B.C. court issues first dismissal of stay of relocation order under new provisions of Divorce Act

By Christopher Guly

Law360 Canada (August 3, 2023, 2:56 PM EDT) -- In the first British Columbia case examining family relocation issues under the federal Divorce Act, a judge with the province’s Court of Appeal dismissed an application for a stay of a relocation order in K.S.P. v. J.T.P. 2023 BCCA 303, released on July 25.

The appellant, identified as J.T.P. in the ruling — and who has been handed B.C. Supreme Court judgments against him over child support (K.S.P. v. J.T.P. 2021 BCSC 698) and in a civil action regarding a “violent incident” that involved his former wife, (K.S.P. v. J.T.P. 2021 BCSC 2209, now under appeal) — asked the appellate court for a stay of execution orders from B.C. Supreme Court Justice Heather MacNaughton in K.S.P. v. J.T.P. 2023 BCSC 1188, particularly the one in which the family trial judge permitted the couple’s children to relocate with their mother to her native Germany on Aug. 6.

The question presented to Court of Appeal Justice John Hunter was whether he had jurisdiction to stay a relocation order pending an appeal — and if he had jurisdiction, on what basis should the application be considered.

Counsel for K.S.P. argued that Justice Hunter did not have jurisdiction under both section 234 of B.C.’s Family Law Act, in which only the judge who issued an order may grant a stay, and rule 22-1(7) of the province’s Supreme Court Family Rules, which states that parenting issues are addressed in that court.

Justice Hunter concluded that under s. 234, he did not have jurisdiction to stay Justice MacNaughton’s orders related to parenting responsibilities. The relocation issue, however, was another matter.

It falls under s. 16.92 of the federal Divorce Act and not the Family Law Act, and therefore did not preclude Justice Hunter from considering an application for a stay in the relocation order, which K.S.P.’s counsel acknowledged.

Alison Ouellet, Dunnaway Jackson Ouellet & Associates

Alison Ouellet, Dunnaway Jackson Ouellet & Associates

“I don’t think there’s a prior case that has assessed that, partly because the relocation aspects of the Divorce Act only came out in 2019 when the law was amended,” said K.S.P.’s lawyer, Alison Ouellet, a partner with Vancouver-based Dunnaway Jackson Ouellet & Associates where she practises family law.

“It used to be that relocation issues were instances of custody made under the Gordon-Goertz test,” she explained, referring to the Supreme Court of Canada ruling, Gordon v. Goertz [1996] 2 S.C.R. 27, which set out guidelines for a change of residence through the lens of the best interests of the children involved — or under the relocation provisions of B.C.’s Family Law Act.

Ouellet said that Justice Hunter also adjusted the standard test for a stay, relying on a decision by the Alberta Court of Appeal, Y.M. v. D.T. 2021 ABCA 294, in which the court added the consideration that “if the child will suffer irreparable harm resulting from the granting or denial of a stay.”

In his oral reasons, Justice Hunter said that he was “not satisfied that refusing a stay would lead to irreparable harm to the children, as that term applies to matters involving parenting and children.”

“The breakup of a marriage can be expected to have a negative effect on children, particularly when the parents will be living so far apart and the relationship with one parent will be significantly affected. In this case, the trial judge gave extensive reasons explaining why it was in the best interests of the children to reside with their mother, and why it was in the best interests of the children to have considerable physical separation between their parents,” he said.

“I accept that the most significant negative effect of the relocation on the children will be the interference with their ongoing relationship with their father, who[m] the trial judge accepted had a close and loving relationship with the children. But I am not satisfied, in light of the extensive examples from the evidence provided by the trial judge and her reasoned conclusions that the relocation will result in irreparable harm to the children.”

Justice Hunter also raised J.T.P.’s potential appeal of K.S.P. v. J.T.P. 2023 BCSC 1188.

He said that J.T.P. “has placed extensive reliance on his anticipation that he will be successful in his appeal of the civil judgment [K.S.P. v. J.T.P. 2021 BCSC 2209). For that reason, he seeks a stay pending that decision, rather than pending the appeal of the family judgment.”

“If I conclude that a stay of the relocation is not warranted, and no other intervening order is made, the children should relocate with their mother on August 6, regardless of when the decision on the appeal of the civil judgment is released,” said Justice Hunter.

“I have some concern that even if the appellant’s appeal of the civil judgment is successful, an appeal of the family judgment may never take place. That concern is based on the unfortunate but very real cost of prosecuting an appeal of a 40-day trial.”

It was “an extraordinarily long family trial,” offered Ouellet. “Most are between five and 15 days.”

As Justice Hunter said: “It is clear from the family judgment that both parties have exhausted their resources in continuing this high-conflict case, and J.T.P. will have to give some serious consideration to whether the costs of an appeal are warranted, particularly in light of the strong reasons of the trial judge and the reluctance of this court to interfere with discretionary decision of trial judges in family law matters.”

Law360 Canada reached out for comment from J.T.P., who self-represented in the appeal, but received no reply.