IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           R.L.T. applies to have the application of S.S.B. and D.N.F., filed pursuant to Family Law Act (“FLA”), heard in Alberta and not British Columbia.  S.S.B. and D.N.F. are in a common-law marriage. They have applied for, amongst other things, joint guardianship and primary residence of the child, H.L.P. (the “Child”).  S.S.B. is the biological father of the Child. R.L.T. has sole guardianship of the Child pursuant to an Alberta Provincial Court order.

[2]           There is also a child protection file. There is no application before the court for the Child Family and Community Service Act (“CFCSA”) file to be heard in Alberta although the British Columbia Director has appeared on this matter as they are a Respondent in the FLA matter. The Director’s position is that they have no protection concerns with either S.S.B. or R.L.T. and will withdraw from the child protection proceedings in the near future with respect to these parties.  They do continue to have protection concerns with respect to the mother, C.G.P.  C.G.P. has not appeared on this jurisdictional application.

[3]           I must consider Part 4, Division 7, and specifically Sections 73 and 74 of the FLA in my determination of this issue.

[4]           The Child was born on [omitted for posting].  The Child was immediately removed from the mother’s care at birth by the Ministry of Children and Family Development (“MCFD”).

[5]           The mother is a member of the Klahoose Indian Band.  As a result the Secwepemc Child and Family Services (“SCFS”) were delegated by MCFD as the Aboriginal Agency responsible for the Child and the administration of the CFCSA.  C.G.P. did not advise SCFS of who the father was.

[6]           On June 13, 2011, there was an Aboriginal Family Group Conference (“AFGC”) concerning the development of a permanent plan for the Child.  In attendance at the AFGC were members of the extended family of the mother and the SCFS.  The father, nor any of his family members, was notified of, or in attendance at, the AFGC.  One of the participants from the mother’s family was R.L.T.  R.L.T. is the paternal aunt of one of the Child’s sisters.

[7]           At the AFGC it was agreed by all participants that the permanent plan for the Child would be to place the Child in the care of R.L.T. who was willing and able to care for the Child.  The plan was for R.L.T. to proceed with the adoption of the Child in Alberta.  This plan was supported by the mother at the AFGC and I am advised she continues to support this plan to this date.  The Child was transitioned into the care of R.L.T. in September of 2011, and has remained in her full time care in Alberta from December 16, 2011 to this date.

[8]           R.L.T. pursued the adoption of the Child. On February 8, 2012, the Government of Alberta completed a report which highly recommended R.L.T. as an adoption placement for the Child.  R.L.T. plans to file the adoption application of the Child in the Alberta Court of Queen’s Bench.  This court does not have the jurisdiction to address the adoption issue.

[9]           S.S.B. testified in this matter that the mother of the Child, C.G.P., advised him shortly after a brief relationship that she was pregnant with his Child. He says he initially believed he was the father and then began to question this.  He says in January, 2012, he became aware of the Child when R.L.T. spoke to D.N.F.  R.L.T. was attempting to contact S.S.B. because she was required to give notice to the biological father of her intention to apply for adoption of the Child.  S.S.B. agreed in cross that R.L.T. was trying to get him to take a paternity test and he refused.  He also agreed that he denied that he was the father of the Child. He said he was not going to submit to a paternity test until someone in authority told him he had to.  This occurred when SCFS requested that he provide such a sample.  D.N.F. appears to have had some influence on his decision to agree to the paternity test.

[10]        On May 18, 2012, the paternity test was returned and S.S.B. was identified as the father of the Child.  He filed his application for custody of the Child in this matter on June 12, 2012. At this time the Child was a resident of Alberta.  He believes that R.L.T. would have been advised of the positive result shortly after he received it.

[11]        S.S.B. testified that his only contact with the Child has been two phone calls and a few e-mails sent by him to the Child from which he has heard no response.

[12]        R.L.T. applied for guardianship of the Child in the Alberta Provincial Court and received such order on July 23, 2012.  She says she made this application to become a party to any legal proceedings and to enable her to put the Child onto her medical and extended health care plans.

[13]        There is a parallel file, as noted above, involving the Child and MCFD.  On October 6, 2010, an order was made granting continuing custody to the Director. That order was made by the Judge on the understanding that the father was not taking any position on the application.  S.S.B. successfully sought to have this order set aside and Madam Justice Griffin in her Judgment of April 16, 2014, sent the matter back to the British Columbia Provincial Court for a new hearing.  As noted before, there is no application before me that Alberta is the appropriate jurisdiction for the MCFD file. The Child remains under a temporary custody order pursuant to the CFCSA.

[14]        Division 7 of the Family Law Act sets out the legislation that needs to be applied by a court in determining “Extraprovincial Matters Respecting Parenting Arrangements”.  Section 73 sets out the purposes of this Division.  This includes that the decision must be based on the best interests of the child. The decision must also avoid the making of orders respecting guardianship, parenting arrangements and contact in more than one jurisdiction.  Finally the decision must provide effective enforcement and recognition of extraprovincial orders.

[15]        Section 74(2) of the Family Law Act sets out the test that I must apply in determining the appropriate jurisdiction in which a matter should be heard.  It reads as follows:

[16]        I have reviewed the cases provided to me by the Director.  I have found the case of S.O. v. Alberta (Child and Family Services Authority), 2012 BCSC 413, helpful in my analysis of the factors relevant to this application.  I have also reviewed the following cases of R.L.T.:

[17]        These cases are of assistance in providing an example of how courts have addressed similar issues.  Although some are closer factually than others to the matter before me, and therefore provide greater guidance, I find the decisions to be fact specific.

[18]        Pursuant to Section 74(2), one of the conditions must be satisfied for the court to make the order sought by S.S.B. and D.N.F.  S.S.B. and D.N.F. do not satisfy the condition found in Section 74(2)(a) as the Child was habitually resident in Alberta at the time they filed their application.

[19]        All of the factors set out in Section 74(2)(b) must be satisfied for the Applicant to meet this condition.  The evidence is that the Child was physically present in Alberta when the application was filed by the Applicants.  I also find that there will be substantial evidence of the best interests of the Child available in Alberta and not British Columbia. Finally I find that on a balance of convenience it is appropriate for Alberta to hear the father’s application and not British Columbia.  I make the finding on the last two factors because the habitual residence of the Child today and for the past three years has been Alberta. I also consider that the father’s contact with the Child at this stage has been extremely limited.  On this information I find that the overwhelming evidence on the best interests of the child will come from Alberta and not from British Columbia.

[20]        There is no evidence before me that would satisfy Section 74(2)(c).

[21]        For the reasons I have set out, I find that British Columbia is not the appropriate jurisdiction to determine S.S.B. and D.N.F.’s FLA application.  The appropriate jurisdiction for these issues to be determined, as of the date of this hearing, is Alberta.  For clarity the MCFD file, however, remains here in British Columbia although as noted above the Director, as they are entitled to, has indicated that they will be withdrawing their application shortly with respect to the Applicants.