FAMILY LAW IN PROVINCIAL COURT
PAPER 1.1
Provincial Court Jurisdiction: A Potpourri of
Parens Patriae, Paramount and Concurrent
Jurisdictionand a Rant
These materials were prepared by David C. Dundee of Paul & Company, Kamloops, BC, for the Continuing
Legal Education Society of British Columbia, March 2010.
© David C. Dundee
1.1.1
PROVINCIAL COURT JURISDICTION: A POTPOURRI OF PARENS
PATRIAE, PARAMOUNT AND CONCURRENT JURISDICTION—
AND A RANT
I.
Introduction ....................................................................................................................... 1
A. Inherent jurisdiction............................................................................................................... 1
B. Parens Patriae ......................................................................................................................... 2
C. Statutory Remedies ................................................................................................................ 3
II.
Concurrent Jurisdiction ...................................................................................................... 4
A. Proceeding in Both Courts..................................................................................................... 4
B. Where there is an Order ........................................................................................................ 6
C. Where there is an Agreement................................................................................................. 6
III.
Paramount Jurisdiction....................................................................................................... 7
IV.
Service Outside British Columbia—A Contrary View ........................................................ 8
I.
Introduction
Trial jurisdiction in family law is split between the Supreme and Provincial Courts of BC. Which to
chose will depend on a number of factors, including:
(a)
whether you are relying on inherent jurisdiction or parens patriae powers;
(b)
whether the governing statute requires one or the other;
(c)
whether there is an existing order, agreement, or proceeding; and
(d)
which jurisdiction best suits your client or the circumstances of the case.
Sometimes you will have a choice, sometimes not. This paper will discuss most of these situations,
including whether you can move between the two. While much of the research and analysis is my
own, and certainly I take full responsibility for the organization and my own opinions, I also wish to
acknowledge a debt to the authors and editors of the Family Practice Manual, the Family Law
Sourcebook, and Annotated Family Practice.
A.
Inherent jurisdiction
It is widely accepted that, the Provincial Court being a creature of statute, it can only do what a statute
or rule specifically authorizes it to do. No rule, no power. While that is certainly true in matters of
substantive law, the Provincial Court does have an inherent jurisdiction over it’s own procedure.
In L.L.C. v. P.G., [1994] B.C.J. No. 1591, Judge Stansfield cited Baron Anderson in Cocker v. Tempess
(1841), 151 E.R. 864:
The power of each court over its own process is unlimited; it is a power incident of
all courts, inferior as well as superior; were it not so, the court would be obliged to
sit still and (to) see its own process abused for the purpose of injustice. The exercise
of the power is certainly a matter of the most careful discretion.
1.1.2
Judge Stansfield concluded, at para. 35,
In my view it is unrealistic, and inconsistent with experience, to expect that the
Rules will address every contingency that can and will arise in the course of
litigation. When a “gap” is encountered … [it will be] … reasonable , and consistent
with the authorities to which I referred above, for a judge to cautiously and
conservatively carve out such supplementary processes as may be necessary to ensure
that justice is done.
In that case, Judge Stansfield was considering whether to issue a warrant for the arrest of a party to a
child support hearing, or to compel attendance by less drastic (though not specifically authorized)
means. In R.K. v. McBride, [1994] B.C.J. No. 2791, Judge Mondin invoked inherent jurisdiction to
issue a publication ban in small claims proceedings for damages for sexual assault. In Smythe v.
Bourgeois, 2008 BCSC 1847, the issue was appointing a litigation guardian for a minor.
So what is different about the inherent jurisdiction of the Supreme Court? The principal difference is
the power to act as parens patriae, discussed below. At common law, the Supreme Court could also:
(a)
issue injunctions;
(b)
punish for contempt of court;
(c)
stay matters that are frivolous or vexatious; and
(d)
render assistance to inferior courts.
Re Regina and Unnamed Person (1985), 20 C.R.R. 188 (Ont. C.A.)
Much, if not all, of these powers are now covered by statute or rule, but originated with the inherent
jurisdiction of the court.
The Provincial Court may also punish for contempt, but is limited to contempt “in the face of the
court” (R v. Vermette, [1988] 1 S.C.R. 985 and Agee v. Vellani, [1991] B.C.J. No. 3927).
B.
Parens Patriae
Originally, the sovereign had parens patriae powers, to act for the benefit of mentally incompetent
persons. When the power transferred to the court, the ambit of those powers extended to children,
for much the same reason: someone had to be able to act for those who could not act for themselves
(R. v. Eve, [1986] 2 S.C.R. 388 at 425-6).
The parens patriae powers include the ability to:
(a)
act in emergency situations in which a child is considered to be in need of protection
(e.g., authorizing emergency medical care);
(b)
review the actions of the Director of Child, Family and Community Services (you can
also invoke the Judicial Review Procedure Act); and
(c)
act where there is a “gap” in legislation.
(O’Driscoll v. McLeod (1986), 10 B.C.L.R. 108 at 113)
There are some interesting cases where such a “gap” has been found, including
(a)
Re BC Birth Registration No 78-09-024190, [1990] B.C.J. No. 235, where the adoption of
a child to a native father was allowed, even though the father had died, so that the
child could have native status in common with his siblings;
(b)
Yassin v. Loubani, 2006 BCCA 509, where the Court assumed jurisdiction over
children ordinarily resident in Saudi Arabia, even though they did not fall under the
criteria of Part 3 of the FRA. See also Arsenault v. Burke, 2007 BCSC 23.
1.1.3
C.
Statutory Remedies
Below are most of the statutes you will encounter in family practice, and whether they require one or
the other level of court.
Adoption Act—obviously, deals with adoptions. It requires the Supreme Court (s. 1).
Child, Family, and Community Services Act—deals with child protection, and with the estates of
children in care (s. 58). It requires most matters to be dealt with in Provincial Court, unless the Act
specifically provides otherwise (s. 1(1)). Examples of where the Act has provided otherwise include:
(a)
restraining orders (s. 98(8)); and
(b)
the parens patriae jurisdiction of the Supreme Court is expressly reserved (s. 99).
Court Jurisdiction and Proceedings Transfer Act—in Part 2, it defines the territorial jurisdiction of all
courts in BC. In Part 3, it allows matters to be transferred into or out of the province. Part 3 refers
only to the Supreme Court. But note, Part 3 of the Family Reactions Act deals with extra jurisdictional
custody and access orders. Where there is a conflict between the two acts, the FRA governs (s. 12).
Divorce Act—deals with divorce and corollary relief relating to custody, guardianship, access and
support. Being federal legislation, both the Act (s. 2(1)) and the constitution require the Supreme
Court.
Family Maintenance Enforcement Act—deals with enforcement of maintenance orders or agreements.
Though in practice, almost all FMEP proceedings are heard in Provincial Court, the Act actually
allows significant concurrent jurisdiction between the two levels of court. Sections 29 (appointing a
receiver) and 30 (restraining disposition of assets) are reserved to the Supreme Court. Sections 27(1)
and (2) (warrants of execution) are reserved to the provincial court. For anything else, you can go to
either.
Family Relations Act—deals with matrimonial property, child custody, guardianship, access, and both
child and spousal support. The jurisdiction of the Provincial Court is set out in s. 6, which grants it
concurrent jurisdiction with the Supreme Court over:
(a)
guardianship of the person of a child;
(b)
custody of or access to a child;
(c)
the parentage of a child;
(d)
maintenance (child or spousal);
(e)
occupancy of the family residence and use of its contents, and
(f)
the making of orders that a person must not enter premises while they are occupied by
a spouse, parent, or child.
The Polglase case (1982), 131 D.L.R. (3d) 257 put a gloss on (e) and (f), saying that the Provincial Court
had no jurisdiction over (e) and could only exercise the jurisdiction in (f) if it was collateral to an order
for child custody.
Infants Act—deals with various powers of and in relation to children, but as to court matters allows the
Public Guardian and Trustee to make applications in relation to children or their property. The court
must be the Supreme Court (s. 1)—but see also s. 58 of the CFCSA for children in the care of the
Director.
Interjurisdictional Support Orders Act—deals with enforcement of extra jurisdictional support orders,
and pursuing support orders for enforcement in reciprocating provinces and countries. Under s. 2, the
Minister of the Attorney General can designate the court or courts for such proceedings. On June 30,
2006, the Honourable Wally Oppal, designated both the supreme and provincial courts.
1.1.4
There is no need to choose one or the other depending on the level of the reciprocating order. The
Provincial Court has full jurisdiction to confirm or vary even an order from a superior, or divorce
court (JCH v. MBH, 2006 BCPC 76).
Judicial Review Procedure Act—can be used to review the actions of the Director of Child, Family
and Community Services. You must go to Supreme Court (s. 1).
Land (Spouse Protection) Act—allows the court to hear applications in relation to charges filed or
claimed against a family “homestead.” It must be the Supreme Court (ss. 8 and 13).
Law and Equity Act—while the principles apply in all courts in BC, the application most relevant to
family practice is the power to freeze or secure assets by injunction (s. 39) where s. 67 of the Family
Relations Act does not apply (i.e., common law trust claims). For constitutional reasons, only the
Supreme Court can exercise this jurisdiction (Polglase).
Marriage Act—allows the Supreme Court to authorize the marriage of a person under 16 years of age
(s. 29).
Name Act—allows a person to apply to the chief executive officer of vital statistics or the court to
change their surname or the surname of an unmarried minor child. The court is the Supreme Court
(ss. 5 or 9(5)). But note that:
(a)
although upon divorce a (former) spouse can apply for an order changing their
surname to “any name he or she desires” (s. 5), no order is required to revert to a
name the spouse had before marriage, whether upon divorce or at any time; and
(b)
section 4.1 of the Vital Statistics Act also allows for a change of surname of a child.
Partition of Property Act—allows the court to divide or sell property owned by two or more persons.
You must go to Supreme Court (s. 1).
Vital Statistics Act—allows a parent to apply for a change of a child’s surname, upon the court
making an finding of parentage (s. 4.1). “Court” is not defined in the Act, and since s. 6 of the FRA
gives the Provincial Court power to make a finding of parentage, one may apply to either court.
II.
A.
Concurrent Jurisdiction
Proceeding in Both Courts
Where both the Supreme and Provincial Court can act, you can proceed in either or both levels of
court. Usually, a multiplicity of proceedings is to be discouraged, but in Auxi v. Menton (1994), 2
B.C.L.R. (3rd) 307, Master Bishop provided four circumstances under which it might nonetheless be
appropriate to move from one court to the other.
(a)
where there is a substantial time delay between the order in provincial court and the
application to supreme court;
(b)
where there is no order, it is unlikely the provincial court can hear the matter within
a reasonable time, and it is in the interests of the children to determine the matter
more quickly;
(c)
the children’s health or emotional well-being are at risk and the matter must be
heard immediately; or
(d)
where additional relief is claimed in the supreme court over which the provincial
court lacks jurisdiction.
1.1.5
In such cases, the proper procedure is to joint the two proceedings, under s. 8 of the Family Relations
Act. 1 Alternatively, s. 8 also allows one court to defer its proceedings until the other court has finished.
So, where the Supreme Court is dealing with property division, say, and the Provincial Court is dealing
with child custody, guardianship, access, and spousal support, the Supreme Court could
(a)
join the two proceedings in Supreme Court;
(b)
joint the support application with the property proceeding in Supreme Court,
or the Provincial Court could defer a final decision on support until the property issues had been settled.
Section 8 reads:
Joining proceedings
8(1) If, in a proceeding under this Act, it appears to the court that other matters under
this Act or under any other Act or law of British Columbia or of Canada should be
determined first or simultaneously with the matters at issue in the proceeding, the court
may, on its own motion, or on application of a party to the proceeding,
(a) join and hear all proceedings together, in so far as this is within the court’s
jurisdiction, or
(b) direct that the application stand over until other proceedings are brought or
determined
as the court, in its discretion, considers appropriate.
(2) The Supreme Court may, on application by a party to a proceeding under Part 2 or
5, join and hear an application under section 20 to vary or rescind an order made by the
Provincial Court under section 93(1), 96 or 121(4)(b), even though an application has not
been made to the Provincial Court.
(3) An order of the Provincial Court that is varied by the Supreme Court, for the
purposes of any subsequent application to vary, rescind or enforce the order, is deemed
to have been varied by the Provincial Court.
Subsection (b) applies only to the Supreme Court, though subsection (a) applies to either. It should also
be noted that while subsection (a) refers to the joining of proceedings, subsection (b) is restricted to the
joining of a support variation application in Provincial Court with a Part 2 or 5 proceeding in Supreme
Court (Massar v. Klouti-Houser (1996), 26 R.F.L. (4th) 314).
The plain language of s. 8, though, must be read with caution, since Auxi and other cases have clearly
confined such moves between courts to specific exceptions. See Legault v. Boyes (1997), 41 B.C.L.R. 3rd
258; Barreiro v. Stewart (1997), 32 R.F.L. 4388; Neukomm v. Wilhelmsen (1998), 37 R.F.L. 4317; and
Simpson v. Derouin, 2009 BCSC 1263. They may not be limited to the four instances above, but you will
still need a strong argument to move from one court to the other.
Court waiting times are significantly different in different parts of the province, and in different courts.
Sometimes it is easier to get matters heard in Provincial Court. Sometimes it is quicker to proceed in
Supreme Court. Where counsel are involved, this is something that should be discussed ahead of time.
Where there is disagreement, the applying party should have a good reason to offer the court, in line
with the Auxi principles, or an alleged exception.
Counsel should also be consider the possible appearance of impropriety or sharp practice, especially if it
looks like your client wants the more expensive Supreme Court process as a means of economic
oppression.
1
Auxi refers to s. 8(2), but for reasons explained below, it should really be s. 8(1): Massar.
1.1.6
B.
Where there is an Order
If decisions have already been made at one level of court, they cannot be revisited in the other (Ekland v.
Sangsari (1996), 24 R.F.L. (4th) 119 (C.A.)). That is, if the underlying authority in both cases is the FRA.
The Supreme Court can supersede the jurisdiction of Provincial Court under the FRA by invoking the
paramount jurisdiction of the federal Divorce Act. That will be discussed in a later section.
If an order has been made on one issue in one court, that does not preclude the other court making
decisions on other issues.
Custody and access are somewhat tricky terms, though, depending upon which act you are relying.
Under the Divorce Act, custody and access are not separately delineated. Consequently, if the Supreme
Court makes a corollary order for custody under the Divorce Act, the Provincial Court cannot address
access, even if the divorce order is silent on the subject (Spiers v. Spiers, 18 R.F.L. (4th) 246). Where it is
not clear which statute was relied upon, but both are pled, the order will be presumed to have been made
under the Divorce Act.
Spiers also stands for the proposition that, since the Family Relations Act specifically provides for both
custody and access orders, a custody order in one court would not preclude making an access application
in the other, citing Sangara v. Sangara (1984), 39 R.F.L. (2d) 156 (B.C.P.C.). In RG and SG v. KJR, 2003
BCSC 1101, however, Justice Barrow disapproves of that proposition, saying:
All issues of access are necessarily secondary to the central question of custody. It
would be incongruous, if not illogical, if the commencement of proceedings to deal
with an issue ancillary to custody could properly result in changing the forum for
resolution of the custody issue, when attempting to do that directly would not be
countenanced.
He cites an earlier decision of Justice Meiklem’s to the same effect, Mullen v. Steele, [1998] B.C.J. No. 865.
This may also cast some doubt on the result in Massar v. Klouti-Houser, which held that a father could
bring a mobility application in Supreme Court where there was a joint custody order in Provincial
Court.
Problems can also arise when there are previous orders affecting the same children but not all of the same
parties, as in step parent or grandparent cases. Where a parent has custody under the Divorce Act, a
grandparent may not apply in Provincial Court under the FRA (Sheldon v. Sheldon, [1990] B.C.J. No. 850
and BF v. FP, 2008 BCPC 141). They would have to be added as parties in the divorce proceeding.
By contrast, if the underlying custody order is in Provincial Court, the grandparents may not apply to
Supreme Court (RG and SG v. KJR).
See Ms. Zetzsche’s article for the Chief Judge’s direction where grandparents are applying in Provincial
Court and there is an existing custody file in the same court involving the same children.
In DCL v. KSLS, [1996] B.C.J. No. 2775, Justice Shabbits consolidated an FRA hearing for custody with a
CFCSA protection hearing, but declined to proceed in Supreme Court, where the FRA proceeding had
been commenced. Instead, he referred the FRA matter to Provincial Court. But see Capot-Blanc v.
Quesnelle (18 June 1996) Fort St. John No. 10984 (B.C.S.C.).
In SH v. LAH, [1997] B.C.J. No. 89, Justice Powers elevated CFCSA proceedings to Supreme Court to
join them with a divorce action.
C.
Where there is an Agreement
Unlike an order, the filing of an agreement pursuant to either s. 121 or 122 of the Family Relations Act
does not bar the jurisdiction of the other court. While such agreements are enforceable as if they were
an order, they are not actually orders. The court has not yet been required to turn its mind to, and
1.1.7
exercise its jurisdiction over the issues covered in the agreement, so there is no question of them being
res judicata (Simpson v. Derouin). Even a consent order may not be res judicata, since it reflects the
agreement of the parties, not a decision of the court (BGD v. RWD, 2003 BCCA 259, cited in Simpson).
In Simpson, the parties had filed both an agreement and a subsequent amendment for enforcement in
Provincial Court. There was a subsequent application to vary the agreement, though no decision had
yet been made. Justice Chamberlist joined the Provincial Court proceeding with the Supreme Court
proceeding under s. 8.
It would also appear that privative clauses in agreements specifying that one or the other level of court
has jurisdiction over the subject matter of the agreement are not binding on the court. It seems well
settled that such agreements can neither confer a jurisdiction or power the courts do not have (Ward v.
Ward, 2002 BCSC 252), nor take away a jurisdiction they do have (de Rooy v. Bergstrum, 2010 BCCA 5).
In de Rooy, the Court of Appeal deferred for another day the question whether the Supreme Court can
vary an agreement filed under s. 122. Justice Chiasson commented that
While this could be considered an anomaly or gap in the legislation, viewed as a
matter of policy, it appears the Legislature intended that the Provincial Court, to
which often there is more regular and direct access, is to deal with parties who wish
to vary their agreement.
If the agreement is filed under s. 121, either the Provincial Court or the Supreme Court can vary it
(Drummond v. Laprise, [1999] B.C.J. No. 122).
III. Paramount Jurisdiction
The Divorce Act is federal legislation and is paramount to the provincial Family Relations Act. The
principle of res judicata, therefore, does not prevent the Supreme Court making orders under that act
where there have been orders granted under the other, in either court.
In Callison v. Callison (1989), 22 R.F.L. (3d) 123, Justice Hinkson said:
It is clear from the provisions of [now s. 93(1)] of the Family Relations Act that any
order made under that Act is subject to the Divorce Act. The legislature has
recognized that an order under the Divorce Act supercedes an order made under the
Family Relations Act. Thus, when proceedings are taken under the Divorce Act, the
fact that there has already been an order for maintenance made under the Family
Relations Act does not amount to res judicata, nor is the court to refuse to exercise its
jurisdiction under the Divorce Act on the basis of public policy.
Section 93(1) deals with claims for maintenance, but the same express deference to the Divorce Act is
also contained in s. 5(1) of the FRA, as to “all matters concerning the custody of, access to and
guardianship of children, dissolution of marriage, nullity of marriage, judicial separation, alimony and
maintenance.”
This rule applies whether the divorce proceeding is in progress (Callison) or has been re-opened after a
divorce order has been made (Delaney v. Delaney (1995), 11 R.F.L. (4th) 155 (B.C.C.A.) and Schaff v.
Schaff (1997), 30 R.F.L. (4th) 63 (B.C.C.A.)).
But just because the court can take over prior proceedings, should it? Delaney makes clear the court does
still have a discretion whether to do so (para. 39). Justice Hinkson commented that the Supreme Court
might choose not to interfere where the same court has already considered all relevant circumstances
under the FRA. (Presumably, this would also apply if the Provincial Court had done so.)
In Osborn v. Osborn (1991), 58 B.C.L.R. (2d) 348 (S.C.), Justice Coultas comments on the fact that a
fresh application under the Divorce Act would amount to, in effect, a variation application without the
1.1.8
need to establish a material change of circumstances. He said he was mindful also that the husband’s
motives may have been (without finding that they were) to engage in the more expensive process as a
means of coercing the wife from pursuing her claim. He referred the parties back to Provincial Court.
I would note that under the new Supreme Court family rules, the objects of the rules include ensuring
(a)
the “just, speedy and inexpensive determination” of the issues;
(b)
in a manner that is proportionate to the importance of the issues and the complexity
of the case.
(Rule 2-1).
Depending on how this rule develops, the Supreme Court may become more restrictive of
circumstances where it will assume jurisdiction, especially where the Provincial Court is available to
address the same issues in a timely and cost effective manner.
For myself, I try to leave issues regarding children and support in Provincial Court as much as I can
where:
(a)
one or both of the parties is on legal aid;
(b)
one or both of the parties is, or is likely soon to be unrepresented;
(c)
the children are young and issues of support at least are likely be on-going for some
time (so parents can handle it on their own, or try, after the initial decisions are made);
(d)
the Supreme Court is only needed for the divorce; and/or
(e)
the property issues are simple or are not likely to affect, or be affected by the other
issues.
IV. Service Outside British Columbia—A Contrary View
It has never made sense to me that the Provincial Court should have any less jurisdiction over custody
than the Supreme Court simply because of the lack of a specific rule for service on a party outside BC.
After all, Part 3 of the Family Relations Act is concerned with whether the children are properly before
the court, not the parents. If the children have a significant connection to the province, the court may
act. If they do not, the court may not act. It does not matter whether either B or both B of the
parents are beyond the reach of the court.
Furthermore, it makes very little difference whether the order is made in Provincial or Supreme
Court. Either order would have virtually the same effect within BC (except for the remedies of costs
or contempt) and entirely the same effect outside BC. The fact that the Supreme Court has a specific
rule providing for service outside BC does not make a Supreme Court order any more enforceable
outside the province.
To be sure, one of the main factors that a reciprocating court relies upon in deciding whether to
enforce an extra provincial order is whether the resident party has been given notice of, and an
opportunity to participate in the proceeding in which the order was made. This is why you would
want to give notice to an extra provincial parent, whether the rules allow for service outside the
province or not. (Also, often that parent will come to court anyway, and then you have jurisdiction.)
What does it matter whether a particular form of notice is recognized as “service”? Indeed, “service”
might be even less persuasive if it did not amount to actual notice (e.g., delivery to an out of date
address for delivery; or on a former counsel of record who has lost touch with his or her client; or
through substitutional service).
1.1.9
With respect, the Melissen case doesn’t help matters either. If a parent living outside the province can
accede to the jurisdiction of the Provincial Court, how does that solve the question of service? You
still have no rule allowing you to serve him or her; so if service is a precondition for proceeding, you
are met with the same difficulty. Unless the person actually appears on your application in some
fashion, you are stuck.
The matter is complicated even further by ADF v. ICF. In that case, the parties had lived in BC, had
instituted proceedings here and obtained orders. The child subsequently moved with the mother to
Mexico—with the permission of the court. The Court held that, because of the earlier proceedings,
the court still had jurisdiction over the mother and child.
Consider the converse of those facts. The family lives in Mexico. The mother and child come to BC
and set up residence here, without objection from the father. The father stays behind. There are no
proceedings, but a year or so later, the mother wishes to get an order for custody. Is she prevented
from doing so because the father has never attorned to this jurisdiction?
In the ADF case, the court feels it can make an order, even though neither child nor mother is within
its territorial jurisdiction. They could ignore the order with impunity—especially as Mexico is not a
reciprocating state. By contrast, on the facts I just proposed, the court could not act, even though both
mother and child have a significant connection to and live within the province. How can that make
sense?
Similar objections arise in the context of child protection proceedings. If the Provincial Court cannot
exert any jurisdiction over a child normally resident in the province just because one of the parents
lives outside our borders, then why is it that the Provincial Court routinely proceeds in such cases
under the Child, Family and Community Services Act?
Some answer that the CFCSA specifically provides for service outside the province. I have looked, and
I cannot find any such provision. What I do find are provisions in the Act and rules which allow the
court to dispense with or modify service (s. 69 and CFCSA Rule 6(10)). But these same provisions are
to be found in the Provincial Court (Family) Rules also (Rules 9(7) and 20(2)). None of these provisions
specifically provide for the Provincial Court to serve a party outside the province.
So if Hyde is right, if the law is that
(a)
without a specific rule allowing it to do so, the Provincial Court cannot serve a party
outside the province, and
(b)
without service on a parent, the court cannot make any order as to custody (including
custody of the Director),
then I do not see how this rule can apply any less to child protection hearings than to proceedings
under the FRA.
Either these propositions from Hyde must be wrong, or there will have to be a huge change in child
protection practice!
As to the first proposition, I think it must now be considered to be bad law given the decisions in
L.L.C. v P.G. and Smythe v. Bourgeois. Provincial court does have an inherent jurisdiction to govern its
own process, and if there is no specific rule to cover a situation, then, in the words of Judge Stansfield,
a judge may “cautiously and conservatively carve out such supplementary processes as may be
necessary to insure that justice is done.”
After all, what does the Supreme Court rule do other than simply provide for an increased response
time depending where the out of province parent resides, or including local custom as to the manner
of service (Rule 13(6) and (12))?
1.1.10
As for the second proposition, with the greatest of respect to Judge Collings, I believe that is wrong
also. While an action for child support is indeed an action in personam, an action respecting
guardianship of a child was considered at common law to be an action in rem. As such, service was
never a condition precedent for deciding guardianship of a child within the jurisdiction of the court. 2
I would argue that custody, too, is a matter concerning the status of a person (the child) and should be
treated as an action in rem.
In any event, as John Horn says in his book, Court Jurisdiction, 1989, it has long been accepted that the
province can by legislation define or extend the jurisdiction of its courts, and is has done so in both the
Court Jurisdiction and Proceedings Transfer Act and Part 3 of the FRA.
Section 3 of the CJPTA provides that
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 court’s
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.
Sub-paragraph (e) echoes the provisions of Part 3 of the Family Relations Act.
The Act is based on the uniform Court Jurisdiction and Proceedings Transfer Act drafted by the
Uniform Law Conference of Canada. In their commentary , 3 the reform conference commissioners
made the following comments on section 3:
Paragraphs (d) and (e) change current law, by replacing the criteria and of service of
process with the criterium of substantive connection with enabling jurisdiction.
And:
If the present act is adopted, the Rules of Court will still include rules as to service of
process, but these will no longer be the source and definition of the court’s territorial
2
In his comprehensive work, Court Jurisdiction, 1989, John W. Horn makes various recommendations for
reform, many if not all of which are incorporated in the Court Jurisdiction and Transfer of Proceedings Act.
At common law, he says in most cases the court did assume jurisdiction over a party by serving them
within the territory of the court, whether the individual or the subject matter had any real connection to
the province. This was for matters in personam, where the court is asking to adjudicate rights as between
parties, or to get an individual to do, or to refrain from doing a certain thing.
By contrast, in actions in rem the court is being asked to determine rights good as against the whole world.
This would include rights of ownership of real property situate in the province. He goes on to say,
however, that “many actions in personam result in the status of a thing or person being changed or
established against persons though not joined in the action.” (at 4) Such actions include the dissolution of
marriage, bankruptcy, the appointment of committees or guardians and adoption (at 4 and 89). These are
also considered judgments in rem. As such, service—while necessary to ensure certain affected parties have
notice of and an opportunity to participate in the proceedings—is not the foundation of, or necessary to
establish the court’s jurisdiction.
3
Go to ulcc.ca. Click on Statutes, and select the Uniform Court Jurisdiction and Proceedings Transfer Act.
The commentary is interspersed throughout the text of the statute itself.
1.1.11
competence. Their role will be restricted to ensuring the defendants, whether
ordinarily resident in or outside the jurisdiction, receive proper notice of proceedings
and a proper opportunity to be heard.
Section 10 of the Act sets out circumstances in which a “real and substantial connection” is presumed.
In The Conduct of Civil Litigation in British Columbia, Second Edition, the authors comment on the
lack of any specific resumption respecting family matters:
Section 10 does not include any presumptions relating the proceedings concerned
with family law because territorial competence in such proceedings is usually
governed by special statutes. For example, the Divorce Act sections 3 and 4, and the
Family Relations Act sections 44-46. (at 6-8)
The commentary on section 10 in the uniform act says much the same thing:
10.4 Section 10 does not include any presumptions relating to proceedings
concerned with family law. Since territorial competence in these proceedings is
usually governed by special statutes, it was felt that express rules in section 10 would
lead to confusion and uncertainty because they would often be at variance with the
rules in those statutes, which may have priority by virtue of section [12]. Fort his
reason it was felt better to leave the matter of territorial competence for the special
family law statutes. If the question of territorial competence in a particular family
matter was not dealt with in a special statute, the general rules in section 3 of this
Act, including ordinary residence and real and substantial connection, would govern.
Finally, s. 12 of the Act says
If there is a conflict or inconsistency between this part and another act of British
Columbia or of Canada that expressly
(a) confers jurisdiction or territorial competence on a court order, or
(b) denies jurisdiction or territorial competence to a court,
that other act prevails.
Therefore, based not only on the common law principles regarding territorial jurisdiction over a child
within the province, and on the basis of both the Family Relations Act and the Court Jurisdiction and
Transfer of Proceedings Act, Judge Collings’ assertion that service of process is essential to found the
jurisdiction of the court must be taken either to have been bad law at the time, or as having been
superceded by new law.
None of this, of course, detracts from a necessary judicial caution in taking jurisdiction over a child
when both parents are not before it; but neither should the lack of a specific service rule hamstring the
court when it would otherwise be proper to make an order. In modern times, when access to justice
and the cost of judicial proceedings are such important issues, surely the Provincial Court must resist
the impulse to send parties away on such a technically tenuous—and easily remedied—excuse.