. It would be a startling departure from existing jurisprudence if the consideration of jurisdiction were confined solely to the pleadings with no opportunity for a plaintiff to support jurisdiction with evidence. It also is my view that the nature of the inquiry does not change merely because evidence is adduced. The objective is to determine whether there are facts alleged, which if true, would found jurisdiction. The court is not charged with the task of determining whether the facts are true. A plaintiff need show only an arguable case that they can be established.
[35] In Purple Echo, the Court of Appeal was considering an application under what was then Rule 14(6), now Rule 21-8(1) of the Supreme Court Civil Rules. On such an application a party seeking to displace the Court’s presumption of territorial competence must satisfy the Court that it is ‘“plain and obvious’ that the action as pleaded could not lie within the territorial competence of a British Columbia court" (Fairhurst [2012 BCCA 257] at para. 32). This burden on the defendant to displace territorial competence once found is a significant one, as the mandatory presumption of a real and substantial connection, on basic facts, is likely to be determinative in almost all cases (Stanway at para. 22).
[36] In Environmental Packaging Technologies Ltd. v. Rudjuck, 2012 BCCA 343 at para. 37 (“Environmental Packaging”), Chiasson J.A. for the Court further reaffirmed this view stating:
The burden of showing that the jurisdictional facts, if proven, establish territorial competence is not great. Once it is established that the court has territorial competence, a plaintiff is entitled to its choice of forum. The burden is on the defendant to displace that choice.
…
[38] It is important to recall that on an application such as this, the judge is to “refrain from evaluating the evidence of the parties unless the facts are specifically contested by the parties” and it is improper to require the application judge to “prematurely decide the merits of the case” (Spar Aerospace at para. 32). Rather the motions judge must take as true any basic facts plead that establish a mandatory presumption under s. 10 of the Court Jurisdiction and Proceedings Transfer Act (Stanway at para. 22); or, if the facts are contested, determine whether the plaintiff has shown [an] arguable case that the facts can be established (Purple Echo at para. 34).
[39] Accordingly, if the plaintiff pleads facts that fall within one of the enumerated presumptions of s. 10 of the Court Jurisdiction and Proceedings Transfer Act, the British Columbia Court has territorial competence to hear the action.
[20] Ultimately, the judge concluded that territorial competence had been established. She stated:
[58] I am satisfied that, in this matter, territorial competence is presumed to exist in respect of the plaintiff. First, this matter concerns a business carried on in British Columbia (s. 10(h) of the Court Jurisdiction and Proceedings Transfer Act). This is disputed, as the defendant argues that the plaintiff has sold its business and is now a mere holding company. There is no dispute that at the time the letter of credit was entered into, the plaintiff carried on business in this Province. Also, the plaintiff in the pleadings, supported by the affidavit material, denies that the cause of action was sold and maintains its right to carry on with this action.
[59] Second, I find that there is an arguable case that the contractual obligations at issue were to be, to a substantial extent, performed in British Columbia. It must be remembered that the threshold of establishing territorial competence is not a high one. The advising bank was in British Columbia, the advise-through bank was in British Columbia, and negotiation and receipt of payment were to take place at a bank in British Columbia.
[60] Even if the above presumption had not been established, I find that the facts as pleaded by the plaintiff and discussed above establish an arguable case that there is a real and substantial connection to British Columbia in this case. I find, applying Purple Echo and the case law following upon that decision, that the defendant has not shown that it is plain and obvious that this Court does not have jurisdictional competence.
See also Kendregan v. Kendregan, 2009 BCSC 23 at para. 62.
[80] In JTG Management Services at para. 19, the Court of Appeal stated that it must be “plain and obvious” that the action could not lie within the territorial competence of a BC court. While it is a rebuttable presumption, it is likely to be determinative in almost all cases.
[81] At para. 19 of JTG Management Services, the Court of Appeal also dealt with presumptions under s. 10 of the CJPTA.
[82] Under the CJPTA, if jurisdiction is established, a claimant is entitled to their choice of forum and the burden is on the respondent to show a clearly better forum.
[83] In this regard, the respondent relies on Cockerham at para. 61:
[61] Other than the engagement ring that Ms. Cockerham kept and a small RRSP that she has now cashed and spent, the property and debts at issue are all located and based in Ontario. Mr. Hanc’s real and other property is all located in Ontario. Ms. Cockerham’s claims, as they have been pled, relate substantially to that real property, but also include claims to Mr. Hanc’s RRSPs, pensions, chattels, insurance, savings, business interests, options, shares, and club memberships. Neither party owns any real property in British Columbia.
[84] In Cockerham, Justice Donegan was considering a similar application as in the case at bar. She applied s. 106(4) of the FLA and declined jurisdiction in favour of Ontario.
[85] Donegan J. noted that if she was wrong and s. 106 of the FLA did not apply in the case, jurisdiction would then be determined by the provisions of the CJPTA. She noted that, given the test for territorial competence articulated in s. 3(e) of the CJPTA, it would result in, practically speaking, the same conclusion.
[86] Section 1 of the CJPTA provides as follows:
1 In this Act:
…
“territorial competence” means the aspects of a court's jurisdiction that depend on a connection between
(a) the territory or legal system of the state in which the court is established, and
(b) a party to a proceeding in the court or the facts on which the proceeding is based.
[87] Section 3(e) of the CJPTA provides as follows:
3 A court has territorial competence in a proceeding that is brought against a person only if
…
(e) there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based.
[88] Donegan J. in Cockerham considered s. 10 of the CJPTA. She set out the factors at paras. 70 and 71 as follows:
[70] Section 10 of the CJPTA enacts the presumption that a real and substantial connection exists in certain specified circumstances. None of those listed circumstances exist in this case. However, s. 10 expressly provides that the listed presumptive circumstances do not limit the right of the claimant to prove other circumstances that would constitute a real and substantial connection between British Columbia and the facts upon which the proceeding is based.
[71] Ms. Cockerham relies upon the following circumstances in support of her position that this court should find a real and substantial connection between British Columbia and the facts in this case:
1. Her physical presence in and close family ties to British Columbia;
2. The location of two of the potential family properties, the engagement ring and her RRSPs (now cashed), in British Columbia;
3. Potential witnesses (her family members) located in British Columbia;
4. Her servicing of the potential family debt, the Royal Credit Line Agreement for Students, in British Columbia; and
5. Her financial inability to conduct this litigation elsewhere.
[89] The circumstances before the Court here are different than those in Cockerham. In Cockerham, neither party owned real property in BC; the only asset of the parties was an engagement ring and funds from a Registered Retirement Savings Plan, which had been spent; one individual had no connection to BC whatsoever; the only connection was the other party’s presence in BC having moved there post-separation; the significant family debt of the parties was based on a contract made in Ontario; and the only place the parties ever lived together was in Ontario: see paras. 62 and 75–76.
[90] Consequently, Donegan J. found no circumstances constituting a real and substantial connection between the subject matter of the litigation and BC such that the respondent could reasonably expect to have the legal proceedings occur in BC.
[91] In the case at bar, it does not matter that the parties lived together most of the time in another province. That is not a presumptive connecting factor. At para. 74 of Cockerham, Donegan J. referenced Justice Adair’s decision in Aleong:
[74] In Aleong, Madam Justice Adair rejected a number of circumstances as presumptive connecting factors following her thorough analysis of the law in this area. Mr. Hanc summarized it well at paragraph 21 of his notice of application when he wrote:
[21] The Court in Aleong rejected the following as presumptive connecting factors:
a. The Claimant’s presence in British Columbia;
b. The fact that the parties had resided in British Columbia for the majority of their 41 year marriage;
c. The parties’ assets were developed in British Columbia;
d. The physical presence of the parties’ children and grandchildren in British Columbia; and
e. The emotional ties between parents, their children and grandchildren.
[92] I find that the parties’ affidavit evidence in the case at bar establishes an arguable case that there is a real and substantial connection between the facts of this proceeding and BC. There are debts with a connection to BC, as well as real property. There is the agreement between the parties respecting support that was being performed in BC.
[93] From the parties’ affidavit evidence, they last lived together in BC and did not live together in Ontario after May 28, 2016. The evidence of the claimant in respect of the respondent coming out to BC was that the parties stayed together in August 2016 and were not separated on May 28, 2016. I note the following facts:
[94] In all of the circumstances, I find that the court has territorial competence to hear the spousal support claim because there is a real and substantial connection between BC and the facts on which this proceeding is based, pursuant to s. 3(e) of the CJPTA. I find that the claimant has established that the BC Supreme Court has jurisdiction with respect to the spousal support issue.
[95] The respondent argues that the BC Supreme Court should decline jurisdiction in favour of Ontario with respect to both spousal support and division of property and debt. The respondent, as the party raising an issue of forum non conveniens, has the burden of showing why the court should decline to exercise its jurisdiction and displace the forum chosen by the claimant: Jiang v. Shi, 2017 BCCA 276 [Jiang] at para. 27.
[96] I agree with the approach taken by N. Smith J. in Parker, where the court, as here, was dealing with a jurisdictional dispute involving both property and spousal support claims. The court noted at paras. 28–29:
[28] The fact that the court has jurisdiction does not mean it will be exercised. Section 11 of the CJPTA and s. 106(4) and (5) of the FLA both give the court discretion to decline jurisdiction if the matter would be more appropriately decided by a court outside British Columbia.
[29] One of the factors that must be considered is the law to be applied. It is therefore necessary to deal with that issue before returning to the question of how the discretion will be exercised.
[97] Section 11 of the CJPTA provides:
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.
[98] Sections 106(4) and (5) of the FLA provide:
106 (4) Despite subsection (2), a court may decline to make an order under the Part if the court, having regard to the interests of the spouses and the ends of justice, considers that it is more appropriate for jurisdiction to be exercised outside British Columbia.
(5) In determining whether to decline jurisdiction under subsection (4), the court must consider all of the following:
(a) [Repealed 2014-9-15.]
(b) the relative convenience and expense for the spouses and their witnesses;
(c) if section 108 [choice of law rules] applies, the law to be applied to issues in the proceeding;
(d) the desirability of avoiding multiple proceedings or conflicting decisions in different courts or tribunals;
(e) the extent to which an order respecting property or debt
(i) made in another jurisdiction would be enforceable in British Columbia, and
(ii) made in British Columbia would be enforceable in another jurisdiction;
(f) the fair and efficient working of the Canadian legal system as a whole;
(g) any other circumstances the court considers relevant.
[99] The factors to be considered under s. 106 of the FLA and s. 11 of the CJPTA with respect to whether the court should decline jurisdiction are essentially identical. The FLA contains guidance on how “the law to be applied” is to be determined, and my analysis will begin there.
[100] Sections 107 and 108 of the FLA provide:
107 The proper law of the relationship between the spouses for the purposes of section 108 [choice of law rules] is
(a) the internal law of the jurisdiction in which the spouses had their most recent common habitual residence,
(b) if the jurisdiction under paragraph (a) is outside Canada and is not the jurisdiction most closely associated with the relationship between the spouses, the internal law of the jurisdiction that is most closely associated with the relationship between the spouses, or
(c) if the spouses did not have a common habitual residence, the internal law of the jurisdiction in which the spouse making an application for an order under this Part was most recently habitually resident.
Choice of law rules
108 (2) If the Supreme Court takes jurisdiction under this Division, the Supreme Court must act in accordance with the rules set out in this section.
(3) Subject to subsection (4), if spouses make an agreement respecting the division of property or debt, the substantive rights of the spouses in a proceeding under this Part are determined by the agreement.
(4) The enforcement of an agreement under subsection (3) is subject to any restriction that the proper law of the relationship places on the ability of spouses to determine the division of property or debt by agreement.
(5) Subject to subsection (3), if the spouses' first common habitual residence during the relationship between the spouses was in a jurisdiction in which a regime of community of property applies, property owned or acquired and debt owing or acquired during the relationship between the spouses that is property or debt to which the regime of community of property applies must be divided at the end of the relationship between the spouses according to that regime of community of property.
(6) If neither subsection (3) nor (5) applies, the substantive rights of spouses in a proceeding under this Part must be determined according to the proper law of the relationship.
[101] The Court of Appeal in Jiang described how ss. 107 and 108 factor into the court’s analysis on whether it should exercise its discretion to decline jurisdiction under s. 106(5):
[30] Under s. 106(5)(c), one of the factors that must be considered in determining whether to decline jurisdiction is “if section 108 [choice of law rules] applies, the law to be applied to issues in the proceeding”. Thus, to meet the mandatory nature of s. 106(5), the judge must consider whether s. 108 applies and if so, how.
[31] Section 108 contains three choice of law rules that are to be applied in a hierarchical manner.
[32] First, if the parties have made an agreement respecting the division of property, the substantive rights of the parties are governed by that agreement.
[33] Second, if the parties have not made such an agreement, the judge must consider whether the spouses’ “first common habitual residence” was in a jurisdiction where a regime of community of property applies. If so, property division must be made in accordance with that regime of community of property.
[34] If neither of these considerations applies, the substantive rights of the parties must be determined according to the proper law of the relationship, which is defined in s. 107.
[35] Section 107 then sets out its own set of rules for determining the proper law of the relationship. Once that has been determined, that law becomes one of the factors for consideration as to whether to decline jurisdiction, pursuant to s. 106(5)(c).
[102] Here, the parties had an agreement in place that the respondent would pay the claimant a salary and certain of her debts. However, the agreement was silent as to how property or debt would be divided upon a breakdown in the parties’ relationship. As a result, the agreement cannot be considered an “agreement respecting the division of property or debt”, and s. 108(3) cannot apply.
[103] The parties agree that Ontario is not a “regime of community of property”, and that s. 108(5) does not apply. Thus, pursuant to s. 108(6), the parties’ substantive rights must be determined according to the “proper law of the relationship” under s. 107.
[104] The inquiry begins with s. 107(a), which states that the proper law of the relationship between the spouses is “the internal law of the jurisdiction in which the spouses had their most recent common habitual residence”. The BC courts, adopting Ontario case law, have defined “most recent common habitual residence” as “the place where the spouses most recently lived together as husband and wife and participated together in everyday family life”: Jiang at para. 54; Parker at para. 33. In BC, the definition applies to common law spouses as well as married couples.
[105] In Parker at para. 34, N. Smith J. quoted with approval the following definition of “habitual residence” from Albert Dicey and John Morris, The Conflict of Laws, 10th ed. (London: Stevens, 1980) vol. 1 at 144–45:
It is evident that “habitual residence” must be distinguishable from mere “residence”. The adjective “habitual” indicates a quality of residence rather than its length. Although it has been said that habitual residence means “a regular physical presence which must endure for some time”, it is submitted that the duration of residence, past or prospective, is only one of a number of relevant factors; there is no requirement that residence must have lasted for any particular minimum period.
It has been said that an element of intention to reside is required, though not determinative. It is clear that this element cannot be required in all cases, for a young child is treated as having a habitual residence for adoption purposes. The better view seems to be that evidence of intention may be important in particular cases, e.g. in establishing habituation when the actual period or periods of residence have been short, but is not essential.
In appropriate cases, it would seem that a person could be without any habitual residence; habitual residence in two or more places would also seem possible. Although it has been said that habitual residence is “something more than” ordinary residence, it is not clear that this is the case. In practice it appears that habitual residence will be a very similar notion, but freed from the case-law which has grown up around the term ordinary residence. It is greatly to be hoped that the courts will resist the temptation to develop restrictive rules as to habitual residence, so that the facts and circumstances of each case can be assessed free of presuppositions and presumptions.
[106] The court in Parker further noted at para. 37:
[37] While the words “ordinary” and “habitual” may be synonymous, or nearly so, and parties may have more than one common habitual residence, the plain meaning of the words used in s. 107 is that only one of those residences can be the most recent. That is also consistent with the manifest intention of ss. 107 and 108 to identify a single system of law that governs a specific relationship.
[107] Based on the affidavit evidence before the Court, I find that the parties’ most recent common habitual residence was in BC. As set out above, the claimant’s pleaded evidence demonstrates that the parties most recently lived together as spouses in BC.
[108] As noted in Parker, when determining the parties’ habitual residence, intent to reside is not a determinative factor but an important consideration when the periods of residence have been short. That is the case here. The evidence showing the respondent’s intention to reside in BC includes:
[109] As a result of my finding regarding the parties’ most recent common habitual residence, I find that the proper law of the relationship, pursuant to s. 107, is the BC FLA.
[110] As set out by Justice Hunter for the BC Court of Appeal in Jiang at para. 4:
[4] In deciding whether to decline jurisdiction under s. 106(5) of the FLA, a court must consider the relative convenience and expense for the spouses and their witnesses, the law to be applied to issues in the proceeding, the desirability of avoiding a multiplicity of proceedings or conflicting decisions, the enforceability of orders made in the alternative jurisdictions, the fair and efficient working of the Canadian legal system as a whole, and any other circumstances the court considers relevant.
As noted above, these factors are nearly identical under s. 11 of the CJPTA.
[111] The respondent argues that the BC Supreme Court should decline jurisdiction in favour of Ontario due to inconvenience and expense for him and the parties’ witnesses. While the respondent claims that all witnesses of the parties’ relationship are in Ontario, I do not find that to be so. The claimant’s mother and the respondent’s brother and sister-in-law reside in BC, as well as those individuals with whom the respondent communicated with respect to seeking employment in BC.
[112] The respondent also argues that proof of his income requires witnesses from Ontario. However, no specifics of the evidence of witnesses in Ontario were provided in the materials, nor were there any details on what issues their evidence would be relevant to. In spousal support cases, the income of the payor is generally established through income tax returns and financial statements. In my view, accordingly, it would not be necessary for the respondent to establish his income through witnesses in Ontario.
[113] The claimant’s financial situation is a factor that militates in favour of this proceeding continuing in BC. She is not as financially well-off as the respondent, who has an acknowledged income of $265,165 for 2015. Furthermore, the $60,000 that the respondent paid as salary to the claimant also forms part of his income, making it a total of $325,165.
[114] Additionally, the issues involve the parties’ real properties in BC and the claimant’s pension with UBC, both of which would require evaluation/appraisal.
[115] Ontario will not entertain the claim for either property or debt-sharing for unmarried spouses. However, the claimant can pursue them under the BC FLA, as it applies to unmarried spouses.
[116] All of these factors militate in favour of the claimant with respect to “the relative convenience and expense for the spouses and their witnesses”.
[117] Given my finding that the law of BC applies to the issues in the proceeding, the “law to be applied” factor also militates in favour of the claimant.
[118] I find that there is no juridical advantage to proceeding with the matter in Ontario. It would cause a multiplicity of proceedings to split the spousal support and property division issues. A single legal proceeding would be consistent with a fair and efficient process towards the determination of these legal matters.
[119] In conclusion, I decline to exercise the court’s discretion to decline jurisdiction over both issues in this proceeding.
[120] In conclusion, I find that the respondent has attorned to the jurisdiction of BC and, should I be wrong in that, this Court has jurisdiction to hear the property division and spousal support issues between the parties. I further find that the law of BC applies to the parties’ relationship, and that this Court should not decline jurisdiction in favour of the Ontario courts.
[121] If the parties are unable to agree with respect to costs they may arrange to address costs by contacting Supreme Court Scheduling within 60 days of these reasons.
“Maisonville J.”