



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Broad v. Pavlis,









2015 BCCA 20




Date: 20150115

Docket:
CA42149

Between:

Carmen Elizabeth Broad

Respondent

(Claimant)

And

Tyler Joseph Pavlis

Appellant

(Respondent)




Before:



The Honourable Madam Justice Saunders

The Honourable Madam Justice Levine

The Honourable Mr. Justice Goepel




On appeal from: An
order of the Supreme Court of British Columbia, dated August 12, 2014 (
Broad
v. Pavlis
, 2014 BCSC 1496, Kelowna Docket 100623).




Counsel for the Appellant:



J.A. Rose, Q.C.





Counsel for the Respondent:



D.M. King





Place and Date of Hearing:



Vancouver, British
  Columbia

December 11, 2014





Place and Date of Judgment:



Vancouver, British
  Columbia

January 15, 2015









Written Reasons by:





The Honourable Madam Justice Levine





Concurred in by:





The Honourable Madam Justice Saunders

The Honourable Mr. Justice Goepel








Summary:

Appeal
from an order that the B.C. Supreme Court has jurisdiction in a family law
proceeding. The respondent, who lives in B.C., brought the proceeding for
orders for child and spousal support under the Divorce Act, and to set aside an
equalization payment made under a settlement agreement on the ground that the
appellant fraudulently failed to disclose the true value of his business. The
parties were divorced in 2006 in divorce proceedings brought in Alberta, and
the settlement agreement was made in Alberta and is governed by Alberta law. The
appellants primary residence is in Alberta. He applied for an order staying
the B.C. proceeding on the ground that the B.C. Supreme Court lacked
jurisdiction, and if it has jurisdiction, it should decline to exercise it on
the basis that an Alberta court is the more appropriate forum. The chambers
judge held that the B.C. Supreme Court has territorial competence under
s. 3(d) of the Court Jurisdiction and Proceedings Transfer Act, R.S.B.C.
2003, c. 28, because the appellant is ordinarily resident in B.C. He has a
home in West Kelowna, B.C. where he spends 30 per cent of his time during
vacations and seeing his children. The chambers judge refused to decline
jurisdiction, finding that a B.C. court is the more appropriate forum. Held: appeal
dismissed. The chambers judge did not err in finding the appellant was ordinarily
resident in B.C. A person may be ordinarily resident in more than one place. The
appellant has a home in which he regularly, normally and customarily lives in
B.C. Nor did the chambers judge err in exercising his discretion to refuse
jurisdiction, having considered all of the factors in s. 11(2) of the CJPTA.
The B.C. Supreme Court has jurisdiction over the claims for child and spousal
support under the Divorce Act. The B.C. Supreme Court can apply Alberta law
with respect to the property matters to the extent that is necessary. The
expense and inconvenience to the respondent would be greater than that of the
appellant if there were proceedings in two jurisdictions.

Reasons
for Judgment of the Honourable Madam Justice Levine:

Introduction

[1]

The appellant, Tyler Joseph Pavlis, appeals from an order that the British
Columbia Supreme Court has jurisdiction to hear the family law claims of the
respondent, Carmen Elizabeth Broad, for child support, spousal support and
division of family property. The chambers judge found the B.C. Supreme Court has
jurisdiction because the appellant is ordinarily resident in B.C., and the B.C.
court is the more appropriate forum.

[2]

In my opinion, the appellant has not shown that the chambers judge made
any palpable and overriding error in finding the appellant was ordinarily
resident in B.C., nor made an error that would justify this Court interfering
with the exercise of his discretion in refusing to decline jurisdiction.

[3]

It follows that I would dismiss the appeal.

Background Facts

[4]

In 1996, the parties began co-habitating in Beaverlodge, Alberta. They
married on August 14, 1999, separated in November 2003, entered into a
settlement agreement in June 2006, and were granted a divorce on August 21,
2006. The parties have three children currently aged 18, 17 and 13.

[5]

In 2005, the respondent and the three children moved to Vernon, B.C. The
respondent continues to reside in Vernon with the youngest and oldest children
(in January 2014, the middle child moved to Beaverlodge to live with the
appellant). The appellant continues to reside in Beaverlodge. The chambers judge
found that he spends approximately 30 per cent of his time at a vacation home
in West Kelowna, B.C., which was the basis for the finding that he is
ordinarily resident in B.C.

[6]

The parties matrimonial dispute was the subject of family law
proceedings in the Alberta Court of Queens Bench commenced by the respondent
in Grande Prairie, Alberta in November 2003. Both parties were represented by
counsel.

[7]

In the settlement agreement entered into in June 2006, the respondent
accepted a payment of $1 million [t]o effect an equal division of the
matrimonial property acceptable to the parties (settlement agreement, s. 6.1).
This included her claim to Domart Energy Services Ltd., an Alberta-registered
company started by the appellant and his brother in the mid-1990s. The
respondent waived her claim to spousal support, and the appellant agreed to pay
child support in the amount of $6,500 per month as well as his proportionate
share of expenses under s. 7 of the
Federal

Child Support
Guidelines
, SOR/97-175.

[8]

An order of the Alberta Court of Queens Bench granted the divorce on
August 21, 2006, and ordered the terms of child support. It also required the
parties to exchange income tax information annually. The parties only exchanged
this information in 2011.

[9]

In February 2007, approximately seven months after the parties entered
into the settlement agreement, the appellant and his brother received an offer
of $25.5 million to purchase the assets of Domart Energy. The sale completed in
2007.

[10]

The respondent commenced this proceeding in B.C. Supreme Court on
November 5, 2013. She claims that the appellant fraudulently failed to disclose
the true value of Domart Energy at the time of the settlement agreement. She
also seeks spousal support and increased child support.

[11]

The appellant takes the position that the B.C. Supreme Court lacks
jurisdiction over the matters in dispute, in particular relating to the value
of Domart Energy, and if it has jurisdiction, it should decline to exercise it
on the basis that an Alberta court is the more appropriate forum to hear the
proceeding.

Statutory Provisions

[12]

The issues on this appeal turn on the interpretation and application of
ss. 3 and 11 of the
Court Jurisdiction and Proceedings Transfer Act
,
S.B.C 2003, c. 28, the relevant parts of which provide:

3. A court has territorial competence in a proceeding that is
brought against a person only if



(d) that person is ordinarily
resident in British Columbia at the time of the commencement of the proceeding,
or

(e) there is a real and substantial
connection between British Columbia and the facts on which the proceeding
against that person is based.



11 (1) After considering the interests of the parties to a
proceeding and the ends of justice, a court may decline to exercise its territorial
competence in the proceeding on the ground that a court of another state is a
more appropriate forum in which to hear the proceeding.

(2) A court, in deciding the question of whether it or a
court outside British Columbia is the more appropriate forum in which to hear a
proceeding, must consider the circumstances relevant to the proceeding,
including

(a) the comparative convenience and
expense for the parties to the proceeding and for their witnesses, in
litigating in the court or in any alternative forum,

(b) the law to be applied to issues
in the proceeding,

(c) the desirability of avoiding
multiplicity of legal proceedings,

(d) the desirability of avoiding
conflicting decisions in different courts,

(e) the enforcement of an eventual
judgment, and

(f) the fair and efficient working of the Canadian legal
system as a whole.

[13]

The chambers judge also referred to s. 12 of
CJPTA
, which
provides:

12 If there is a conflict or inconsistency between this Part
and another Act of British Columbia or of Canada that expressly

(a) confers jurisdiction or
territorial competence on a court, or

(b) denies jurisdiction or
territorial competence to a court,

that other Act prevails.

Chambers Judges
Reasons

[14]

A case management judge ordered that the jurisdictional issue be heard
before any further steps were taken in the proceeding.

[15]

In an order dated August 12, 2014, the chambers judge declared that the
B.C. Supreme Court has territorial competence in this matter, and dismissed the
appellants application that the court decline to exercise its jurisdiction.

[16]

The chambers judge reviewed the relevant provisions of the
CJPTA
.
He concluded that the B.C. Supreme Court has territorial competence under
s. 3(d) of the
CJPTA
because the appellant has been ordinarily
resident in B.C. since the proceedings were commenced, based on the
significant amount of time spent at his vacation home in West Kelowna (at para. 50).
He found that a person may be ordinarily resident in more than one jurisdiction
(at para. 51).

[17]

The chambers judge found that for the purpose of s. 3(e) of the
CJPTA
,

there was no real and substantial connection between B.C. and the facts on
which the proceeding was based (at para. 54). He noted that the facts relate
to the valuation of Domart Energy, an Alberta business (at para. 55). The
respondent alleged that the West Kelowna vacation home was purchased with
proceeds from the sale of Domart Energy, but the chambers judge noted that she
was not making an
in rem
claim against the appellants property in B.C.
(at paras. 56 and 59). This finding is not in issue on the appeal.

[18]

The chambers judge turned to consider whether a B.C. or Alberta court is
the more appropriate forum to hear this proceeding, applying s. 11(2) of
the
CJPTA
. He specifically identified three factors why the B.C. Supreme
Court should not decline jurisdiction: taking jurisdiction would enhance the
fair and efficient working of the Canadian legal system (s. 11(2)(f)) (at para. 65);
refusing jurisdiction would ensure a multiplicity of proceedings as the spousal
and child support matters are properly raised in B.C. (s. 11(2)(c)) (at para. 66);
and exercising jurisdiction avoids conflicting decisions from different courts
(s. 11(2)(d)) (at para. 67).

[19]

He also considered the other factors set out in s. 11(2). He agreed
with the respondent that the comparative convenience and expense for the
parties militates in favour of the action continuing in B.C. (s. 11(2)(a)) (at paras. 62-63).
He found that enforcing a B.C. judgment would not be an issue (s. 11(2)(e)) (at
para. 69); the inconvenience of having to bring in Alberta witnesses did
not outweigh the other factors (s. 11(2)(a)) (at para. 70); and although
the focus of the dispute will be the Domart Energy issue, to the extent that
the determination of the issue of whether the appellant disclosed the
information he was required to revolves around Alberta law, the B.C. Supreme
Court is capable of applying it (s. 11(2)(b)) (at para. 72).

[20]

The chambers judge noted further that the B.C. Supreme Court has
jurisdiction over the respondents claims for child and spousal support under
the
Divorce Act
, R.S.C. 1985, c. 3 (2nd Supp.). Under s. 12 of
the
CJPTA
, the
Divorce Act
prevails (at para. 73). He
expressed the view that the most important aspect of this proceeding when it
goes to trial is ensuring adequate spousal and child support (at para. 73).

Ordinarily Resident

[21]

The appellant claims the chambers judge erred in finding he was
ordinarily resident in B.C. for the purpose of s. 3(d) of the
CJPTA
.

[22]

The seminal authority on the meaning of
ordinarily resident is the decision of the Supreme Court of Canada in
Thomson
v. Minister of National Revenue
, [1946] S.C.R. 209. In that case, four of
five justices found Mr. Thomson was ordinarily resident in Canada for tax
purposes, based on the time he spent and his settled life at a home in New
Brunswick, while at the same time he kept a home in North Carolina in the
United States.

[23]

The appellant says the chambers judge failed to consider
whether the time he spent in B.C. was consistent with regularly,
normally or customarily living in the place, or whether it was consistent with
residing in a temporary place of abode. He says the trial judge referred only to
the 30 per cent of his time that he spends in his West Kelowna home, but failed
to analyze the manner in which he spends that time, which he says is primarily
for vacations.

[24]

The appellant relies on the definition of
ordinarily resident articulated in
Thomson
by Justice Estey (at
231-232) that a person is ordinarily resident in:

the place where
in the settled routine of his life he regularly, normally or customarily lives.
One sojourns at a place where he unusually, casually or intermittently visits
or stays. In the former the element of permanence; in the latter that of the
temporary predominates.

[25]

He also cites Justice Rands statement (at 224):

The expression
ordinarily resident carries a restricted signification, and although the
first impression seems to be that of preponderance in time, the decisions on
the English Act reject that view. It is held to mean residence in the course of
the customary mode of life of the person concerned, and it is contrasted with
special or occasional or casual residence. The general mode of life is,
therefore, relevant to a question of its application.

[26]

The chambers judge applied Justice Esteys
definition of ordinary residence as adopted in
Blazek v. Blazek
, 2009
BCSC 1693 at paras. 31-35, where Madam Justice Gropper determined whether
a person was ordinarily resident for the purpose of s. 3(d) of the
CJPTA
.
Madam Justice Gropper applied a broad and liberal interpretation to the concept
of ordinary residence, noting that Estey J. said, in addition to the statement
quoted above: It is well established that a person may have more than one
residence, and that it is not a matter of counting the days spent in the
jurisdiction (at 232).

[27]

The respondent supports the chambers judges decision factually by
filing an application to adduce fresh evidence, and legally by citing
the recent decision in
Knowles v. Lindstrom
, 2014 ONCA 116,
where the Ontario Court of Appeal found, also relying on the principle
articulated in
Thomson
that a person can be ordinarily resident in more
than one place, that Ontario had jurisdiction in family law proceedings for a
couple that lived in both Florida and Ontario.

[28]

The respondents fresh evidence is the
appellants Form 8 Financial Statement, which was filed on October 30, 2014,
and provided to her counsel on November 7, 2014. The respondent argues that
this evidence bolsters the chambers judges conclusion that the appellant is
ordinarily resident in B.C. by demonstrating the extent to which his income is
derived from and his business activities are carried on in B.C.

[29]

The Form 8 disclosure includes information about
two B.C. companies owned by the appellant from which he receives income, and
that he owns land in B.C. It also establishes that the West Kelowna property is
valued at more than $2 million, which is more than twice the value of the
appellants primary residence in Beaverlodge.

[30]

The respondent submits that the fresh evidence
is admissible pursuant to the test from
Palmer v. The Queen
, [1980] 1 S.C.R.
759: it was not discoverable by reasonable diligence before the chambers
application because although her counsel had requested the information, it was
not provided; it is credible because it was prepared for use in litigation by
the appellant; it bolsters the conclusion of the chambers judge on the
appellants residency; and it assists this Court in affirming that conclusion.

[31]

While the fresh evidence meets the due diligence and
credibility tests, it does not significantly buttress the chambers judges
conclusion on the appellants ordinary residence. At most, it confirms that the
appellant maintains multiple residences and that he uses Beaverlodge as his
primary residence. The relative values of his properties is not determinative
of ordinary residence; nor does the fact that the appellant derives income from
B.C. companies support a finding that he is ordinarily resident in the absence
of further information.

[32]

I would not admit the fresh evidence.

[33]

In
Knowles
, the Ontario Court of Appeal applied
Thomson
in finding the respondent to a family law proceeding was ordinarily resident
in Ontario. The claimant (a Canadian citizen) and the respondent (an American
citizen) lived in a common law relationship in Florida from 2002 to 2012. At
the end of the relationship, the claimant returned to Ontario, where she lived
and worked prior to 2002, and applied for spousal support pursuant to the
Family
Law Act
, R.S.O. 1990, c. F.3, and a declaration of beneficial
ownership of two Muskoka-area properties purchased by the respondent or his
company during their relationship. The parties spent between 40 to 60 per cent
of their time in Muskoka after the purchase of the first property in 2007.

[34]

In finding jurisdiction, Mr. Justice Doherty, for
a unanimous court, relied in part on the presumptive connecting factor of
ordinary residence (at para. 27). Like the chambers judge in this
proceeding, Doherty J.A. noted the conclusion in
Thomson
that a person
can be ordinarily resident in more than one place, and found that persuasive in
light of the type of lifestyle lived by the claimant and the respondent (at paras. 31-32).
Specifically, Doherty J.A. referenced Estey J.s statement in
Thomson
that [i]t would appear that the appellant was maintaining more than one
residence to which he could and did come and go as he pleased (at 231). Mr. Justice
Doherty cited with approval the chambers judges conclusion that the couple
resided in Ontario on a regular basis for part of every year, for months at a
stretch, for more than five years. That amounts to ordinary residence (at para. 31).

[35]

Knowles
draws on
Thomson
to find that a type of lifestyle may be more conducive to finding a person
ordinarily resident in more than one location. This lifestyle is one of a
person with significant financial means who maintains residences in more than
one place as part of their normal course of living.

[36]

This appears to mirror, albeit on a smaller financial
scale, the circumstances in these proceedings. There is no dispute that the
appellant is ordinarily resident in Alberta. T
he appellant also has a
residence in B.C. in which he regularly, normally and customarily lives
during relatively lengthy vacation periods. It is not a residence where he
unusually, casually or intermittently visits or stays. It is part of the
settled routine of his life to spend months of each year at the West Kelowna
house.

[37]

Thus, it was open to the chambers judge to conclude
that the appellant is ordinarily resident in B.C. given that he maintains and
regularly returns to the West Kelowna home as a place for vacation and family
time.

[38]

The chambers judge applied the proper legal test in determining whether
the appellant is ordinarily resident in B.C. The application of that test to
the facts is a question of fact which is reviewable by this Court only if the
judge made a palpable and overriding error. There is no such error.

[39]

I would not accede to this ground of appeal.

The Appropriate Forum

[40]

The appellant claims the chambers judge erred in not finding that
Alberta was a more appropriate forum than B.C. for the hearing of this
proceeding. He argues that the chambers judges statement that the heart of
the dispute is the sale of Domart Energy (at para. 18), and his finding
that there is no real and substantial connection between B.C. and the facts on
which the proceeding is based, required him to conclude as a matter of comity
that a B.C. court should not apply Alberta law to, in effect, sit in judgment
over proceedings that took place in Alberta. He also argues that jurisdiction
over the support claims under the
Divorce Act
should not lead to a
conclusion that the B.C. court has jurisdiction over all of the claims.

[41]

It will be helpful at this point to set out some of the applicable legal
considerations relating to the respondents claims in this proceeding.

[42]

First, it is not in dispute that the B.C. Supreme Court has jurisdiction
under the
Divorce Act
over the claims for child and spousal support.

[43]

In 2006, the Alberta Court of Queens Bench ordered that the parties
were divorced and the terms of child support. The order referred to the
parties agreement with respect to spousal support in the introductory
recitals: AND UPON the Court being advised that the Plaintiff and the
Defendant have agreed to a mutual waiver of spousal support. No order for
spousal support was made.

[44]

The respondents claims for child and spousal support are therefore a
claim for a variation of the child support order and for an originating order
for spousal support. B.C. has jurisdiction over both claims under ss. 4
and 5 of the
Divorce Act
, both of which provide:

(1)        A Court in a province has jurisdiction to hear and
determine a corollary relief [s. 4] [variation [s. 5]] proceeding if

(a)        either
former spouse is ordinarily resident in the province at the commencement of the
proceeding; or

(b)        both former spouses accept the jurisdiction of
the court.

[45]

As the chambers judge pointed out, s. 12 of the
CJPTA
gives
priority to the
Divorce Act
over jurisdiction (at para. 73). Thus,
a B.C. court cannot order that an Alberta court is the more appropriate forum
to hear the support claims. Having commenced the proceeding in B.C., unless the
respondent accepted the jurisdiction of an Alberta court to hear the support
claims, a decision by a B.C. court that an Alberta court is the more
appropriate forum for the Domart Energy issue inevitably results in proceedings
in both jurisdictions.

[46]

Secondly, the validity of the settlement agreement is a matter of
Alberta law. The relevant parts of the settlement agreement provide:

23.       MATERIAL NON DISCLOSURE

23.1     The Husband and Wife each acknowledge that the other
has a general knowledge of the others financial affairs. They have both been
fully advised as to their entitlement to a full disclosure and valuation of
each others assets, liabilities and income.

23.2     If either party, inadvertently or by design,
conceals, neglects to reveal, alters or distorts any material information or in
way [
sic
] misleads the other party, either directly or by any person
acting on his or her behalf, and giving information which is material to these
covenants, the provisions of these agreements shall be vacated and such
particulars as may permit the other party to obtain a proper distribution of
the property or rights as may be effected.

24.       GOVERNING LAW

24.1     This Agreement shall be
construed and governed in accordance with the Laws of the Province of Alberta.

[47]

The respondent seeks, in part, to set aside the terms of the settlement
agreement in respect of Domart Energy, which include the equalization payment
of $1 million and her waiver of spousal support. Her acceptance of those terms
of the settlement agreement was based, she says, on the appellants failure to
disclose the true value of the business. She points to the terms of s. 23.2
of the settlement agreement. Under s. 24.1 of the settlement agreement,
its interpretation is governed by Alberta law.

[48]

In her amended notice of family claim in this proceeding, the respondent
relies on provisions of the
Family Law Act
, S.B.C. 2011, c. 25, the
Matrimonial Property Act
, R.S.A. 2000, c. M-8, and claims under
common law including unconscionability and unjust enrichment.

[49]

Thirdly, there is no evidence that the Alberta Court of Queens Bench
made any decisions or orders concerning the settlement agreement. As noted
above, the order made in the divorce proceeding dealt with child support, and
simply recited the respondents waiver of spousal support.

[50]

The chambers judge was clearly alive to these applicable legal
considerations in his consideration of whether an Alberta court was a more
appropriate forum. He recognized that refusing jurisdiction over the matrimonial
property issues arising from Domart Energy and the settlement agreement would
lead to a multiplicity of proceedings because B.C. has jurisdiction over the
support claims under the
Divorce Act
(at paras. 66 and 73). He was
aware that the issues of support and the terms of the settlement agreement are
intertwined, giving rise to the possibility of conflicting decisions from
different courts if the proceeding was divided between B.C. and Alberta (at para. 67).

[51]

The chambers judge acknowledged that the issue of the appellants
disclosure revolves to some extent around Alberta law, and concluded that the
B.C. Supreme Court is capable of applying it (at para. 72). Much of the
relevant law is not statutory but based on common law principles, which are
common to both provinces. The legal issues are not complex. While expert
evidence on Alberta law may be necessary and witnesses may have to come from
Alberta, the chambers judge considered these matters and concluded that they
were not significant compared to the factors favouring B.C. (at paras. 70-72).

[52]

The chambers judge also considered the parties relative circumstances
in concluding that the comparative convenience and expense for the parties
militates in favour of B.C. (at paras. 62-63). Declining jurisdiction over
the Domart Energy and settlement agreement issues would result in the
respondent having to bring proceedings in two jurisdictions. The inconvenience
and expense would clearly be greater for her than for the appellant. He has a home
in B.C. in which he can reside whenever necessary to participate in the
proceeding, while she would be required to travel and reside in Alberta. His
means to support the litigation are clearly greater than hers.

[53]

This Court has held that a decision as to the appropriate forum under
s. 11 of the
CJPTA
is a discretionary one, which 
ought
not to be interfered with unless it is shown that [the judge] took into account
irrelevant considerations, failed to take into account mandatory
considerations, or was otherwise clearly wrong in the exercise of his
discretion: see
Olney v. Rainville
, 2009 BCCA 380 at para. 39.

[54]

In my view, there is no basis to find that the chambers judge made any
error with which this Court would interfere.

[55]

I would not accede to this ground of appeal.

Conclusion

[56]

The appellant has not shown that the chambers judge made any reviewable
error in determining that the appellant is ordinarily resident in B.C., and
that a B.C. court is the more appropriate forum to hear this proceeding.

[57]

I would refuse the application to adduce fresh evidence and dismiss the
appeal.

The Honourable Madam Justice Levine

I agree:

The
Honourable Madam Justice Saunders

I agree:

The Honourable Mr. Justice Goepel


