Newsreal Archives/Critic' Corners


The advocate Vol.56 Part 4 July 1998

WHAT IS THE SCOPE OF PROVINCIAL COURT JURISDICTION UNDER THE FAMILY RELATIONS ACT

By Karl H. Eisbrenner

INTRODUCTION

On July, 24, 1996, Judge Lenaghan granted an interim ex parte order in Abbotsford Provincial Court allowing an application mother and two children of marriage exclusive occupancy of the family home and contents pursuant to section 77(now s.66 (2)(a)) of the Family Relations Act.

The following addresses some of the legal issues and related law concerning provincial court jurisdiction over such matters.

DOES THE PROVINCIAL COURT HAVE THE GRANT EXCLUSIVE OCCUPANCY ORDERS?

On July 31,1996 in the presence of the respondent, Judge Lenaghan reviewed and confirmed the terms of his previous order granting excusive occupancy. No appeal was taken. The decision apparently stands alone as a precedent that may raise important and wide-ranging questions regarding the scope of Provincial Court jurisdiction under the Family Relations Act.

For example, from a particular and limited perspective, the decision takes jurisdiction over exclusive occupancy of the family home and exclusive use of its contents into the Provincial Court arena. From a wider perspective, it raises general questions concerning the scope of the Provincial Court jurisdiction.

THE JURISDICTION OF THE PROVINCIAL COURT UNDER THE FAMILY RELATION ACT

The provincial legislature has granted the Provincial Court the following jurisdiction under the Family Relations Act, s. 6:

6.(1) The Provincial Court has jurisdiction in all matters under thei Act, except sections 31 and 38 (1)(c)(iv), Parts 5 and 6 section 125, respecting

(a) guardianship of the person of a child,

(b) custody of or access to a child,

(c) the parentage of a child,

(d) maintenance

(e) occupancy of the family residence and the 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.

(2) Nothing in this Act gives the Provincial Court the inherent jurisdiction described in section 5(3). Supreme Court jurisdiction under the Family Relations Act is set out as follows:

5.(1) The Supreme Court continues, subject to the Divorce Act (Canada), to have jurisdiction in all matters concerning the custody of, access to an guardianship of children dissolution of marriage, nullity of marriage, judicial separation, alimoney and maintenance.

(2) The Supreme Court has jurisdiction in all matters this Act.

3. This Act must not be construed as limiting or restricting the inherent jurisdiction of the Supreme Court to act in a parents capacity respecting a child before the court.

Although a literal reading of section 6 gives the Provincial Court jurisdiction to make orders about the " exclusive occupancy of the family residence and the use of its contents" . Subsequent judicial scrutiny, in my opinion, has distorted, deleted, contracted and abstracted the literal and ordinary meaning of the words. A brief summary of this process follows:

JUDICIAL INTERPRETATION OF S.6 OF THE FAMILY RELATIONS ACT

In reference Re Section 6 of the Family Relations Act, 1978, the BC Court of Appeal decided that the Provincial Court had no jurisdiction to make orders under subsection 6(1)(a) "guardianship of the person of a child", (b) "custody and access", (d)"maintenance"; and (e) "exclusive occupancy of the family home and use of its contents.

Mr. Justice Hinkson, writing for the court, concluded that these subsections were “beyond the power of the legislature” and consequently were “ultra vires the legislature of the province of British Columbia”.

This left to the Provincial Court jurisdiction over issues of © “parentage” and (f) “restraining persons from attending at the family residence”.

On appeal of this decision, in Reference Re Section 6 of the Family Relations Act, 1978: Attorney General of Ontario et al v. Attorney General of Canada, the Supreme Court of Canada sought the middle ground. In a role not dissimilar to “finding the balance” in the story of Goldilocks and the Three Bears, the court concluded that Provincial Court jurisdiction under subsection (a), (b), (c), [and] was “just right”, but that jurisdiction under (e) and (f) was “just not right”.

So citizens seeking exclusive occupancy orders of family residences and orders restraining persons from attending at family residences were required to attend at and to seek that relief in and from the Supreme Court of British Columbia and its federally appointed judges.

ORDERS RESTRAINING ATTENDANCE AT THE FAMILY RESIDENCE

Questions regarding “the making of orders that a person must no enter premises while they are occupied by a spouse, parent or child” (s.6(1)(f)) have arisen in at least two Provincial Court cases.

There, the presiding judges appear to have indirectly “created” Provincial Court jurisdiction, giving the court power to grant restraining orders on certain conditions. In the first case, such orders were available as and if they were incidental and ancillary to the granting of a custody order in Pronker v. Pronker, the Honourable Judge Chaperon held that:

Section 36, 1 and 37 (now ss.37 and 38 are clearly ancillary to this court's jurisdiction wit respect to custody of children, whose custody of children and are there to enable judges of our court to provide protection to children, whose custody we are dealing with, from the inappropriate acts of a parent, or indeed any person, by preventing that person from contacting them or entering premises where they reside.

Judge Chaperon went on (at p. 91) to say :

In my views, s. 37 of the Act does properly confer jurisdiction upon judges of this court to make orders, ancillary to custody orders, prohibiting a parent or any reason from entering premises where that child resides in order to ensure the child's safety and protection. Such jurisdiction is clearly ancillary to our jurisdiction over custody of children and necessary in some cases to ensure the best interest of children.

In Levassier v. Taylor, the honourable Judge Rae found that there must be a causal connection between the relief sought (i.e. A restraining order) and an ancillary custody right to invoke that relief under s.36.1 (now s.38) of the Family Relations Act.

In summary, the law in British Columbia “says ( since law is “always speaking”) that an order restraining a persons from entering family premises is within Provincial Court jurisdiction if that order is incidental, ancillary and causally related to the court making a custody order. Using this form of argument, subsection (f), which was as a “sheep out in the cold”, has been brought back into the fold.

Thus, exclusive occupancy of the family home and use of its contents (s.6(1)(e)) appears to be the only lost sheep and the Provincial Court has no jurisdiction to make orders granting exclusive occupancy and use. This was the case until the decision of His Honour Judge Lenaghan, sitting in Abbotsford Provincial Court in July 1996.

EXCLUSIVE OCCUPANCY ORDERS AND THE PROVINCIAL COURT

Assuming that the Provincial Court has jurisdiction to make orders restraining the attendance of persons at family residences if those orders are incidental, ancillary and causally related to custody orders, then it is only logical to conclude that exclusive occupancy of the family residence and the use of contents are within Provincial Court jurisdiction on the same basis. Is not a “family residence” the place where children usually reside?

In the gearing before Judge Lenaghan, no references were made to the Ponker and Ponker Levassier decisions. Judge Lenagham gane no reasons. In making the order he said:

What I am going to do is I am going to grant interim custody of the two children to Mrs. F. I am going to grant an order restraining Mr. F from harassing the children or Mrs. F, and I am going to grant an order pursuant to section 77 of the Family Relations Act granting exclusive occupancy...to Mrs. F and the two children, and a further order that peace officers accompany Mrs. F in order to effect that aspect of my order that she gets exclusive occupancy of the family home. [emphasis added]

On July 31, 1996, Judge Lenagham, in rendering to the previous ruling, said simply “very well, then the order that I made will be continued...” The argument before Judge Lenagham was based solely on the Law and Equity Act. It is interesting to note that the “enactments and declarations” of the Law and Equity Act were not mentioned nor argues in the B.C. Court of Appeal and in the Supreme Court of Canada.

Those courts reached different conclusions regarding the scope of Provincial Court jurisdiction in Reference Re Section 6 of the Family Relations Act and did so without dealing with the Law and Equity Act. IS THE PROVINCIAL COURT “A COURT” UNDER THE LAW AND EQUITY ACT?

The question may appear facile. However, the Law and Equity Act does not define “court”. Section 1 of the Law and Equity Act in the 1979 and 1996 consolidation, respectively, reads as follows:

The rules of law enacted and declared by this Act are part of the law of British Columbia and must be applied in all courts in British Columbia.

To determine the meaning of an undefined term, in statutes, it is appropriate to consider the words of other legislation, especially legislation purporting to have general scope and application. The Law and Equity applies generally to all legal decision making in the province.

Similarly, the Evidence Act of British Columbia has the same “umbrella-like” scope and has general application in provincial legal proceedings. In section 37 of the Evidence Act we read:

In section 38 “court means the court judge, arbitrator, person or persons before whom a legal proceeding is held or taken. An additional aid to legislative interpretation is found in the Interpretation Act.

8. Every enactment shall be construed as being remidial and shall be given such fair large and liberal construction and interpretation as best ensures attainment of its objects.

9. The title and preamble of an enactment are part of it intended to assist in explaining its meaning and object.

Plainly, the Law and Equity Act not only connects the words “law” and “equity”, but conjoins and fuses law and equity. In section 44 we read:

Generally, in all matters not particularly mentioned in this Act in which there is any conflict between the rules of equity and the rules of common law with reference to the same matter, the rules of equity prevail.

Although the Act does not define “rule of law”, we can conclude reasonably that the rules of law are made up of common law rules of equity. So, where rules of equity and rules of common aw apply to a matter, the rules of equity prevail.

The reasoning adopted in the Supreme Court of Canada decision in Kkv. GL and B.J.L (commonly cited as “King v. Roy”) by Mr. Justice McIntyre further supports the above conclusion. In King v. Roy, he cites with approval the words of Lord Cranworth in Hope v. Hope.

The jurisdiction of this court, which is entrusted to the holder of the Great Seal as the representative of the Crown, with regard to the custody of infants rest upon this ground, that it is in the interest of the State and of the Sovereign that children should be properly brought up and educated; and according to the principle of our law, the Sovereign, as parents, is bound to look to the maintenance and education (as far as it has the means of judging) of all his subjects, [emphasis added]

In my opinion these comments are part of the law of this province by incorporation under section 7 of the Law and Equity Act, which provides:

The court, and every judge of it, must recognize and take notice of all equities estates, titles and rights and all equitable duties and liabilities appearing incidentally in the course of any cause or matter in the same manner in which the court sitting in equity would have recognized and taken notice of those estates, titles, rights, duties and liabilities in any proceeding properly commenced in that court before April 29, 1879.

The “ground” of the principle of our law, according to a plain reading of the above is simple.

Jurisdiction of our regarding maters of custody is rooted in the principle that infants be properly raised and educated. It is out of this ground that our law sprouts, grows and develops. On another level, the emphasis in the law is upon the maintenance and education of all subject (citizens) is echoed in s. 33 of the Law and Equity Act.

In questions relating to the custody and education of infants, the rules of equity prevail. [emphasis added]

The wording in s. 33 is distinguishable from the wording of section 52(1), and the distinction is an important one. Whereas s. 33 refers generally to “questions relating t the custody and education of infants”, s.52(1) makes specific reference to specific proceedings:

In proceedings involving the guardianship, custody, access to or maintenance of a child the court must consider the best interest of the child. [ emphasis added]

All provincial legislation, however interpreted (i.e., literally, expansively, liberally or otherwise), is legislation made by a sovereignty of provincial power over property and civil rights, by definition, is and must be concerned with “ questions relating the custody and education of infants” and the principal of law that Sovereign's interest are all subjects be properly educated and maintained.

As a simple matter of public policy and legislative intent, such phrases as “for the social benefit of the province” or for the economic benefit of the province” can be meaningful only if they refer to the education and maintenance of our present and our future generations.

Consequently, it is my opinion that, whatever we mean by the word “equity” in the phrase “the rule of equity prevail”, equity carries with it a public interest and import that is distinguishable from th specifics of any one particular proceeding involving issues such as custody, guardianship etc.

From this perspective, the Provincial Court of British Columbia fits clearly and literally within the parameters of the phrase “all courts in the Province”, and as such, wherever the Provincial Court of British Columbia sits, it wields the powers set out in the enactment and declarations of the Law and Equity Act.

The efect of this reading places within the Provincial Courts the authority, power and jurisdiction to make orders grounded in the rules of equity. Equity grounds law in what is in our best interest and in the best interests of our children (present and future), namely, being properly brought up, maintained and educated.

If this jurisdiction is in the first instance available the Provincial Court, then in my opinion, there is no need for the Provincial Court to find such jurisdiction indirectly.

For example, there is no need for the Provincial Court to take full jurisdiction under section 6 of the Family Relation Act by having first to find itself adjudicating on custody and then being able to make orders for relief that are “incidental”, “ancillary” or “causally connected” to custody.

If Provincial Court jurisdiction to adjudicate on exclusive occupancy of, or restraint in attending at, family residences is dependent on first making a finding on custody, what of childless couples who seek such relief?

Are they forced, by virtue of being childless, to see redress in the Supreme Court? This conclusion, though untenable, seems to follow, if we limit ourselves to the Pronker and Levassieur reasoning.

The argument can be taken further. Blandly stated, the Provincial Court is a “court” within the meaning of that term in the Law and Equity Act (s.1) and so is mandated to grant all remedies any of the parties appear to be entitled to so to finally and completely determine maters in controversy between the parties (s.10).

If so, then the Provincial Court has no choice but to consider and to make a ruling on all matters in controversy between the parties. Clearly, exclusive occupancy of the family residence and use of its contents can be a matter of controversy between the parties without there being any controversy regarding custody of children. There may not ne any Children!

CONCLUSIONS

Pursuant to the Law and Equity Act, without any reference to proceedings involving the custody, education, guardianship or maintenance of children, it is my opinion that the Provincial Court has jurisdiction under s. 6 of the Family residence and the use of its contents.

Pursuant to the Law and Equity Act, the Provincial Court sitting in British Columbia has equitable jurisdiction. It is arguable that this jurisdiction allows the Provincial Court to exercise its authority to make decisions regarding property matters generally under the Family Relations Act.