Date: 19990120
Docket: F980022
Registry: Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA

Order by
Mr. Justice Bauman
Pronounced in Chambers
January 20, 1999

BETWEEN:

K.P.G.

PLAINTIFF

AND:

M.A.G.

DEFENDANT

Counsel for the Plaintiff:	George Gordon
Counsel for the Defendant:	Mark G. Perry

1)         THE COURT:  I am going to make a few remarks at this point.  This family litigation concerns an application by the plaintiff mother, K.P.G., that this Court in effect amend a divorce order from the state of Utah with respect to visitation granted to the defendant, M.A.G., to the infant child.  The plaintiff asks that the visitation be suspended for the foreseeable future while certain issues with the child are addressed by her therapist. 

[2]        The plaintiff also seeks a British Columbia order confirming her sole custody of the child:  Custody in favour of the plaintiff, is a term of the Utah divorce order. The defendant father counters the application by asking the Court to decline to exercise jurisdiction over the child, leaving the issues of custody and access to be determined by the courts of Utah, which are presently considering various applications in that regard.     

[3]        The hearing before me has lasted a full day and a half.  I have had many affidavits to review.  The material includes a number of expert reports from therapists.  I am going to reserve my disposition of the applications at this time for written reasons.  However, because there are ongoing proceedings in Utah and because it is apparent to me that there may be a misunderstanding in both jurisdictions as to what the other is doing and for what reasons, I will make a few comments at this time.

[4]        The statutory scheme in British Columbia with respect to jurisdiction over a child is found in the provisions of our Family Relations Act, R.S.B.C. 1996, c. 128, and in particular, in sections 42 to 46 thereof.  For the benefit of any readers of these reasons, I will quote portions of those provisions.  In s. 44(1)(a) of the Act, we find this:

The court must exercise its jurisdiction to make an order for custody of or access to a child only if

(a)        the child is habitually resident in British Columbia at the commencement of the application for the order, or

(b)        although the child is not habitually resident in British Columbia, the Court is satisfied that

(i)         the child is physically present in British Columbia at the commencement of the application for the order,

(ii)        substantial evidence concerning the best interests of the child is available in British Columbia,

(iii)       no application for custody of or access to the child is pending before an extraprovincial tribunal in another place where the child is habitually resident,

(iv)       no extraprovincial order in respect of custody of or access to the child has been recognized by a court in British Columbia,

(v)        the child has a real and substantial connection with British Columbia, and

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

Section 44 (2) reads:

A child is habitually resident in the place where the child resided

(a)        with both parents,

That is not applicable here.

(b)        if the parents are living separate and apart, with one parent under a separation agreement or with the implied consent of the other parent or under a court order, or

...

whichever last occurred.

...

  S. 45 confers a special jurisdiction:

Despite sections 44 and 48, a court may exercise its jurisdiction to make or to vary an order in respect of the custody of or access to a child if

(a)        the child is physically present in British Columbia, and

(b)        the court is satisfied that the child would, on the balance of probability, suffer serious harm if the child

(i)         remains in the custody of the person legally entitled to the custody of the child,

(ii)        is returned to the custody of the person legally entitled to custody of the child, or

(iii)          is removed from British Columbia.

And finally s. 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.

[5]        Although I am reserving on the issue generally, I say at this time that it is quite apparent to me that this Court has jurisdiction over this child.  This child has been in British Columbia about a year and a half.  She has been educated in the schools of West Vancouver during the last two years.  She has a safety net of therapists in British Columbia; they include doctors and psychologists who are providing her with care (continuous care I may add).  She has a circle of friends in this province, a circle of Brownie leaders and sport coaches and teachers and others.  She is very much a child living in this province for some considerable time, and I have little doubt that this Court enjoys jurisdiction over her well‑being.     

[6]        Now, whether this Court ought to exercise that jurisdiction in light of s. 46, or whether there might be a more convenient forum within which to consider the best interests of this child, that is, the state of Utah, is an issue to which I will direct my mind.  But I say now that I definitely have jurisdiction and it will be a case of deciding whether I ought to decline it under s. 46.

[7]        I am going to reserve.  In the interim, I am going to make an order that there be no contact between the defendant and B.G. until further order of the Court.  The test in British Columbia is what is in the best interests of this child.  At this time, the evidence before the Court is found in a number of reports from Mr. Colby, a registered psychologist and Dr. Elterman, a registered psychologist.  I point out that Dr. Elterman has prepared approximately 1,500 reports.  He is well‑known to the Courts in this province as a professional giving opinions, helpful opinions, in matters of custody and access. 

[8]        Dr. Elterman has had a quite extraordinary opportunity in respect of B.G.  In most cases of this sort, the psychologist sees the child or the parents for 6 or 7 hours, and the opinion obviously must be considered in light of the somewhat limited involvement by the therapist.  In this particular case, Dr. Elterman has been the continuing therapist for B.G. for a year, and he has seen her apparently in excess of 30 times.  He says this in his report of 9 December 1998:

[B.G.] now describes the access visits as traumatic ...

[9]        And I interject to say this is access during 1997, culminating in December of 1997, continuing ‑‑  I will repeat the quote again:

[B.G.] now describes the access visits as traumatic for her.  What was more salient for her in January and February of 1998, was feeling anger and fear and recalling feeling bad about herself during visits.  Over the past year she has described incidents that illustrate why she felt fear and anger.  The symptoms of rages, bed wetting, day wetting, soiling, nightmares, separation anxiety and low self esteem, which apparently peaked in late 1997 and early 1998, would tend to support what she says she was feeling. [B.G.] has made good progress emotionally during 1998, but is still clear in saying that she doesn't want to see her father.  In a telephone conversation with [M.A.G.] earlier this year, I promised that I would try to affect a reconciliation if this is possible and seems therapeutic for my client, [B.G.]. I have raised this with her many times and have served as the conduit for letters and parcels for [M.A.G.] and his family.  I have encouraged [B.G.] to write to members of the [G.] family.  I am concerned that forcing [B.G.] to visit now against her wishes will undo the emotional work that has been done over the past year.  I believe that when she feels strong enough, she will visit, and I will encourage this.  My concern is that forced access is much more likely to cause her harm than help her now.

[10]      Mr. Colby, in a very lengthy report, which the Utah court has had the benefit of, but which I will cite in my reasons at this time, concludes, in part, by recommending:

... that the child, [B.G.], while remaining in the sole care and residence of her mother, [K.P.G.], not be engaged in visitations with her father under any conditions at the present.

[11]      In light of that evidence, I have little choice and no inclination to ignore it.  I have little choice for the interim period while I consider the submissions made to me, but to make a no‑contact order.  On reading the transcript from the proceedings in Utah before His Honour, Judge Eyre, it is clear that he was most concerned that these parties not fall into the limbo of legal proceedings with no resolution; that this father not fall into limbo with respect to his contact with his daughter; that we not adjourn this matter on the basis that the father will have no contact, but without a plan that would see the gradual or more immediate resumption of a relationship between father and daughter.  I have no doubt at all that that is a very legitimate concern, and it is one that I, of course, will address in my consideration of the submissions made to me, and it is one that I will consider as I address the fundamental issue of whether this Court ought to exercise ultimate jurisdiction in the matter.

[12]      I hope that those comments are helpful.  I put them on the record at this time, notwithstanding my reservation of judgment, because I think it important that the Utah Court know what this Court is doing.  Otherwise, I reserve.

"RJB"  (LAL for RJB)

__________________________________

The Honourable Mr. Justice Bauman

May 9, 2008 – Revised Judgment

Please be advised that the Order of Mr. Justice R.J. Bauman dated January 20, 1999 has been edited.

• The full names of the parties have been replaced with initials for publication purposes.