IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Olney v. Rainville,

 

2008 BCSC 753

Date: 20080403
Docket: S074024
Registry: Vancouver

Between:

Shauna Lynne Olney

Petitioner

And:

Pierre Jean Rainville

Respondent

Before: The Honourable Mr. Justice Kelleher

Oral Reasons for Judgment

In Chambers
April 3, 2008

Counsel for the Petitioner:

G.A. Lang

Counsel for the Respondent:

P.R. Albi
M. Campbell

 

Place of Hearing:

Vancouver, B.C.

 

[1]                THE COURT:† The petitioner seeks a declaration that the father of her son, Nicolas Pierre Olney-Rainville, is Stewart David MacDonald.† She also seeks an order changing the childís name to Nicolas Olney MacDonald or, alternatively, Nicolas Olney.

[2]                This is an application by the respondent.† He seeks a dismissal of the petition on the grounds that this court does not have jurisdiction to make the order (jurisdiction simpliciter) or, alternatively, that if it does have jurisdiction, it should decline jurisdiction in favour of the Superior Court of Quebec (the forum conveniens).

[3]                The petitioner was born in Vancouver on July 23, 1963.† She was raised in and attended school in Vancouver.† She obtained her law degree from the University of British Columbia and commenced a clerkship at the Supreme Court of Canada in Ottawa when she graduated in 1987.

[4]                The respondent clerked at the Supreme Court of Canada at the same time.† That is where the petitioner and respondent met and began a relationship.† At the end of the clerkship, the petitioner returned to British Columbia and completed her articles with a Vancouver law firm.† The respondent moved to England and pursued graduate studies at Oxford.

[5]                The petitioner became a member of the British Columbia Bar in 1989 and then in the fall moved to Oxford to purse a masterís degree.† The petitioner and the respondent cohabited while they were engaged in their studies.†

[6]                In the summer of 1990, the respondent returned to his home in Quebec City to work on his thesis.† The petitioner returned to Vancouver and worked on a temporary basis at a Vancouver law firm.† On September 29, 1990, the parties were married in West Vancouver, British Columbia.† After their wedding and a brief honeymoon in Quebec City, the petitioner and the respondent returned to England and resumed their studies.†

[7]                In the summer of 1991, the petitioner obtained a temporary position at the offices of the International Labour Organization ("ILO") in Geneva, Switzerland.† The petitioner and respondent moved there.† A few months later, the petitioner was offered a regular post, which she accepted.† She now holds a permanent contract with the ILO that extends until 2025.†

[8]                The parties lived together in Geneva and then moved to a nearby town, Ferney-Voltaire in France.† They continued to live there until the marriage came to an end many years later.†

[9]                The respondent was never employed in France.† He obtained a French residency permit that was valid as long as he was married to the petitioner and she continued to be employed by the ILO.† This was renewed on a yearly basis for some 10 years.† In 2001, the respondent became qualified for and obtained a 10-year residency card.†

[10]            In 1993, the respondent was hired by Laval University as an assistant professor in the faculty of law.† For the first couple of years he lived partly in France and partly in Quebec.†

[11]            In September 1995, the respondent rented an apartment in Quebec City.† His position is that this apartment was the second home of the petitioner and the respondent.† Both of their names were on the mailbox; both kept belongings in the apartment.† The petitioner denies that she considered it to be her second home.†

[12]            Between 1995 and 2002, the petitioner spent part of her vacation time in Quebec.† The parties disagree on the amount of time spent there.† It does include a three-month period in Quebec in the winter of 1998.† During that time the petitioner was on a leave of absence from the ILO.† According to the respondent, the petitioner was interested in applying for a position at the Faculty of Law at Laval.† The petitioner, for her part, denies that she had any intention of applying for that position. ††

[13]            On October 7, 2000, Nicolas Pierre Olney-Rainville was born.† The petitioner and the respondent were living in France but chose a hospital in Geneva for the birth.† After the birth of Nicolas, the parties registered him as a Canadian citizen and obtained a Canadian passport.† The petitioner and the respondent sent birth announcements indicating they were his parents to family and friends.†

[14]            During the marriage the petitioner and the respondent travelled to British Columbia from time to time to visit with the petitionerís family.†

[15]            The petitioner has some assets in British Columbia.† She has an investment account, a savings account and a life insurance policy.† As well, she inherited a beneficial interest in residential property in Vancouver.† Her father has a life estate in the property.†

[16]            Ms. Olney has remained a member of the Law Society of British Columbia as a non-practising member.†

[17]            The parties separated in January 2002.† At that time, the petitioner commenced divorce proceedings in France.† The respondent left their residence in France and settled in Quebec City.†

[18]            On July 3, 2002, a court in France made an interim ruling that the parties had joint "parental authority" over Nicolas.† It was ruled that the respondent was to have a further nine weeks of access for the remainder of 2002.† Nicolas and the respondent spent seven weeks together in Quebec and two further weeks in France during the remainder of 2002.†

[19]            In July of 2003, the French court affirmed joint parental authority.† It held the respondent was entitled to access of 10 weeks per year.† The final divorce decree was issued on May 17, 2004.†

[20]            Since 2002, the respondent and Nicolas have been spending 10 weeks per year together.† This generally consists of two weeks in France and eight weeks in Quebec.† When Nicolas is in Quebec, he lives with the respondent in the apartment.† He has his own room and has belongings there.†

[21]            The respondent has an education savings bank in Quebec for Nicolas.† Nicolas also has health insurance in Quebec and is the beneficiary of the respondentís life insurance and pension.† Nicolas has a godmother and grandparents in Quebec.† Nicolas is considered a Quebec resident under the law of Quebec.† He has attended day care and summer camp programs in that province.† When he participated in those programs, he was registered as a resident of Quebec and paid fees as a resident.†

[22]            Nicolas has not resided in British Columbia.† He has visited British Columbia many times but no more than once per year and always for only three to four weeks or less.† He has a joint investment account in Vancouver and some extended family.

[23]            Since the separation, the petitioner has continued to live in France and work for the ILO.† In 2003, she and Stewart David MacDonald, an Australian citizen who also works for the ILO in Geneva, purchased a home together in the town of Versonnex in France.†

[24]            In 2005, the petitioner applied for a renewal of Nicolasís Canadian passport and listed her address in France as being her permanent address.† Later in that year, the petitioner and Mr. MacDonald were married in Versonnex.† The respondent asserts that the petitioner disclosed her domicile at that time as being in France.† The petitioner denies that she has domiciled in France or that she has made any such declaration.†

[25]            Mr. MacDonald, the petitioner and Nicolas, currently live together in Versonnex.† The petitioner and Mr. MacDonald continue to work at the ILO in Geneva.† Nicolas goes to school in Versonnex.†

[26]            The respondent is currently a resident of Quebec City and is a professor and associate dean of the Faculty of Law at Laval.† He has not been to British Columbia since 2001, except to attend the hearing in this matter.† He continues to spend 10 weeks per year with Nicolas.†

[27]            On January 12, 2005, Ms. Olney wrote a letter to Mr. Rainville in which she informed him that he is not the biological father of Nicolas and that Mr. MacDonald is.† She informed him that Mr. MacDonald and she had begun a sexual relationship a few months before the conception of Nicolas.† She also told Mr. Rainville that based on the blood types of Mr. Rainville, Ms. Olney and Nicolas, he could not be the son of Mr. Rainville.† On April 16, 2007, Ms. Olney sent to Mr. Rainville the results of a DNA parentage test in which it is concluded that Stewart David MacDonald is the biological father of Nicolas.†

[28]            In June 2007, the respondent was served with a petition in this matter seeking a declaration of paternity in favour of Mr. MacDonald and a change of name for Nicolas.† He was served in Quebec City.

[29]            The position of the respondent is that this action should be dismissed because this court does not have jurisdiction simpliciter.† The respondent argues that none of the bases for assuming jurisdiction set out in the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 (the "CJPTA"), are satisfied.† Sections 3 to 6 of that act govern the ability of a British Columbia court to take jurisdiction.† Those provide as follows:

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

(a)††††††† that person is the plaintiff in another proceeding in the court to which the proceeding in question is a counterclaim,

(b)††††††† during the course of the proceeding that person submits to the courtís jurisdiction,

(c)††††††† there is an agreement between the plaintiff and that person to the effect that the court has jurisdiction in the proceeding,

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

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

4.†††††††† A court has territorial competence in a proceeding that is not brought against a person or a vessel if there is a real and substantial connection between British Columbia and the facts upon which the proceeding is based.

5.†††††††† A court has territorial competence in a proceeding that is brought against a vessel if the vessel is served or arrested in British Columbia.

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

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

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

[30]            These provisions provide ďan exhaustive statement of the circumstances in which a British Columbia court will have jurisdiction simpliciter,Ē (Elizabeth Edinger, ďNew British Columbia Legislation The Court Jurisdiction and Proceedings Transfer Act; The Enforcement of Canadian Judgments and Decrees ActĒ (2006), 39 U.B.C. L. Rev., 407 at 415. †If a litigant cannot satisfy one of these provisions the court cannot take jurisdiction.

[31]            The respondent is not a resident of British Columbia.† He has not submitted to the jurisdiction of the court.† Therefore the only basis for this court to assume jurisdiction is section 3(e), that:

There is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based.

[32]            Section 10 of the CJPTA then sets out circumstances in which a real and substantial connection will be presumed to exist:

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

(iii)†††††† the contract

(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

(i)†††††††† in British Columbia, or

(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.

This case does not fit into any of the categories set out in section 10.† Because the petitioner cannot establish a real and substantial connection under section 10, the common law principles relating to this principle can be applied.† In Hunt v. T&N plc, [1993] 4 S.C.R. 289 at 326, 85 B.C.L.R. (2d) 1 [cited to S.C.R.], the Supreme Court of Canada stated that the evaluation of whether a real and substantial connection exists must be guided by principles of order and fairness, not a mechanical counting of contacts or connections".

[33]            This litigation concerns the status of the respondent as Nicolasís father and their relationship.† Is there a real and substantial connection between British Columbia and these issues?†

[34]            The petitioner argues that there is a real and substantial connection.† She relies on the financial connections she has with the province, her intention to return here, her family connections with the province and her position that her domicile remains in British Columbia.† Further she argues that pursuant to s. 28 of the Infants Act, R.S.B.C. 1996, c. 223, Nicolas is also domiciled in British Columbia.†

[35]            It may well be that petitioner and therefore Nicolas are domiciled in British Columbia.† However, even if that is the case, I am not satisfied there is a real and substantial connection between British Columbia and the facts which form the basis of this proceeding.† There is no suggestion that Nicolas or the respondent is a resident of British Columbia.† It is noteworthy that s. 10 of the CJPTA contains no reference to domicile as a basis for jurisdiction.†

[36]            I conclude that while the petitioner has connections with British Columbia, those connections do not advance her case very far.† This litigation is about the respondent and Nicolas, and neither has much, if any, connection with British Columbia.† Nicolas, while he may be domiciled in British Columbia, was not born here and has never resided here.† He has not attended school here.†

[37]            I conclude for these reasons that British Columbia does not have a real and substantial connection to the subject matter of this litigation, the status of the respondent as Nicolasís father and the relationship of Nicolas and the respondent.†

[38]            Even where a court finds it lacks jurisdiction under s. 3 of the CJPTA, a court has a residual discretion to assume jurisdiction under section 6 of the CJPTA:

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

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

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

[39]            The petitioner does not meet either of the requirements set out in section 6.† On the evidence, the petitioner is entitled to commence her action in Quebec.† The uncontradicted evidence of the respondent is that the Quebec court can and would take jurisdiction.† This is based on an opinion letter of MaÓtre Sandra Armanda that is before the court.†

[40]            That is not to say that such an action will necessarily be successful in Quebec.† There are substantive and evidentiary rules which will make it difficult to succeed.† However, section 6 refers to the ability to commence an action, not to barriers to success in an action.†

[41]            If I am wrong in this regard, I conclude in any event that Quebec is a more appropriate forum. †Section 11 of the CJPTA sets out the criteria.†

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.

[42]            This provision is a codification of the doctrine of forum non conveniens.

[43]            Where as here the respondent has been served ex juris, the petitioner has the burden of establishing that British Columbia is the forum conveniens.† Bushell v. T&N plc (1992), 67 B.C.L.R. (2d) 330, 92 D.L.R. (4th) 228 (C.A.). †It is the province of Quebec where the respondent is most closely connected.† It is the jurisdiction outside France where Nicolas has the strongest connections.† It is the location of the relationship between Nicolas and the respondent that is the heart of this litigation.† The respondent has lived in Quebec exclusively since 2002 and intends to remain there.† Nicolas spends a considerable amount of time (some eight weeks per year) in Quebec, which is more than he spends in any jurisdiction other than France.† When the relative convenience and expense to both parties is considered, Quebec is the more appropriate forum.† The respondent lives in Quebec, as do persons who would be witnesses.† If the matter were heard in British Columbia, the respondent would have to pay to travel here and have witnesses travel here.†

[44]            The petitioner is not living in Quebec or British Columbia and will have travel costs regardless.† Travel from France to Quebec is, if anything, less time-consuming than travel from France to British Columbia.† Moreover, Quebecís choice of law rules governing the issue of affiliation are further support for finding that it is the most appropriate forum.† Under article 3091 of the Civil Code of Quebec, S.Q. 1991, c. 64, affiliation can be established using the law of either parentís domicile at the time the child was born, whichever is in the childís best interest. †Thus, the petitioner would be free to argue in the Quebec court that she is domiciled in British Columbia and that it is in the best interest of Nicolas for British Columbia law to be applied.

[45]            The principles of order and fairness dictate a result in the respondentís favour. †At issue is the status of the respondent as the father of Nicolas.† As such, fairness would indicate that litigation take place in the forum most connected to the respondent and his relationship with Nicolas.† On the other hand, there is no issue in this litigation about the status of the petitioner as a parent of Nicolas.†

[46]            There are two additional bases for jurisdiction which are put forward by the petitioner.† First, the petitioner relies on article 8 of the United Nations Convention on the Rights of the Child 1989, CTS 1992/3, 28 I.L.M 1456 to argue that Nicolas has a human right to have a declaration of paternity in favour of Mr. MacDonald.† She argues that the Quebec court will not make such a declaration.†

[47]            My conclusion is that this submission goes to the merits of the case rather than jurisdiction.† It may well be a reason for arguing that it is in the best interest of Nicolas that Quebec apply the law of British Columbia.† Moreover, there is no free-standing right to preserve oneís identity under Canadian law. †Veffer v. Canada (Minister of Foreign Affairs) 2007 FCA 247, 283 D.L.R. (4th) 671, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 457 (QL).

[48]            The petitioner also argues that this court has jurisdiction based on its parens patriae powers.† Parens patriae jurisdiction refers to the jurisdiction of the court to protect persons who are not able to take care of themselves.† The bulk of the modern cases arise with respect to children: E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388, 34 D.L.R. (4th) 1 [cited to S.C.R.] at para. 26:

A court may only act on the grounds that injury to person or property has occurred or that such injury is apprehended.†

In assuming parens patriae jurisdiction, a court must act very cautiously.

[49]            This is not a case for the exercise of the courtís parens patriae jurisdiction.† This is not a child who requires the courtís protection.† The question of where the issue of paternity or affiliation should be determined falls to be determined pursuant to the provisions of the CJPTA.† For those reasons the petition is dismissed.

[50]            MR. ALBI:† My Lord, I would suggest that this is an appropriate case for an order of costs following the event.

[51]            THE COURT:† That would be my conclusion.

"Mr. Justice Kelleher"