Date:
19990303
Docket: F980022
Registry: Vancouver
IN THE SUPREME COURT OF BRITISH COLUMBIA
BETWEEN:
K.P.G.
PLAINTIFF
AND:
M.A.G.
DEFENDANT
REASONS FOR JUDGMENT
OF THE
HONOURABLE MR. JUSTICE BAUMAN
|
Counsel for the Plaintiff: |
G. Gordon |
|
Counsel for the Defendant: |
M. G. Perry
|
|
Place and Dates of Hearing: |
Vancouver,
B.C.
|
1) These reasons should be read together with the remarks I made on the record at the conclusion of argument.
[2] K.P.G. seeks an order confirming her permanent custody of B.G. who was born to the parties on 30 June 1989.
[3] M.A.G. and K.P.G. were divorced by order of the Utah State Court on 9 July 1993. That order awarded sole custody of B.G. to K.P.G. with defined visitation to M.A.G.
[4] B.G. was in sole de facto custody of K.P.G. from the parties' separation in 1991.
[5] K.P.G. also seeks an order indefinitely suspending M.A.G.’s access rights.
[6] M.A.G. responds with a threshold objection to this court's jurisdiction.
[7] It is urged that the court does not have jurisdiction over the custodial status of B.G. and that, in any event, it should decline to exercise any jurisdiction it might have in deference to the courts of Utah - a more convenient form.
[8] In his submissions, counsel for M.A.G. raises a claim of "parental alienation syndrome" and suggests that K.P.G. has effectively undermined the defendant's relationship with B.G.
[9] In my oral reasons of 20 January 1999, I indicated that I was of the preliminary view that this court has jurisdiction over B.G. under the provisions of the Family Relations Act, R.S.B.C. 1996, c. 128 (the "Act") and that the defendant's objections would be considered only in the context of s. 46 of the Act. It reads:
Declining jurisdiction
46 A court that has jurisdiction in respect of custody or access may decline to exercise its jurisdiction if the court is of the opinion that it is more appropriate for jurisdiction to be exercised outside British Columbia.
[10] Upon reflection, I remain of that view.
[11] Jurisdiction over B.G. is founded on the application of various sections of the Act.
[12] First, the facts support an application of s. 44(1)(a). B.G. was habitually resident in British Columbia at the commencement of the plaintiff's application, as that phrase is defined in s. 44(2)(b). In particular, I find that she has been living here with her mother with the implied consent of M.A.G.
[13] Alternatively, she has been here in the custody of her mother pursuant to the initial Utah order granting her sole custody. That order and K.P.G.’s residence with B.G. in British Columbia was expressly approved by the Utah Court in its orders of 2 January 1998 and 15 July 1998.
[14] Second, jurisdiction arises, in the alternative under s. 44(1)(b) of the Act. I refer to my oral reasons and I find that each requirement for jurisdiction has been met.
[15] As to s. 44(1)(b)(iii) of the Act, while the defendant has commenced a custody and access application in Utah, B.G. is not habitually resident there.
[16] In the application of s. 44(1)(b), I rely upon the Court of Appeal's reasons in Anderson v. Sullivan (1996), 22 R.F.L. (4th) 115.
[17] Third, and in the further alternative, I have concluded that s. 45 of the Act accords jurisdiction on the facts. In my oral reasons, I refer to the various reports of Mr. Colby and Dr. Elterman. I add that the report of Dr. Brouillette further supports, as well, an application of s. 45.
[18] I have considered the defendant's submissions that I ought to decline jurisdiction under s. 46 of the Act. In my view the background facts strongly favour British Columbia as the most convenient forum within which to consider B.G.’s best interests. It would be inappropriate and wrong for this court to decline that jurisdiction.
[19] The plaintiff asks that I make an order granting her permanent custody of B.G. at this time.
[20] This has been a summary application. The issue of custody is contested by the defendant (as I have said he advances a thesis of "parental alienation syndrome"). He has not been heard fully on the merits of that assertion or on the issue of custody and access generally.
[21] In my view, it is appropriate to refer this matter to the trial list and I do so. I recommend that an early trial date be set.
[22] In the meantime, the plaintiff shall have interim custody of B.G.; the order of Master Barber of 26 January 1998 is continued except that I accept the amendment to that order proposed in the plaintiff's submission of 22 January 1999.
[23] I will remain seized of the issue of access pending trial and my order of 20 January 1999 is continued. I ask that the parties, with the assistance of Dr. Elterman, give consideration to arrangements by which M.A.G. might appropriately exercise interim access to B.G. and I await submissions from the parties in that regard.
[24] Costs of the application will await disposition by the trial judge.
"R.J. Bauman J."
Bauman J.
Vancouver, B.C.
3 March 1999
May 9, 2008 – Revised Judgment
Please be advised that the Reasons for Judgment of Mr. Justice R.J. Bauman dated March 3, 1999 have been edited.
· The full names of the parties have been replaced with initials for publication purposes.