C.F. v. M.C., 2022 BCPC 262 (CanLII)
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2022 BCPC 262 |
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Date: |
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File No: |
21732 |
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Registry: |
Victoria |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
IN THE MATTER OF
THE FAMILY LAW ACT, S.B.C. 2011 c. 25
BETWEEN:
C. F.
APPLICANT
AND:
M. C.
RESPONDENT
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE GOUGE
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Appearing in person: |
C.F. |
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Counsel for the Respondent: |
J.D. Nelson |
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Place of Hearing: |
Victoria, B.C. |
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Date of Hearing: |
November 17, 2022 |
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Date of Judgment: |
November 18, 2022 |
[1] C.F. and M.C. are the parents of two boys, now ages 12 and 15. C.F. applies for an order to change the parenting-time schedule imposed by a previous order of this court.
[2] The first court order in this case was made on December 14, 2017. Since that time, there have been a total of 33 orders made in this case, 20 of which I made after I was assigned to the case in December, 2019. Some of those were interim orders and others final orders. They have addressed a very wide range of issues, some procedural and some substantive. In September, 2020, I appointed a parenting coordinator to assist in managing the day-to-day issues which commonly arise in conflicted families. The parenting coordinator was unable to facilitate agreement on those issues, and that experiment was subsequently abandoned. On April 14, 2021, I made a final order which: (i) conferred on M.C. all of the parenting responsibilities set out in section 41 of the Family Law Act RSBC 2011, c. 25; and (ii) established a parenting-time schedule, under which M.C. would have the children for 9 days, followed by 5 days with C.F., and continuing on that rotation. On May 11, 2022, I made an order which includes the following term:
Any further application by either party is to be brought to the attention of Judge Gouge and shall be filed in the Registry. The respondent on the application need not file a reply unless and until Judge Gouge gives leave for the application to proceed.
[3] On November 15, 2022, C.F. filed an Application About a Family Law Matter, in which he seeks an order that the boys “… be allocated time with their father and mother during school vacations on an equal basis to allow for sufficient time to visit family members …”. No affidavit was filed in support of the application. The application does not disclose any material change in circumstances which would justify a variation of the final order which I made on April 14, 2021.
[4] In Houwelling Nurseries Ltd. v Houwelling 2010 BCCA 315 (CanLII), [2010] BCJ No. 1201; 2010 BCCA 315, Justice Frankel said at paragraph 40:
What, then, can a court do to bring to an end the misuse of the litigation process caused by the repetitive filing of unmeritorious applications that result in the needless expenditure of judicial resources and, in some cases, unnecessary expense to other parties? The answer lies in the ancillary (inherent) jurisdiction that every court has to prevent its process from being abused. As Madam Justice Arbour stated in United States of America v. Shulman, 2001 SCC 21, [2001] 1 S.C.R. 616, an appellate court "like all courts, [has] an implied, if not inherent, jurisdiction to control its own process, including through the application of the common law doctrine of abuse of process": para. 33. See also: United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587 at para. 37.
I refer also to Holland v British Columbia [2022] BCJ No. 1502; 2022 BCSC 1388. In my view, the principles stated in those decisions do not simply authorize me to triage proposed future applications in this case. They impose an affirmative duty on me to control the process so as to prevent the sort of abuse described by Justice Frankel.
[5] I decline to permit C.F.’s most recent application to proceed to a hearing. M.C. need not reply to it.
(REASONS FOR JUDGMENT CONCLUDED)