As BC family and divorce lawyers, we act in all levels of courts in BC and Alberta including the BC Supreme Court on family and divorce matters and the Provincial Family Courts as well as the Courts of Appeal and of course in the Supreme Court of Canada where we have appeared twice successfully. Call us at 1 877 602 9900 for our assistance. We can’t protect your heart but we can protect your rights.
An important decision from our Court of Appeal deals with two vexing questions that has faced divorcing and separating family law litigants and their family lawyers for some time in BC that are:
- Which court to proceed in and what relief can be claimed in either of the Supreme and Provincial Family Courts and;
- Can one side change courts mid-stream or try to combine all relief including divorce, child custody, child support, spousal support, property division restraining orders and contempt to be dealt with at once by one court instead of partly in Provincial Family Court and partly in BC Supreme Court once two actions in two different levels of courts have been commenced.
In practical terms, it also deals with access to justice issues in areas of BC where there are long wait times for trials or interim hearings in Provincial Court as compared to the Supreme Court or vice versa. Some litigants may want to stall proceedings by staying in a court where there is a backlog while the other litigant is in need of relief promptly to prevent potential injustice and hardship.
Only the BC Supreme Court can grant a divorce, order spousal and child support under the Divorce Act and divide property and make findings of contempt.
Both the Supreme Court and Provincial Family Court can order spousal and child support under our Family Relations Act ( soon to be changed to the Family law Act) and custody under the Family Relations Act (soon to change to the Family Law Act).
What happens when a spouse starts a custody and support action in Provincial Family Court and the issues of divorce and property division are started by the other spouse in the Supreme Court? Is there a way to combine them so the Supreme Court deals with all of them at once or should the parties litigate part of the dispute in one court and the other part in another court. If not combined will the differing court time frames end up delaying or frustrating relief in each court?
In some locations there may be great delays in getting the matter heard in Provincial Family Court and lawyers have routinely sought to transfer all the competing claims in cases where both the Supreme and Provincial Court are concerned into the Supreme Court. The law in this area about whether this could in reality be done under section 8 of our Family Relations Act was unclear and contradictory.
A recent BC Court of Appeal case has clarified whether this procedure can be used on a routine basis or at all and the result of the decision is critical to family law litigants and their lawyers. The key point is to start your action in the Court you feel best meets your needs promptly before the opposing party does.
I set out the reasons of two Judges of the Court of Appeal who make it clear that the joining of actions of two courts into one court and the varying of a provincial court order by the Supreme Court is not permitted where the same issue is raised in both courts.
10] The overlapping jurisdictions of the Supreme Court of British Columbia and the Provincial Court of British Columbia in family law proceedings has produced a great deal of jurisprudence that is complex and confusing. It is very difficult for parties, lawyers and judges to find their way through the provisions of the Family Relations Act, the Divorce Act, and the case law which attempts to rationalize them.
[11] As a result, much time, effort and money is expended in proceedings which do nothing to resolve the parties’ substantive dispute. This is an unfortunate impediment to the parties’ access to justice.
[12] In this case, Mr. Ballinger seeks, and is entitled to have, a judicial second look at the Provincial Court consent order of 12 September 2006. He argues that the law permits him to proceed in the Supreme Court, because of the order of Saunders J. joining the Provincial Court and Supreme Court proceedings.
[13] The consent order of Saunders J. was granted on the unspoken and unwritten assumption that it could be made under s. 8(1) of the Family Relations Act. The provision reads as follows:
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.
[14] For the purposes of the present case, the relevant part of s. 8(1) is the requirement that the court making the order have before it “a proceeding under this Act.” The Supreme Court held in Legault v. Boyes, [1997] B.C.J. No. 1743 that the court may not employ this provision where the proceedings raised in the Supreme Court constitute the same matter as the proceedings raised in the Provincial Court. That is the situation in the present case. The application in the Supreme Court to vary or review the spousal support order does not amount to a separate matter from the possibility for reviewing the same order in Provincial Court. Thus, the order of Saunders J. was made without jurisdiction. The parties could not by consent confer on the court a jurisdiction that it did not otherwise have.
[49] Thus in my view, the joinder order was made without jurisdiction and the question on which leave to appeal was granted in this case ‒ whether the judge erred in finding he had no jurisdiction by virtue of the order under s. 8(1) ‒ falls away. The chambers judge was correct in finding that the Supreme Court ‘lacked jurisdiction’ to conduct a review of the Provincial Court order under the FRA, although I reach that conclusion because the statutory conditions for the application of s. 8(1) had not been met. Had they been met, I would have concluded that the Supreme Court could have carried out the review contemplated by the Provincial Court’s order of September 12, 2006, given the fact that a review is not a “variation” and that s. 8(1) is obviously intended to permit either court ‒ Provincial or Supreme ‒ to resolve family matters expeditiously. I respectfully agree with the Court in M.Y.A., however, that the juxtaposition of s. 8(1) and s. 8(2), and the more specific wording used in the latter, strongly suggest that a court may not, even with a joinder order, vary an order of the other court by virtue of the joinder.
[48] The question under appeal, however, is whether “in view of” the joinder order, the chambers judge “erred in finding he had no jurisdiction to conduct the review under an existing Provincial Court order.” I take this question to mean ‘whether despite the s. 8(1) order, the chambers judge erred in finding he lacked the jurisdiction to carry out a review of the Provincial Court order.’ The question assumes, however, that the order was valid, and I find that it was not. Section 8(1) requires that the court making the order have before it a “proceeding under this Act”. As has been seen, the orders sought in Supreme Court by Mr. Ballinger under the FRA were all related to spousal support, except for the (entirely superfluous) prayer for a declaration that all assets and debts have been divided. Given this, and the fact the date for the review of spousal support had not arrived when the appellant’s writ was filed, it seems to me that the purpose behind s. 8(1) ‒ to permit items that are pending in one court to be joined with “other matters” pending in another court ‒ was not engaged. No proceeding was pending in Provincial Court, and if a review proceeding had been pending, it would have been essentially the same “matter” as Mr. Ballinger was seeking to have determined in Supreme Court. Paraphrasing the comments of Master Horn quoted above in Legault, the proceedings in Provincial Court would not have concerned ‘another matter’ under the FRA which might be heard first or simultaneously with the claim for a review or the determination of spousal support in the Supreme Court. Such proceedings would have concerned the very matter at issue in the Supreme Court. (See para. 10 above.) The fact that relief under the Divorce Act was also sought by the appellant does not assist, since s. 8(1) is triggered only where there is a “proceeding under this Act”, i.e., under the FRA.
In the end result the Court of Appeal said the proper court to deal with the husband’s applications to vary support was the Provincial Court which had exclusive jurisdiction. Call us at 1 877 602 9900 for assistance. We can’t protect your heart but we can protect your rights.
