



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



Reynolds
                v. Cheng,









2005 BCCA
            16




Date: 20050111




Docket: CA032389

Between:

Donald
      Ross Reynolds

Respondent

(
Plaintiff
)

And

Alice Chong
      Peck Cheng
a.k.a. Peck Cheng Chong a.k.a. Alice Peck Cheng Chong

Appellant

(
Defendant
)











Before:



The Honourable
            Mr. Justice Low





(In Chambers)









G.A. Lang



Counsel for the Appellant





J. Dubas



Counsel for the Respondent





Place and
            Date of Hearing:



Vancouver, British Columbia





16 December 2004





Place and
            Date of Judgment:



Vancouver, British Columbia





11 January 2005







Reasons for Judgment of the Honourable Mr. Justice Low:

[1]

The
      defendant wife in matrimonial proceedings in the Supreme Court of British
      Columbia filed a notice of appeal from an order of Melnick J. upholding
      an order of Master Scarth dismissing a motion brought by the wife seeking
      an order that the court decline jurisdiction.

[2]

Before
      me is a motion by the wife seeking directions as to whether leave to appeal
      is required, if it is required an order granting leave, and if leave is
      granted an order staying the proceedings in the trial court pending determination
      of the appeal.  By a cross motion, the plaintiff husband asks for dismissal
      of the appeal because leave to appeal is required and the defendant did
      not bring her motion for leave within the time required by the rules.

[3]

I
      think that leave to appeal is required.  The trial court rejected the argument
      that it should decline jurisdiction and the result was an interlocutory
      order.  It was not an order that finally determined any of the parties
      substantive rights in the action.  Had the court declined jurisdiction,
      the result might have been different.  This situation is analogous to adding
      parties.  Generally, there must be leave to appeal an order adding parties
      but an order refusing to add parties can be appealed as of right: see
Strata
      Plan VR2124 v. Indal Ltd.
, 2004 BCCA 611.

[4]

As
      to whether leave should be granted, I must consider the factors set out
      in
Power Consolidated (China) Pulp Inc. v. B.C. Resources Investment
      Corp.
(1988), 19 C.P.C. (3d) 396 (B.C.C.A.):

(1) whether the point on appeal is of significance
      to the practice;

(2) whether the point raised is of significance
      to the action itself;

(3) whether the appeal is
prima facie
meritorious
      or, on the other hand, whether it is frivolous; and

(4) whether the appeal will unduly hinder
      the progress of the action.

[5]

I
      have reached the conclusion that this appeal lacks merit, that the points
      raised are not of significance to the action or in general, and advancement
      of the appeal would cause an unacceptable delay of the trial of the action.  I
      am persuaded that the main issue the wife wishes to argue on appeal will
      be addressed at trial.

[6]

I
      will briefly state the basic facts and make reference to other facts in
      discussing the reasons for refusing leave to appeal.

[7]

The
      parties married in 1996 in Singapore.  Their son was born in 1999.  He
      is now almost six years old.  The husband is 54 years old and is a Canadian
      citizen residing in Vancouver.  The wife is 42 years old.  She is a citizen
      of Singapore with landed immigrant status in Canada.  She now lives in
      Singapore with her son.

[8]

During
      the course of the marriage, the wife lived during various periods in both
      Vancouver and Singapore, the husband living in Vancouver at all times.  In
      October 2003 the wife went to Singapore with the child, allegedly without
      telling the husband that she intended the separation to be permanent.

[9]

In
      November 2003 the wife started an action in Singapore for divorce, child
      custody, child support, and division of assets.  The husband appeared conditionally
      in that action and on 19 March 2004 he consented to an order there dealing
      with custody, access and child support.  The order of the master includes
      a provision declining jurisdiction over these issues.

[10]

The
      husband commenced action in this jurisdiction on 16 January 2004.  The
      order of the master is dated 9 July 2004 and the order of Melnick J. is
      dated 6 October 2004.  The appeal to the judge was based on the master
      erring in failing to decline jurisdiction, in dividing the issues to be
      heard between the two jurisdictions, and in failing to find on a balance
      of convenience that Singapore was the preferred jurisdiction for determining
      all issues between the parties.

[11]

Melnick
      J. concluded that the master properly dealt with the issue of the matrimonial
      domicile of the parties.  He continued:

[10]       The appellant left British Columbia in circumstances in which
      it was not apparent that she was going to be leaving British Columbia for
      good.  She apparently started a divorce action when she got to Singapore
      and that was served a couple of months later or close to a couple of months
      later on the respondent.

[11]       I must say that I agree with the appellant when he says that
      it may have been incorrect for the Master to have said that it was just
      a technical point that the Singapore action was ongoing at the time that
      the action here was commenced.  It is true that that action had not gone
      a long way down the road and indeed, even today has not gone a long way
      down the road as these actions go, but certainly has gone arguably somewhat
      further down the road than the action here, if for no other reason than
      this application.

[12]       There is property in British Columbia which is arguably matrimonial
      property.  There is property in Singapore and Australia which may be matrimonial
      property, although that is much less clear.  There may be an application
      for spousal support by the respondent although his right to spousal support
      is unclear with respect to his rights in British Columbia, but it is certain
      in Singapore because in Singapore, a male person is not allowed to obtain
      spousal support from a former female spouse.

[13]       In my view, the issue of comity was dealt with appropriately
      by the Master.  The circumstances of this case illustrate to me that just
      because someone is first out of the gate, particularly in the circumstances
      here where the action of the appellant in going to Singapore, starting
      an action before the respondent was even fully aware of the fact that she
      was leaving him, smacks somewhat of forum shopping.  She should not be
      rewarded for that under the guise of comity.  In my view the learned Master
      properly considered the law and came to the appropriate conclusion on the
      circumstances before her.

[14]       This was an application for the court to decline jurisdiction
      and in my view, in all of the circumstances before her, she quite properly
      did not decline jurisdiction other than with respect to the issues of the
      child, which pragmatically had been dealt with on an interim basis already
      in Singapore.

[12]

In
      this court, the wife wishes to argue that the chambers judge erred by not
      finding error in the reasons of the master.  She says that there was a
      misapprehension of the evidence as to the residence of the parties from
      time to time leading to a wrong conclusion as to matrimonial domicile;
      that there was error in finding that the husband had not attorned to the
      jurisdiction of the court in Singapore; and that there was failure to consider
      a question equality rights of the wife under s. 15 of the
Canadian
      Charter of Rights and Freedoms
.

[13]

I
      understand that the
Charter
argument arises out of a provision
      in the law of conflicts that the rights of the parties with respect to
      moveable property are determined by the law of the matrimonial domicile.  I
      am told that this issue was not raised before the master or the chambers
      judge.  It is not open to the wife to raise it for the first time in this
      court.  In any event, it appears to me the question of matrimonial domicile
      was not determined by the master.  It is an issue that remains to be determined
      at trial and it might govern whether the matrimonial property law of Singapore
      or of British Columbia is to be applied.  The evidence shows that matrimonial
      property law is not substantially different between the two jurisdictions
      and that the applicable law of Singapore is easily proved should the need
      to prove it arise.

[14]

There
      is no suggestion that the master wrongly stated the law to be applied on
      a determination of which is the more convenient jurisdiction to try a matrimonial
      dispute.  She made reference to the leading case of
Amchem Products
      Inc. v. British Columbia (Workers Compensation Board)
, [1993]
      1 S.C.R. 897 and correctly observed that the onus was on the wife to show
      that the trial court in this province was the less appropriate forum for
      the proceeding.

[15]

The
      evidence clearly supported the masters determination that the parties
      cohabited in this jurisdiction before and after their son was born.  She
      thought it reasonable that the last matrimonial domicile of the parties
      was here but said this point is not without controversy, properly leaving
      final settlement of the issue for the trial judge.  I see no merit in the
      wifes argument on the present application that the chambers judge failed
      to recognize the masters confusion of the issue of choice of jurisdiction
      with the issue of choice of law.  It is clear to me that the master discussed
      matrimonial domicile in the context of
forum conveniens
, not in
      the context of a conflict of law issue that, as I have said, she properly
      left for trial.

[16]

The
      master discussed each of the factors to be considered with respect to
forum
      conveniens
set out in
Stern v. Dove Audio Inc.
, [1994]
      B.C.J. No. 863.  I do not see in the wifes argument on this application
      any suggestion that the chambers judge erred in not finding this analysis
      to be wanting.  The master concluded:

[25]       There are factors weighing in favour of each jurisdiction
      as the appropriate forum.  In my view, with the exception of the claims
      relating to the child, the defendant has not clearly established that British
      Columbia is a
forum non conveniens
.

[17]

The
      wife says that the husband attorned to the jurisdiction of the Singapore
      court.  The husband says that this argument was not made to the master.  It
      is not clear to me that it was argued to the chambers judge but he said
      apparently the [husband] did not attorn to the jurisdiction of the Singapore
      court but entered what is called a conditional appearance.  Assuming leave
      might be granted on an issue not argued before the master in the first
      instance, and assuming the issue was fully argued before the chambers judge
      and his comment on it was in response and not merely a useful observation,
      I am not persuaded that there is any merit in the issue.  There was substantial
      evidence to support the conclusion that the husband did not attorn to the
      foreign jurisdiction in the proceedings commenced there by the wife.  I
      see no basis on which this court could rule otherwise.

[18]

In
      my opinion, there is no utility in this appeal for the litigants or for
      the profession in this area of law.  In addition, I am concerned that the
      appeal would unduly hinder the progress of the action that is now set for
      trial on 7 February 2005 having been adjourned twice already.

[19]

The
      application for leave to appeal is dismissed.  It is unnecessary to consider
      a stay of proceedings or the plaintiffs motion for dismissal.

The Honourable Mr. Justice Low


