Vancouver Anti Suit Jurisdictional Dispute Lawyers handle cases where a family law financial issue or a child parenting and guardianship issue could be decided in two different parts of the world. British Columbia’s Superior courts have power over both the person “in personam” and over property “in rem“. But what happens when one party wants the action decided elsewhere and one party wants BC to take charge of the family financial or child custody and parenting dispute?
In cases called “jurisdictional disputes” a BC judge will first decide if BC has jurisdiction at law BUT even if they decide BC has jurisdiction they may decline to decide the case in BC if there is a more proper and convenient place (“forum conveniens”). The area is very complex and our top rated* Vancouver Anti Suit Jurisdictional Dispute Lawyers will assess the comparative benefits and detriments of starting an action in BC or outside BC so we maximize the chances of success for you.
If BC does take jurisdiction what happens to the action someone else started outside of BC?
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In today’s Blog, Lorne N MacLean, QC head of our top rated* team of Vancouver Anti Suit Jurisdictional Dispute Lawyers answers the question: Can a BC Court restrain a party from commencing or continuing an action outside BC so only BC can decide the issue?
Quigg v. Quigg 2018 BCSC 853 is the latest case on the issue of how jurisdictional disputes can be first decided and then once a BC court takes jurisdiction what additional Orders can a BC Court make to ensure only BC decides the case. Anti-suit injunctions in family law cases are rare but can be obtained. Our Vancouver Anti Suit Jurisdictional Dispute Lawyers note our Family Law Act has a section that allows the court to Order a person in BC using its “in personam” powers to restrain a party from starting or continuing a family action outside BC once BC decides to take jurisdiction to decide the family law case.
[55] Mr. Quigg cannot meet the test for a non-suit action because the California court has not yet had a chance to rule on its jurisdiction: McMillan v. McMillan, 2012 BCSC 32 at para. 17. Ms. Anderson’s counsel sought to persuade me to distinguish McMillan and find that I need not apply the factors set out in Amchem strictly. As I explain below, I found that Ms. Anderson can receive the relief she seeks under the Family Law Act and I therefore decline to embark upon a modification of the existing case law regarding non-suit actions.
[56] I also find Section 221 of the Family Law Act, which addresses misuse of court process, inapplicable. It allows the court to prohibit a party from making “further applications or continuing a proceeding”, without leave of the court, where it is satisfied of one of three things: (a) the party’s application is trivial; (b) the party is conducting a proceeding in a manner that is a misuse of the court process, or (c) the party is otherwise acting in a manner that frustrates or misuses the court process. Counsel confirmed she found no case in which this section was invoked to enjoin a party from conducting proceedings in a foreign court. Instead, she relies on comments from Williams v. Williams, 2015 BCSC 928 as to the broad nature of the section.
[57] I do not find s. 221 applies to the facts before me. The three conditions in s. 221(1) under which this Court may prohibit a party from continuing “a proceeding” require a finding that the proceeding or application complained of is trivial or a misuse or frustration of “the court process”. In my view, the plain meaning is that the impugned proceeding or application arises in the same court whose process is alleged to be misused or frustrated. If it were not so limited, then this Court would be considering whether a foreign court’s proceedings were trivial or being misused or frustrated. Comity militates against such an expansive interpretation of that section. It is also telling that the opening words of s. 221(1) use the phrase “making further applications or continuing a proceeding” which both are more consistent with all the proceedings and process at issue being in the same court.
[58] It is also a basic tenant that British Columbia legislation and the authority of this Court do not, except in unusual circumstances carefully articulated, extend beyond its provincial borders. Certainly I would have expected to see explicit reference to proceedings commenced in foreign courts if that was intended to be the reach of s. 221.
[59] Ms. Anderson also sought the imposition of a $5,000 fine against Mr. Quigg pursuant to s. 221(2)(c)(iii), but I do not grant that because I do not find s. 221 to be applicable in these circumstances.
[60] Instead, I do find s. 227 of the Family Law Act to be applicable. Section 227 is based on this Court’s in personam jurisdiction over a litigant. It is very broad and ss. 227(c) permits the court to make an order that a party “do or not do anything, as the court considers appropriate, in relation to a purpose referred to in section 222”.
[61] Section 222 states that a court can make an order under subsection (b) to “manage behaviours that might frustrate the resolution of a family law dispute by an agreement or order”. In this case, I am satisfied that Mr. Quigg has acted in a manner that frustrates this Court’s process by filing the California action pursuing relief that is essentially moot. I am satisfied that doing so, is motivated by an attempt to interfere with the current trial set in this action for August 2018.
[62] Accordingly, pursuant to section 227 and the inherent jurisdiction of this Court, I hereby order Mr. Quigg to withdraw the California action he has commenced seeking guardianship and custody of his and Ms. Anderson’s two children. I also prohibit and enjoin him from making any application in any court other than this one for any relief relating to any matter addressed in the March 2015 and July 2016 orders granted in this litigation.
[63] I also dismiss Mr. Quigg’s application for an order that this Court refuse jurisdiction “in ongoing issues relevant to this family matter”. However, I do so on a procedural basis, based on the existing court orders, which I have found constitute the parties’ agreement to submit to this Court’s jurisdiction. I explicitly decline to make any findings on whether in the absence of those clauses in the orders and the parties’ consent, British Columbia or California would be the most appropriate forum for the issues raised by this litigation. I further decline to make any finding or decision about whether clauses granting jurisdiction to this Court by consent, can be varied. Thus, in my view, none of these issues are res judicata.
