Orders of the Day

Hon. M. Farnworth: In this chamber, I call committee stage, Bill 8, Attorney General Statutes (Hague Convention on Child and Family Support) Amendment Act.

In Section A, the Douglas Fir Room, I call Committee of Supply estimates on the Ministry of Mental Health and Addictions.

Committee of the Whole House

BILL 8 — ATTORNEY GENERAL STATUTES
(HAGUE CONVENTION ON CHILD AND
FAMILY SUPPORT) AMENDMENT ACT, 2022

The House in Committee of the Whole (Section B) on Bill 8; J. Tegart in the chair.

The committee met at 2:40 p.m.

On clause 1.

Hon. D. Eby: I’ll introduce the staff joining me today — Darryl Hrenyk, legal counsel, Ministry of Attorney General, on housing and policy and legislation division.

I look forward to the member’s questions.

M. de Jong: To put the conversation we’re going to have into some kind of context, the Attorney knows that the House, I think, at second reading indicated a broad level of support for what the government and he are endeavouring to do with respect to the Hague convention.

Maybe, before we get into a few of the individual sections, the minister could put on the record, for the purposes of the committee, what this Hague convention on child and family support is endeavouring to do, when Canada became a signatory and ratified, and explain the role that the province plays with respect to breathing life into that — those steps taken by the federal government and the federal parliament.

Hon. D. Eby: This convention was completed in 2007 but wasn’t in force anywhere until 2013, when two signatory countries — the first two were Norway and Albania — ratified it. We could not enact this implementing legislation until the federal government officially became a signatory country and enacted ratifying legislation, because the convention is an international instrument, not domestic law.

Canada formally became a signatory on May 23, 2017. In June of 2019, Canada amended the federal Divorce Act that, when those are brought into force, will ratify the convention and make it possible to apply it in whatever province and territory is ready. That’s what we’re aiming to do here today — to be ready for that.

This convention itself functionally just makes it possible for us to transmit documents between countries where parents are located. There will be a parent here in British Columbia. There will be a parent in another country. The documents can be transmitted through a central authority that will ensure that those documents are put in front of a competent court to be able to resolve the issue.

M. de Jong: Broadly speaking, we’re talking about two possible circumstances here. Well, I’m going to make that statement, and if that’s not the case, the Attorney can correct me.

[2:45 p.m.]

A circumstance where a child is located either in British Columbia or elsewhere, but an order for that child’s maintenance has been obtained in a jurisdiction outside of British Columbia and outside of Canada that the custodial parent is wishing to bring and have enforced in British Columbia. I think the term the convention uses is “enforced against the debtor.” I think that’s the term that is used in the convention.

Then the second circumstance where a custodial parent obtains an order in the B.C. courts for the support of a child, and it’s seeking to have that order enforced in a jurisdiction outside of Canada where the debtor is believed to be located.

Is that, broadly speaking, the two circumstances that we’d be dealing with here?

Hon. D. Eby: Generally speaking, yes.

M. de Jong: The next question I’m going to ask, only because a few people have asked me. I ask it not in an accusatory way, because the Attorney only became the Attorney in 2017. I recognize that Canada, as he has just said, didn’t become a signatory to the convention until that year and then ratified it a couple of years thereafter.

I’m told that Canada played a pretty leading role, or a pretty significant role, in the drafting of this convention dating back to 2007, yet here we are, some 14 years later. Again, I ask this not, as is frequently the case in this chamber, in an accusatory way against this government or this Attorney. But this takes a long time, and we’re not there yet. At some point, I’m going to probably ask the Attorney for some indication of how long he thinks it will take for all of Canada to introduce the legislation required to fully operationalize this convention within Canada.

Let’s start with just some thoughts on the length of time that it takes for this work to be done internationally and, in this case, within Canada.

Hon. D. Eby: The member is right. This has taken a long time, and it will take longer than just us passing this bill, although hopefully not too long. After we pass this bill, we’ll still need Canada to bring into force their amendments from June 2019 that ratified the convention, once we’re ready.

The member is right that this was completed in 2007. The first six years the convention was not in force at all. It required two signatory countries to take the first steps to ratify it, and that happened in 2013.

As for us at the provincial level, as the member has said, Canada only formally became a signatory country in 2017, so that was a decade after the drafting of the convention. It took two more years after that to make the amendments to the federal Divorce Act, which signalled to us in B.C. that we should get in a position to be ready for when the federal government ratifies the convention, which is what’s happening now.

I understand that time was taken by an FPT, federal-provincial-territorial, working group of family justice officials to complete a draft uniform implementation act to enable provinces to more easily implement it.

Bill 8 is based on provisions in the draft act that took several months of B.C. drafting time to complete. The use of the uniform act is really important to ensure consistency between provinces and territories, so we were glad for it, but it did have to be modified for the B.C. context. It helps ensure that foreign jurisdictions are seeing similar legislation.

So lots of reasons for why we’re here in 2022 with a convention drafted in 2007. The process of adopting these international documents is obviously lengthy, but hopefully, it will be very beneficial for B.C. families.

[2:50 p.m.]

M. de Jong: My reading of the convention suggests that the drafters contemplated the fact that in many countries where there’s a federal state, there will be a division of powers between a central government and state or provincial governments. I presume that contributes to the length of time it takes to do this work.

I’m not, quite frankly…. When I heard and read that Albania was one of the first signatories…. I am of an age where I still think of Albania as that country that we never used to hear anything about, yet here they were, apparently on the leading edge.

Norway and, apparently, the Ukraine, ironically, in the same year — are those unitary states, where the need to address provincial or state-level jurisdictions isn’t as much of a burden for them? I’m guessing that in Canada, that’s where some of the delay is going to come.

Hon. D. Eby: The member has stumped us. Darryl and I were looking at each other. That’s a great question.

I don’t know if Norway and Albania are unitary states, but I do know that Canada is a state with provinces and territories that will complicate the federal government’s job. Given that we have jurisdiction that’s shared with the feds in relation to family law, it will complicate the efforts of the federal government to get this ratified in Canada. We’re just doing our part here in B.C. to make it possible.

M. de Jong: All right. Ratified by an act of parliament in 2019. B.C. is not technically a signatory to the convention. Canada, as a federal authority, is the signatory. Our work flows from our constitutional makeup within the country. Is that correct?

Hon. D. Eby: Yes, it is.

M. de Jong: I’m trying to think of the order to…. I’m going to try and characterize…. Well, let me say what I’m not going to do. I wasn’t proposing today to go through, article by article, the Hague convention.

The reason I think it’s all right to do that is because it is largely procedural — an international agreement, in my reading, around procedures that the signatories will follow. We dealt with another UN document, declaration a few years back, which I think — and I’m not meaning to be argumentative — just seemed to me to be more substantive or have the greater potential to impact substantive law.

This convention doesn’t purport to tell British Columbia or another Canadian province what their laws around child maintenance should be, in my view. What it purports to do is create a framework around which of those orders can be enforced. Again, we may come upon a slight exception to that here and there, but is that a reasonably fair characterization of this convention?

Hon. D. Eby: Yes, it is.

M. de Jong: The various articles…. I see, if I direct the Attorney and his capable adviser, article 60 of the convention talks about the convention coming into force and entry into force. Is the Attorney able to give…?

Let’s assume, for the sake of this conversation, that this legislation is going to pass in British Columbia. What can the Attorney, with the assistance of his official, tell us about what else needs to happen now in Canada? What other provinces…? I’m assuming the territories can be covered by the federal government, but maybe not.

[2:55 p.m.]

What else needs to happen in Canada? Then what needs to happen for the convention to be in force and for people to be able to rely on the convention here in B.C.? I guess the question I’ll ultimately have is: has he been provided with any advice estimating when that might happen, recognizing that most of that is beyond his control?

Hon. D. Eby: This is a difficult question in the sense, as the member has said, that responsibility lies with the federal government to both ratify and to file with the Hague our ratification.

B.C. is the first province to bring in legislation to adopt our adherence to the convention. This bill is a necessary step for Canada to do the same internationally, so it will be up to the federal government whether they want to wait for more provinces and territories to sign on, or whether they want to go ahead.

There are some other pieces in place. For example, there’s a mandatory three-month delay, which is built into the convention itself, to allow existing contracting states to become aware of ratification by a new convention in a state. So after Canada ratifies and files, there will be a three-month notice period.

In B.C.’s case, the convention will only become law after the federal government files those ratification documents. For those who are very keen, that’s under article 58. It’s filed with the international Permanent Bureau at the Hague, which certifies that B.C. is ready for the convention to apply. That filing by the federal government triggers that three-month waiting period under article 60.

The intention here is to have our bill timed to be brought into force at the expiry of the waiting period. It’s expected that the federal government will do the same by bringing into force the convention-ratifying sections of the federal Divorce Act. So it’s a very coordinated and choreographed process.

Before filing, the federal government must complete a formal review of B.C.’s legislation to make sure it agrees the changes will implement the convention. The feds may also wish to consider the readiness of other provinces and territories, as I said.

Although Canada can file documents individually for each individual province and territory at different times, they may choose to wait until one or two are ready. We will be asking them, though, to ratify immediately, because we know the situation faced by some families is quite desperate.

B.C. officials believe that other provinces are developing their own implementing legislation, and we do believe that some of the provinces will be bringing forward legislation soon. In B.C., we also need to prepare and approve regulations required by the amendments in Bill 8 so that they can be brought into force at the same time as the provisions in Bill 8. We think that much of that can be done while waiting for the feds to file the certifying documents.

M. de Jong: Is the three-month period the Attorney referred to that which is referred to in article 60?

Hon. D. Eby: Yes, it is.

M. de Jong: Not uncommon in these kinds of situations where the level of coordination described by the Attorney is required cross-jurisdictionally in Canada for the federal government to set a target and ask — or seek agreement, at least — amongst the provinces for the work to be complete at the provincial legislative level.

Has the federal government provided any indication whatsoever to British Columbia or other provinces as to their preference when the work is done and when they’d be in a position to file those ratification documents, and if they haven’t, is the Attorney troubled, disappointed, impatient about that?

Hon. D. Eby: We certainly are confident that the federal government wants to do this, that they want to get this into place. I’m certainly heartened by that. I recognize the challenge federally of committing to certain time periods and wanting to have as many provinces and territories as possible onside. I’m not critical of the fact that we haven’t received any indication from the federal government about deadline or a best before date or an effort that they have to have provinces and territories hit a certain target, in terms of the timeline.

[3:00 p.m.]

What I can say for British Columbia is that once we get this into place, we will be reaching out to the federal government to, of course, let them know and to ask them, for British Columbia, to ratify as quickly as possible because of the situation faced by many families in our province. I hope that other provincial legislatures also take this opportunity to support families in the same way.

M. de Jong: I’m not going to try and provoke the Attorney General to make statements that might be viewed as putting overt pressure on the federal government. He knows…. He has explained to the committee and shared his understanding of the process and the option available to the federal government to proceed with the filing of ratification documents following a province — or two or three, or to do it incrementally.

I’ll invite him to take advantage of the opportunity that the committee affords to offer an opinion on when he thinks the work in British Columbia would be done and complete and would afford the federal government the opportunity to at least proceed with the filing of ratification documents as it relates to this province.

Hon. D. Eby: I can advise the member that we feel that British Columbia can be ready when the federal government is ready and is filing the certifying documents at the Hague. We think that we can hit those dates, regardless of when that is. If it’s immediately following the passage of this bill or at some point in the future, we will not be the source of delay in implementation.

I would certainly encourage the federal government, on the record here, as I will in person with my federal counterparts, to ratify as quickly as possible, given the challenges faced by B.C. families where there is someone who owes money and lives in another jurisdiction, and also families internationally where there’s somebody in British Columbia that owes them money under a support agreement, to make sure that families are looked after and that those court orders are respected.

M. de Jong: One last question on that front. Is the Attorney aware of any work that would be required at the provincial level, on the part of British Columbia, that would delay or preclude the filing of ratification documents to breathe life into the Hague convention within this part of Canada — any reason that it couldn’t be done prior to the end of the calendar year, recognizing it’s not the Attorney’s call?

He can’t direct the federal government to do that, but the work here in British Columbia will have been completed and would afford the federal government an opportunity to do that if they so wished.

Hon. D. Eby: The member is right. This will depend on federal government timing, but there are two significant pieces of provincial work. One is the regulations, as I mentioned, that are required by Bill 8, needed to bring this into force.

[3:05 p.m.]

The other is something called the interjurisdictional support service, which is a service that exists in the Ministry of Attorney General through the maintenance enforcement and locate services branch of justice services branch. They are responsible for maintaining a system, under the current act, for interjurisdictional support orders. They will need to update their system. They’re the central authority that’s repeatedly talked about in the Hague convention and in these amendments.

They will be our central authority. Because they are our central authority, they will be the ones receiving international documents and transmitting documents internationally. They have to upgrade their systems to do that. I am advised…. It’s the best understanding of staff that that would not delay us. If there were an implementation date and we were targeting the end of the year, we would be able to do that.

Now, any time someone mentions systems and computers, I always get a little bit nervous about firm dates. But I will give the member a point-in-time update that at this point in time, our understanding is that those changes could be in that system by the end of the year, and they would be able to do this work.

With the three-month waiting period in the federal government ratification process, that work is happening right now in British Columbia to prepare for it, so we think we should be well in hand for when the feds are ready.

M. de Jong: The preparation and drafting of the regulations the Attorney referred to — are those contemplated in this legislation under clause 10? Is that correct?

Hon. D. Eby: Yes.

M. de Jong: Then the reference to the interjurisdictional support services branch, which is a branch within the justice ministry…. I’m going to ask this question to try and invite the Attorney to give us a bit of a sense of when this is eventually all up and running, how this is going to work practically. We may come back to that in a few moments.

Right now we have an understanding amongst the Canadian jurisdictions for the mutual registration and enforcement of orders. We have a national organization for that which, as I understand it, represents the central authority that the Attorney referred to a moment ago and is contemplated under the convention.

I guess what I’m trying to ascertain is if I am a mother in a country of the EU — I only picked that example because there are lots of countries in the EU that are signatories — and I have located a debtor father in British Columbia and I’m going to file the order that I have got in my country, do I file with the central Canadian authority, or do I file with the court — in our case, in British Columbia — or the court in Alberta or the court in Ontario? How does that work practically for the person seeking to enforce the order?

[3:10 p.m.]

Hon. D. Eby: This system is predicated on…. You’ve already got an order in hand that you’re trying to enforce in your local jurisdiction. So this mom who’s in the EU would go, in her home country, to the central authority — whatever that country has designated as the central authority.

They would have a form that she would fill out, including the details of the order. She would file that with her local authority that would transmit it to B.C.’s central authority.

Now, an important point in Canada is that each province and territory has their own central authority. British Columbia will use the same central authority that we’ve been using for the Interjurisdictional Support Orders Act, which is our provincial Interjurisdictional Support Services. They will receive that transmission from this European Union country and receive the order here in British Columbia.

In the reverse situation, where the mother is in British Columbia, it would go to the Interjurisdictional Support Services, as our central authority. They would advise her to fill out this form, and that would be what was transmitted to the central authority in the other country where the debtor was located.

M. de Jong: Okay, that’s actually very helpful. If I misunderstood…. So the good news is that on the surface, at least, it looks like that person in the European jurisdiction isn’t obliged to travel, retain counsel. That seems to be the intention, and vice versa. The person, the custodial parent in British Columbia, doesn’t incur the expense of having to retain counsel or find a way to register documents at a court in Europe.

One thing I was unclear on. To carry on with my example, once the custodial parent in the country in Europe submits the documents to the central authority there, do the documents go directly from there to the B.C. branch of the Canadian central authority, or do they go via the central authority, which then transmits them? If there is that role for the central authority, do they have a reviewing function to ensure that the documents are in order, and who fulfils that reviewing function?

Hon. D. Eby: I thank the member for his second reading speech laying out some of these areas of interest because it allows staff to prepare full answers for me to read into the record.

Thank you, Darryl and your team, for providing us a helpful, step-by-step process.

What I’m going to do is I’m going to take the member through two scenarios. One is where there’s a court order, a family order, a support order that’s made in some third country that’s trying to be enforced in B.C. Also, what would happen in a B.C. order that’s trying to be enforced somewhere else?

I’ll start with an order made somewhere else that’s attempted to be enforced in B.C. through this new process. The folks at B.C. central authority will receive an application from that third country asking B.C. to recognize and enforce a support order that was made in that state. Once they get that application, they’re going to check the appli­cation for completeness, and they’re going to do an information search, if appropriate, to confirm the location in B.C. of the party that’s named in the application.

Now, the authority for that is in part 11 of the Family Law Act, which allows the central authority to make a request to a search officer to find that individual. The central authority also converts the amount of the support in the foreign order into Canadian dollars and sends that order to a B.C. court to be registered. Once it’s registered in a B.C. court, the court registry will notify the B.C. party that, therefore, an order has been registered.

That’s the debtor, the local person in British Columbia, who suddenly gets a notice that says there’s an order that’s been registered here in B.C. Now, if that person, the debtor, wants to dispute the registration, they have 30 days to apply to the B.C. court to challenge the registration on one or more grounds that are set out in the Interjurisdictional Support Orders Act.

When it’s registered in the court, the foreign order then has the same effect as a support order that’s made by a B.C. court, which means it will be enrolled with the Family Maintenance Agency for collection. The Family Maintenance Agency receives, records and sends any payments collected from the B.C. payer to the central authority in the contracting state where the recipient resides for disbursement to the recipient.

[3:15 p.m.]

And now the reverse situation.

Interjection.

Hon. D. Eby: The member has asked me to pause there and clarify some things. Then we’ll go into the second scenario.

M. de Jong: I’m obliged to the Attorney. The reason I suggested we stop there is because the reverse scenario — there’s a lot more outside of the control of the B.C. authority when the order is going the other way. So I will focus on the first example, which I think is of even greater…. Well, they’re both relevant, but this one involves way more people in B.C.

I just want to make sure I understood, when the Attorney was referring to the central authority, then registering the order with the B.C. court, is that the national central authority? I have been using that term in reference to this national coordinating body, but it seems that the Attorney may have been referring to a central authority within British Columbia.

Hon. D. Eby: I think that there might be a bit of a disconnect there. The central authority in this convention, in this bill and generally is in British Columbia, and it is our central authority.

I am advised by staff there will be a national central authority but limited to Divorce Act applications, and people would still deal with the B.C. central authority for people located in British Columbia. So it’s more helpful to think of it as a B.C. institution that is enabled by this international process. It will be staffed by B.C. government officials and so on, and everything will be dealt with in B.C.

I think that might clarify for the member where we’re disconnecting.

M. de Jong: Yes, it does.

The foreign maintenance order…. Of course, all of this is predicated on the fact that British Columbia, Canada and this other country are signatories and have ratified and are fully part of the Hague convention, so we’ll take that as a given for the purpose of our conversation.

The foreign order comes in. It’s filed or it’s sent to this central authority within British Columbia that I presume will be housed, or is housed now, within the Justice Ministry, and then that’s going to trigger some work on their part, which the Attorney summarized in part.

He talked about the…. I guess there’s a review of the documentation to ensure that it’s in order and complies with the provisions of the convention. Then there is a notification of the debtor. I’m curious, and I suppose, ultimately, custodial parents will be curious. The Attorney knows this from his work prior to being in this place and his experience and, obviously, his work as the Attorney. Debtors sometimes can expend great deals of energy to avoid receiving the documentation and meeting their obligations.

Again, these are more practical questions. What does the Attorney see as the degree to which the central authority is going to take steps to locate this person, this debtor? What are the obligations under the convention for the central authority within B.C. to take action in that regard?

[3:20 p.m.]

Hon. D. Eby: Domestically we have search officers that work with the maintenance enforcement and locate services branch of the justice services branch. They support the Family Maintenance Agency in finding and enforcing judgments for people who are located in British Columbia.

This same service will be offered to international people who register their orders through this process. The central authority’s search to find the person will be the same as is done for domestic debtors and creditors in the family law system. These search officers have authority, under part 11 of the Family Law Act, to do these searches. They’re very good at their work. If the person is in B.C., they’re usually quite good at finding them.

The same process would be followed for enforcing these kinds of debts under the Family Maintenance Agency as are done domestically in relation to support debts.

One of the commitments that Canada made and will make in ratifying the convention and that we make through this legislation in ratifying it is that we will make best efforts to locate people, to serve them and to ensure that enforcement is effected in British Columbia.

M. de Jong: Again, that is exceedingly helpful to get a sense of how this is going to work practically. The order comes in to the B.C. central authority. It reviews the documentation, and then it sounds like it gets passed along to the family maintenance enforcement program for enforcement. If that’s so, if I’ve got that essentially correct, the Attorney can tell me that.

The next question I’m going to ask is based on observations that are admittedly perhaps a bit dated. If the Attorney wants to reassure me that this is not any longer the case…. I will say it this way. Family maintenance enforcement program has a lot of files, and they have to make decisions about prioritizing those files.

I will say an observation that I used to make is that the files that got the most attention were the ones where, as a result of a debtor, a non-custodial parent not fulfilling their maintenance obligations, was triggering a need by the province of British Columbia to step in and provide assistance to the custodial parent.

I’ve said that clumsily, perhaps, but I think the Attorney probably gets my drift — that the incentive on the part of the program was to deal in circumstances where people were collecting assistance when they might not otherwise have to if the non-custodial parent were fulfilling their maintenance obligations.

I mean, this is all speculative now. We’re probably still some…. It sounds like not just months but probably a few years away from this being fully operational in B.C. Is the Attorney satisfied that these orders — by definition, foreign orders — will receive the attention they require within the admittedly difficult circumstances that agencies like family maintenance enforcement find? They are busy, and they have lots of files.

[3:25 p.m.]

Then I guess the question that follows from that. I take it that there’s nothing to preclude someone from a foreign jurisdiction who has filed the order to come over and assist in terms of trying to identify assets or provide information to a family maintenance enforcement agency, who says: “Here’s where I think that you can go to look, and here are the steps that I think you can take to follow through with the enforcement of these orders.” So really two questions there, I guess.

Hon. D. Eby: The member, at the beginning of his question, asked whether I could confirm whether his understanding was right, and it is correct.

For the second part of his question, he asked about prioritization within the family maintenance enforcement agency. I can advise the member that to the best of our knowledge, there is no policy that would prioritize someone who is living on assistance or somebody else that is facing a situation where somebody owes them child support.

Now, this is a human enterprise. I can imagine, as an officer working in the family maintenance agency, that if you’ve got someone who’s in dire financial straits or living on welfare because their partner is not paying child support, you may feel moved to put some extra energy into it, or something. I’m just speculating; I don’t know. But I can advise the member that to the best of my knowledge, there is no such policy.

Perhaps it might be helpful for the member to know that this international system is working today in British Columbia, where we have these bilateral agreements with other countries. This will hopefully fit into that larger piece. When you look at the entire world outside of British Columbia, we have, coming into B.C. from outside British Columbia, the United States, a net inflow of $1.3 million; and internationally, a net inflow of $650,000 and change.

That net maybe conceals, a little bit, that there are flows going back and forth. Inflow to British Columbia from the United States is $2.295 million; outflow from B.C. to the United States is $986,000 and change. Then internationally, inflows to B.C., $791,000; and outflow from B.C., $139,000. That collection period is 2020-21.

It shows that there’s money going back and forth. The system is working. The numbers, understandably, flowing into British Columbia from the rest of the world are bigger, because there are more places. The money flowing out from B.C. is about 2 to 1, U.S.A. inflow to B.C. compared to outflow, and about a 4 to 1 international inflows to outflows ratio. This system is working, and it is collecting.

Now, the member asked a third part to his question, and I confess that he hit our capacity at two, so the member will have to repeat that question.

M. de Jong: Sorry. I didn’t hear the last part that the Attorney said.

Hon. D. Eby: Is the member pulling my leg? I said that I didn’t hear the last part of the member’s question, so we’re going around and around here. I’m hopeful that he would repeat the third part of his question, because I missed it.

M. de Jong: I’m going to have to think about the third question I asked.

While I do that, I think the Attorney meant to convey that we can learn a lot about how this broader, global system is going to work by looking at the system that is in place bilaterally with a few countries.

[3:30 p.m.]

He’s nodding and indicating that’s the case.

Those bilateral agreements — do they roughly equate with…? I think what I’m trying to get at here is this idea that it sure sounds good. When we get to the other example about the British Columbia parent filing elsewhere — that someone need not come to the jurisdiction where the debtor is and incur all of expense of getting there and figuring out who to talk to and can just file these documents and rely upon an enforcement mechanism within the jurisdiction to do the rest, as it were.

Is that a fair description of the bilateral mechanism that’s in place, and is that a pretty good indication how one hopes this broader global system is going to work?

Hon. D. Eby: The agency that will do the work within the Ministry of Attorney General is the same. The central authority is the same for the bilateral as it will be for this Hague convention piece. The process is very similar. There is a central authority in British Columbia. There is one in the third country where somebody goes to. They file, and they transmit the documents, so that process is very similar.

What this does is that this opens a much larger…. I don’t want to overstate it. It opens a larger number of countries to British Columbians for this kind of enforcement work to take place. If I’m taking the member’s point, it will depend on the infrastructure in other countries for British Columbians to enforce those orders in those countries that they obtain in British Columbia in, say, Albania. There is a degree of trust that’s required that all countries participating will do best effort.

Certainly for B.C., we can say that that person from Albania that’s transmitting that order over to British Columbia will get the same service that a British Columbian would get in relation to a domestic claim of family support that’s owing. For British Columbians, I guess, that’s really the best we can ask — that you get the same treatment as an Albanian would get that had a domestic claim in that country.

The effort here is to expand the world of countries that we’re working with, not to dramatically reform the interjurisdictional support order process. It would be very similar.

M. de Jong: That is helpful clarification.

I presume, but I might as well ask. As the network of nations involved grows and the numbers of orders coming into the jurisdiction for enforcement grow, the terms of the convention say that the jurisdiction in Canada — in this case, British Columbia — will absorb the cost associated with enforcing those orders, as they do domestic orders. There is no provision contemplation within the convention and, I suppose I should ask the Attorney, no intention on the part of the province of British Columbia to collect an additional fee for that work.

Maybe I should ask: is that even precluded under the terms of the convention?

Hon. D. Eby: We’ll have to check on that issue of whether the convention itself precludes such activity, but it is not our intention to charge any fee like that to a cost recovery mechanism.

M. de Jong: Thanks. Probably a good segue, then, into the second example. I think the Attorney has answered a lot of those questions that flow from the second example of the British Columbia parent who is now seeking to enforce an order elsewhere in the world.

I presume the short answer is that everything the Attorney has described about the situation that would exist and the procedure that would be followed in British Columbia is intended to reciprocate in another country. But I cut him off as he was about to enlighten us, so I’ll encourage him to continue.

[3:35 p.m.]

Hon. D. Eby: These are the steps that would be taken to recognize and enforce a decision made in British Columbia in relation to family maintenance that relates to somebody who lives in another one of the contracting states to the convention.

A B.C. recipient, having received an order from the court, just as they would if the debtor was another British Columbian, enrols in the Family Maintenance Agency program to have that support order enforced. They just indicate that the payer lives in another contracting state and that arrears are owed.

The Family Maintenance Agency will open a file. They’ll set up a payment schedule according to the terms of the support order and calculate the arrears amount that’s owing. They will note where the payer lives and confirm, if necessary, that the payer is in the other contracting state.

Now, that can be confirmed through a request for a search by a search officer. We’ve talked about that search officer that’s located here in British Columbia, under the authority of the Family Law Act, or it could be done through the central authority in the contracting state where the payer is believed to be.

The Family Maintenance Agency then prepares an enforcement application using the proper convention forms. These documents will be a statement of arrears, if necessary; a copy of the B.C. support order; and any necessary translations into the official language of the other country. They will send those materials to the central authority in the contracting state where the payer lives.

Once it’s received, the central authority in that country will process the Family Maintenance Agency’s documents in accordance with domestic procedures and rules. That collection of support payments in that country will be carried out under their domestic law.

Any payments that are collected by that country, by the central authority of that country, are forwarded to the Family Maintenance Agency for disbursement to the recipient in British Columbia. The Family Maintenance Agency receives and records payments and will ultimately disburse them to the B.C. recipient.

M. de Jong: Following up on the question, and the Attorney may give me the same answer, which is that he and his officials may need to check.

In that procedure that he’s mentioned, I’d be curious to know whether the foreign country doing the collection work is precluded from subtracting a processing fee for the funds collected for the parent and child located in British Columbia. I understand that we can check that and get confirmation of that.

I’m sure the Attorney…. This is true of either example, but let’s take the example where we have the British Columbian custodial parent, child in B.C., has received an order seeking to enforce it. Does the convention contemplate enforcement in circumstances where the location of the debtor is not known for certain but the location of some of the debtor’s assets are?

Can collection take place where a debtor has made himself or herself scarce but — for example, in the case of real property assets — those assets are obviously identifiable and locatable?

Hon. D. Eby: The specific situation will depend on the domestic law of the other country. The easiest way is to think about it by analogy to British Columbia.

If there was a notice received, transmitted to British Columbia and the debtor had assets in British Columbia, you could have a situation where there were attempts at service and it was unsuccessful. You could get a substitute service order, and you could collect against those assets, even without knowing whether or not the person has received service.

[3:40 p.m.]

We suspect that most countries that are adhering to this convention have similar processes. In most situations, where there is an asset that’s known to the creditor and they’re pursuing it in the third country, that country will have processes for notice and service and will allow for substitute service where required. But it will depend on the domestic law of the other country.

M. de Jong: Right. I mean, I think, ultimately, that is the answer and where, hopefully, some of the frustration that we’ve seen in the past might be overcome.

I wanted to ask a question. I was told by the helpful staff that provided the briefing that there are 43 countries that are signatories to the convention at this point, 26 of them being EU countries. I’m not going to ask for a listing.

I am going to ask this, though. I’m not sure if there is data on this, as it relates to circumstances in which children in British Columbia are supposed to be receiving maintenance. They do not, and the parent with that obligation to provide that maintenance has left the jurisdiction. Do we have any data at all on particular parts of the world, particular countries, where there are above average…? In terms of the inflow and outflow of people into British Columbia….

I think I’m trying to find a way to ask the Attorney: are there countries that are not yet signatories to this agreement that it would be really helpful if they were to become signatories because a lot of the cases that arise out of British Columbia involve those countries? I don’t know if that data exists.

[3:45 p.m.]

Hon. D. Eby: Thanks to the member for the question.

First of all, I don’t understand that there are any statistics of countries where we both don’t have a bilateral agreement with them and they are not contracting states. How many matters do B.C. families have that might fall in the jurisdiction of those countries? I just don’t have that information for the member. But I can advise the member that where there are countries with a significant number of matters, B.C. has worked to establish that they are bilateral reciprocating jurisdictions. There are many.

The nice part about this work is that the bilateral countries that we have agreements with tend to be our top international partners, where there are issues. So the United States, intuitively, is the biggest jurisdiction where there are people living cross-border. Within the United States, Washington state is our biggest reciprocal partner — obviously, very close geographically — with total funds in the 2020-21 collection period of $884,193.

Our top international bilateral partners are the United Kingdom, Australia and Germany, in that order. It drops off very quickly. Germany is our third top international partner. There is $82,971 of total funds for Germany.

Those countries that have ratified the convention, where we will see an immediate impact for B.C. families and the volume of that impact — there are a number of them. The total is 17 countries, with British Columbians who are seeking to enforce judgments, but they have not been able to because we’re not ratified. There are 35 files among those 17 countries, and the total arrears outstanding is $3.6 million and change.

The largest of these countries are France, Netherlands and Brazil — one, two and three — with four files each: France, $125,000 in arrears outstanding; Netherlands, $877,000 outstanding on four matters; Brazil, $47,000 outstanding on four files.

We do have two files in Ireland worth a total of $830,497. We have one file in Turkey that’s worth a total of $286,827. Some of these can be quite significant for families and will be once this is ratified.

M. de Jong: The two most populous countries in the world are ones with which Canada and British Columbia have extensive trade and cultural relationships. I’m thinking of China and India. Are either China or India signatories or poised to become signatories to the Hague convention?

Hon. D. Eby: Neither of those countries have signed the convention.

M. de Jong: Any indication from the work taking place nationally about prospects for either of those jurisdictions joining the convention?

I don’t expect the Attorney and his able adviser to be on top of what negotiations may or may not be taking place this week or last month, even. But it strikes me that it would be…. These are jurisdictions with which we have regular contact. Any intel on whether or not there is a willingness on either of those two countries to sign on to the convention?

Hon. D. Eby: No, we don’t have information on that.

I can advise the member that we do have bilateral agreements with Hong Kong and with Singapore for those families with debtors that live in those jurisdictions, although they are not currently signatories or indicating that they are going to be signatories to the convention.

[3:50 p.m.]

M. de Jong: The Attorney may not know this, or his assistant. India, I think, is a signatory to the Hague convention on adoption. So there has been some willingness in the past. They’re not a signatory to this one yet.

Hon. D. Eby: I’ll take the member’s advice on that. The federal government tends to lead on international adoption convention standards.

M. de Jong: It has been helpful to have that conversation about the practical workings — how one hopes this is going to operate to the benefit of people who generally find themselves in difficult circumstances and children who are entitled…. As the convention makes clear, it’s premised on the belief that children are entitled to be looked after by their parents, and there are obligations that come with parenting.

I have a few questions, not many, that are just directly relevant to section 1. I’ll try to go through them quickly. In section 1, there are some amendments to definitions. The definition under “convention” with respect to international recovery of child support speaks of “…any declarations or reservations made under the convention by the government of Canada in respect of B.C.” I read the reference in the convention.

I suspect there are none at this point — there are no declarations or reservations — but can the Attorney confirm that?

Hon. D. Eby: It’s our understanding that Canada is likely to make declarations under two articles and a reservation under one.

The first declaration we anticipate would be made under article 2 on behalf of British Columbia. That would do three things. It would extend the scope of the convention to include child support obligations for children over the age of 21 in the situation where the child is unable to withdraw from their parents’ care by reason of illness, disability or other case, which is in accordance with our domestic B.C. family law.

The second and third items are with regard to spousal support. It will specify that applications involving spousal support apply equally to support obligations arising out of the breakdown of marriage or an unmarried spousal relationship between same and opposite-sex persons under federal and B.C. law and extend the convention scope to claims for spousal support only.

Also, we anticipate that Canada will make a declaration under subarticle 30(7) to require all applications for the recognition and enforcement of child support agreements to be made through central authorities rather than directly through the courts.

[3:55 p.m.]

Under reservations, it is anticipated that Canada will make a reservation under article 20, on behalf of British Columbia, that will not require the recognition and enforcement in B.C. of decisions made in another contracting state if the decision is based on the fact only: first, the person who is owed support under a decision “was habitually resident in the State when proceedings” were brought against them; or two, the parties agreed to the use of the contracting state for proceedings; or three, the decision was made by an authority exercising jurisdiction because of a “matter of personal status or parental responsibility” related to a party — for example, based on the nationality of a party.

Any declarations and reservations will be added into schedule 2 by the OIC.

M. de Jong: That’s helpful in terms of the few articles that I wanted to ask the Attorney about. But before we get to that further…. Well, those are the declarations and reservations that the Attorney and the government expect and anticipate, and they would be made at the time the ratification documents are submitted. Is that the sequencing?

Hon. D. Eby: These are the ones that we anticipated making at the time of filing. There is the opportunity after filing to make other declarations or reservations. These are the ones that we anticipate would be made on the initial filing.

M. de Jong: Are they made on the initiative of the federal government, or does the Attorney — and more particularly, his staff and the central authority here — prepare those and say: “These are the declarations and the reservations that we request as the central authority British Columbia?”

Hon. D. Eby: We do cooperate on these matters, as the member might anticipate. But it is the federal government that has to request that, as that is their jurisdiction — the international relations and conventions like this.

M. de Jong: Further down in section 1, the definition of support order, sub (a), refers to orders “made by a court or by an administrative body, that requires the payment of support.”

I was trying to think about what the Attorney may have contemplated here in terms of administrative bodies beyond orders of the family court or orders of the Supreme Court of British Columbia. What would the…? I suspect the term was chosen deliberately. Where else would orders perhaps come from that would be captured by the enforcement proceedings here?

Hon. D. Eby: An example of an administrative body is that in Australia, they have an administrative service that calculates child support, that can generate an order. That’s an example. It’s certainly possible that tribunals in other jurisdictions could generate an order — a tribunal other than a court.

It’s important to recognize that this definition of an order needs to incorporate the origin of the international order, not just what happens in British Columbia. We don’t have a tribunal that could generate an order like this, but internationally, there are.

One other piece I want to note is that this isn’t a change to the Interjurisdictional Support Orders Act. That wording was present in the previous version of the act as well, so it’s a continuation of that policy brought into the Hague convention contracting estates.

[4:00 p.m.]

M. de Jong: Might it include, though, an order — I’m trying to think back again, practically — where the family maintenance enforcement agency varies…? They don’t vary the court order, but they might vary a payment schedule. Would that qualify as an order by an administrative body?

Hon. D. Eby: No, the family maintenance agency doesn’t generate orders. They enforce those orders on behalf of the parties, but the orders come from the courts.

M. de Jong: The section right below that refers to article 19. I guess my question…. Within the meaning of the new definition contemplated here, is that a reference to a separation agreement? Is that what that is intended to capture?

[R. Leonard in the chair.]

Hon. D. Eby: This convention uses the word “decision” instead of “order.” So that’s why this amendment…. They mean order, among other things, but that’s not included in our current statute, so we need to put that word that the convention uses into our definition of an order in order to capture it so that it’s consistent between the two.

What the member is thinking of is subsection (c), the maintenance arrangement. That would be the agreement that he was asking about. So (b) is meant to incorporate the language of the convention, and (c) is meant to incorporate agreements that might be entered into between two separating spouses or parents.

M. de Jong: That makes sense to me. When I looked at article 19, I saw the reference to: “The term ‘decision’ also includes a settlement or agreement concluded before or approved by such an authority.” I guess that’s the distinction between a negotiated settlement agreement and a settlement that flows out of a dispute before the courts. Is that the distinction between the two?

Hon. D. Eby: There will be a bit of overlap, I guess, between these pieces, because the effort here is to really capture everything that might be contemplated in these pieces so that they can be enforced. It is the intention here of the drafters, when they say “maintenance arrangement,” to refer to those kinds of agreements that people reach about mutual support in the event of the need to support a child in this way.

A decision…. I think the member’s nuance is probably a good way to think about it: something that would be entered in a court, that would be enforced by a court. But it starts to break down when you get too far down the path, because the intent here was to have a bit of overlap between the two so that nothing fell in between and that there were no gaps. That’s the intention here.

Just to be completely clear, the intention was, around (c), in “maintenance arrangement,” to refer to those types of agreements.

M. de Jong: The idea there is that, in the same way that within British Columbia and Canada, you can negotiate a maintenance agreement, a settlement agreement, and ultimately register it with the court, you could do the same thing here and have that then applied in the foreign jurisdiction and enforced as if it is an order of their court because it is an order of our court?

[4:05 p.m.]

Hon. D. Eby: The member is right. We know what we do here, but we don’t know exactly how things play out in other places, so we’re trying to be as complete as possible in this definition.

M. de Jong: Final point on this. So what we’re trying to achieve and convey is that there is no disincentive to try and negotiate an agreement. We wouldn’t want people to be left with the impression that, oh my goodness, you better follow through on your judicial proceedings because a negotiated agreement somehow won’t receive the same level of enforcement as an order flowing from a judicial proceeding.

Hon. D. Eby: Yes, that’s exactly right. That also feeds into why we anticipate Canada to be making a declaration, under article 30, sub 7, to require applications for recognition and enforcement of child support agreements to be made through central authorities, not just court judgments, so that they’re treated in a similar way.

Clauses 1 and 2 approved.

On clause 3.

M. de Jong: I want to assure the Attorney and the members of the committee that I don’t want to go through, I’m not going to go through, the convention clause by clause, or article by article. There were three or four that captured my attention that I thought it would be worthwhile to have the Attorney address. I thought I would do that as part of section 3, which refers specifically to the Hague convention.

Let me start. I think the Attorney has already answered my question with respect to article 2, which related to, on the surface, that the convention applies to persons under 21 years of age. But the Attorney has pointed out that we anticipate Canada filing a declaration that would extend the provisions beyond that. I’m trying to remember whether that declaration was going to include language about circumstances in which maintenance obligations would continue beyond 21 years of age.

Hon. D. Eby: The member is right. In British Columbia domestic law, child support obligations can continue for a child over the age of 21 where the child is unable to withdraw from their parents’ care by reason of illness, disability or other case. That is why the declaration, under article 2, we anticipate, would extend the scope of the convention to include similar child support obligations so that the convention is consistent with our domestic law here in British Columbia.

M. de Jong: And the declaration is made pursuant to No. 3 of article 2. Is that correct?

Hon. D. Eby: Yes.

[4:10 p.m.]

M. de Jong: Article 3 refers to a debtor, meaning “an individual who owes or who is alleged to owe maintenance.” This might be a bit obscure, but can a debtor be a government agency? We’ve had examples here in the past of suggestions or circumstances where children in the care of government may or may not have received benefits to which they’re entitled. Subsequently, action is commenced, and there is an order obtained for payment of those benefits. Can a debtor be a government?

Hon. D. Eby: There are a couple of hurdles to what the member puts forward as a possible scenario in terms of enforcement under the convention. The first is that the convention is meant to deal with civil law as opposed to public law, so you’d have to overcome that hurdle in terms of the government obligations, which typically tend to be considered public law.

When we look at our own British Columbia example, the obligations of child support flow to a guardian or a parent in their individual capacity. So you couldn’t, in B.C. anyway, have those kinds of obligations flowing to government or a company.

We can’t rule out that maybe there’s some scenario, in a contracting country that ratifies the convention, where they would create such a judgment, but it seems to be quite distant from the intent of the convention. Given the civil law focus of the convention, it’s hard to conceive a scenario that might allow that to arise when we look at our own domestic roles here in British Columbia.

M. de Jong: Well, as I think through the scenarios, I have my own difficulties trying to imagine a circumstance in which it would be necessary to enforce an order in a jurisdiction against that government. If I can think of a compelling one, we’ll come back to it. But for the moment, I cannot.

Let’s go to article 10. I think these are practical. As I was trying to think of examples in which the convention is going to be brought into use, these are the kinds of appli­cations that a creditor…. When I say “creditor,” I’m going to, for the purpose of my question, refer to a custodial parent who is bringing applications on behalf of a child.

When I read this, what this suggests to me is that that creditor parent, acting on behalf of the child, could come into British Columbia and, amongst other things, seek an order compelling a paternity test, under sub 1(c)? Am I reading that correctly?

[4:15 p.m.]

Hon. D. Eby: I’m advised that somebody in a third country could go to their central authority and file an application for child support that required some establishment of paternity. In British Columbia, we have that process under our Family Law Act, where a court could theoretically order…. Now, there are presumptions, and there are restrictions on the ability to order, but there is the ability to order a paternity test, in some circumstances, in relation to resolving whether or not a person owes child support.

It works the same way. A person in a third country would go to their central authority. That application would be transmitted to British Columbia. It would be entered in British Columbia, but it would be decided by the court as to whether or not the paternity test would be allowed. It wouldn’t be as a matter of course that you could just get that or you could just require somebody else to do that.

M. de Jong: Okay. I’ll just take a moment on this, because I’m not sure I understand.

The term the convention uses is where a creditor is “seeking to recover maintenance….” Someone who has received an order in another jurisdiction — as the Attorney has mentioned — takes that order and files it with their central authority, and it gets transferred over here. But somewhere along the line, someone is contemplating a scenario in which it may be necessary for the — in our case — B.C. court to make an order establishing parentage. When would that…?

I’m also a bit confused. If it’s then an order of the court, who’s appearing? Who’s appearing in those proceedings? There’s no one…. The other person is in another country. I’m not sure I understood how that operates.

[4:20 p.m.]

Hon. D. Eby: Those scenarios I ran through with the member about what happens when somebody is trying to enforce a decision made in B.C. or enforce a court order that is made in a third country…. Those scenarios were based on the fact that the order had been made, but there are scenarios where there may not be an order in place. There is just an allegation that somebody in British Columbia, for example, owes child support.

It is possible under article 10 to…. Sub (c) of article 10 talks about establishing a decision “where there is no existing decision.” So it is possible for somebody to go to their central authority in the third country and provide all the materials and the necessary forms, which are then transmitted to British Columbia and then filed with the court. Notice is provided to the person who lives in British Columbia that this person is seeking an order against them for child support. That person has the ability to be served in British Columbia, can appear in court — has the ability to appear in court.

Similarly, the person in the third country has the ability to come to British Columbia and appear in court if they want to, but they don’t have to. In fact, the convention says that they don’t have to come. But the court may say: “We need more information.” Then it goes back through the central authorities to get additional information to clarify things. The court in British Columbia theoretically could order a paternity test or a way of confirming the paternity as part of that determination of whether maintenance is owed.

We went through, and it’s much…. They’re good examples, because they’re much more straightforward; the order is already created, either in British Columbia or in the reciprocating jurisdiction. But it is possible for somebody to forward that information through their central authority to British Columbia’s central authority, have it filed in court and have a judge in British Columbia make a determination around child support, even where no order already exists.

M. de Jong: Is that a provision…? I mean, the Attorney didn’t draft the convention, so I think we’re just trying to explore what was intended in this document that we are now signing on to. Is this a scenario in which…?

Well, in this case, it would be a mother in a foreign country who has not been able to establish parentage on the part of the father in that jurisdiction — the alleged father is thought to be in British Columbia — and now needs a mechanism by which they can secure an order compelling that person in British Columbia, that man in British Columbia, to submit to a DNA test or a parentage test.

Is that the likely scenario by which this would be applied?

[4:25 p.m.]

Hon. D. Eby: It’s not the convention that creates the ability for the B.C. courts to order that parentage test. That’s under the Family Law Act in British Columbia. The convention conveys those same, essentially, procedures in a process of confirming an obligation of child support to somebody in a third country that they can access through these central authorities, if that makes sense.

It essentially treats that person from a third country like somebody who is in British Columbia for the purposes of the court application. They still have to overcome the burden of proof to the court that this is not an invasion of the person’s privacy, that it is a proper and right thing that this be done in order to establish parentage, that there is some reason to believe that this is the parent of the child — all those things. The court is the safeguard around that.

Essentially, yes, the member is correct. That is the most likely scenario. There is somebody in a third country, a mother in a third country that has signed on to the convention. She believes that the father is in British Columbia and files that application through the central authority in her home country to British Columbia. Then that gets filed in our court here, and the court makes a determination about whether or not a parentage test is required as part of the determination of whether or not child support is owed.

M. de Jong: Right. Final point on this, then. It was informative, what the Attorney said. This is, then, not really some…. In this specific example, it’s not really some kind of an expedited process.

It’s difficult for me, actually, to imagine how that application could be brought without the direct involvement of the mother making the allegation, unless what we’re saying is that we contemplate a process in which all of the documents could be compiled in the foreign country, transmitted through her central authority to B.C.’s central authority, and the application would happen on that basis. But as the Attorney has pointed out, it’s a fairly onerous threshold.

I’m just not sure who is going to make that application on behalf of that woman. It doesn’t sound to me like this is intended to be some kind of an expedited process. She’s probably going to have to come here and make the application.

Hon. D. Eby: I imagine that the member and I both can picture a scenario where it would be much faster and easier if the person hired a lawyer in British Columbia to bring a domestic application to the court and had representation on the ground that was doing those kinds of things. That may be true, but this is meant to not leave people without any available remedy.

This is meant to provide a floor, essentially, to the level of a minimum legal service we’re going to guarantee to other contracting states, which is that you go to your central authority with all of the key documents. They will assist you in translating them and transmitting them over to British Columbia.

[4:30 p.m.]

For our part, we will put them in front of our courts, and if the court wants more information, they’re going to send it back to our central authority. We’ll communicate that to you, and we’ll go back and forth until either it’s dismissed or resolved that the court will make the necessary order. So it provides another avenue.

As the member asked, I don’t think the intention is that this is some sort of expedited process. This is a minimum standard of enforcement of family support, international family support obligations. Part of that, unfortunately, sometimes involves determination of parentage to deter­mine whether or not family maintenance is owed or alleged to be owed, to determine whether support is owed.

I don’t think…. It is, in some cases, I think, probably expedited when you have an order in hand, as opposed to having to travel to British Columbia and file the thing yourself in the registry and make the appearance in court. For situations like this, I think that we can imagine scenarios that are more efficient.

M. de Jong: Okay. All of that is helpful. I guess it tells us that some point in the future, this may be a task that falls to the B.C. central authority. I’ve forgotten the term we use — the reciprocal enforcement agency within the ministry that may have to devote some resources to following through.

In the same article, (1)(e) and (f), I keyed in on those because what they suggest to me is that the way the convention is designed to apply — and the way that we intend to apply it — so that a creditor will have the opportunity to modify a maintenance order. But that same right, subject to an article that comes along a bit later, doesn’t exist for the debtor.

I guess the essence of my question is once the order has been submitted to the central authority in the other country, it comes to B.C. It’s registered with the court for enforcement. It doesn’t seem, under this provision at least, under this article — although there’s a subsequent article we’ll come to — that the debtor has the ability to come before the court and seek modification or change to that order. Have I got that essentially correct?

Hon. D. Eby: In the following subsection (2). The easiest way to think about (1) and (2)…. The categories of application for subsection (1) are for creditors and for subsection (2) of article 10 are categories of application available to debtors.

The member, under subsection (2), will see that debtors have available to them under (2)(b) and (c), modification of a decision made in a requested state and modification of a decision made in a state other than the requested state. So it’s meant, I think, by the drafters of article 10, to be the mirror of the creditor’s categories of application in subsection (1)(e) and (f).

M. de Jong: Thank you, actually. How do those provisions operate…? I am now looking at article 18, where the title is: “Limit on proceedings.” It seems to place a limitation on the ability of the debtor to do certain things where the creditor is resident in the state where the decision was made.

I presume this is designed to avoid a circumstance in which the debtor then starts to bring applications in B.C. while the creditor is in a third country, or another country, trying to enforce their order. Is that the essence of how the sections operate together?

[4:35 p.m.]

Hon. D. Eby: Yes, that’s right. It’s to avoid multiplicity of proceedings in jurisdictions. The effort is to identify one place where these proceedings should be taking place, and then enforcement being effected in both jurisdictions.

M. de Jong: In our discussion today, we’ve talked about the hope that for custodial parents bringing applications on behalf of their children, the convention operates to simplify the process and provide them with avenues to enforce beyond the borders of the place that they live, in a world that is increasingly mobile. People are increasingly mobile.

We’ve identified a couple of examples where it may be that seeking legal assistance beyond that offered by these procedures might be advantageous. Articles 14 through 16 talk about the provision of legal assistance to people. The Attorney has been Attorney long enough to know the pressures that exist around the provision of legal aid services. I’m going to ask him to characterize for the committee what this means.

My read of it suggests that there is an obligation, but it is an obligation that equates with what is provided domestically within the jurisdiction, but there is also a provision for a means test. I’m going to ask the Attorney to summarize. We are, in a sense, signing on to this document. I think it’s appropriate to ask the Attorney what we’re signing on to, in terms of the provision of legal aid services to a foreigner in the circumstance that we’re contemplating here.

Hon. D. Eby: If the individuals were here, they would be able to access legal aid through Legal Aid B.C. or through legal clinics in the province. The hope and, certainly, the expectation in the convention, is that people in other countries have access to that legal assistance that they require in those countries in order to be able to navigate these processes.

It’s more of a reciprocal guarantee of minimum effective access — the commitment that we make as signing on to this convention. Our expectation is that contracting states on the other side of the transaction will provide similar levels of support in their countries.

M. de Jong: Okay. I agree in part, but I may not agree entirely. I read the provisions also to suggest that in circumstances where, and we use the example of the application for paternity tests…. I read the provisions to not just include a circumstance….

[4:40 p.m.]

Well, let’s take a slightly different example. I think the Attorney is saying that what a signatory jurisdiction is agreeing to is, for the parent here in British Columbia that is trying to pursue a non-custodial parent in another country, that British Columbia would provide legal aid assistance to them to assist in the preparation of documents and the filing of documents. Okay. So that’s one component of it.

I also took it to mean that in circumstances where a custodial parent from another country was obliged to come to this jurisdiction to pursue a matter — an application of one of the sorts of applications contemplated in the convention — there was also an obligation to provide legal aid assistance to that person, who might not otherwise qualify, because they wouldn’t be a Canadian, they wouldn’t be a British Columbian, and they wouldn’t be a resident here. I’m not arguing for or against that. I’m just trying to establish that it is so.

I suppose, ultimately, there seems to be a mechanism by which we could seek a declaration that that be subject to a means test, which is I think what article 16 says: that you are assuming an obligation, but you can limit that obligation pursuant to a means test. So if that’s correct, maybe the Attorney can indicate that that is so — if he has any concerns about that.

Then, I guess, thirdly…. I shouldn’t ask third questions, because I keep forgetting what they are. But I think the third question would be: does he contemplate seeking a declaration to invoke a means test?

Hon. D. Eby: The vision here is that our central authority will provide much of the legal assistance that individuals will need to get their applications heard by the court and that there won’t be freestanding legal aid required, because it will all be administered through the central authority. With that said, people outside the country will still have access to the legal assistance we make freely available, like legal information and other types of assistances to British Columbians that are just produced by the government.

I don’t think that’s what the member is really asking about. He’s asking, essentially: will we have Legal Aid B.C. funding lawyers for international applicants, in a situation where not every British Columbian gets access? The answer is no. That’s not what we’re expecting. We’re expecting that assistance to be provided through the central authority and for British Columbians to enjoy the benefit of accessing resources through central authorities in other countries, which is why we’re entering into this convention.

We will monitor it. I can see how you could easily read these provisions to require assistance above and beyond that. It’s not our understanding of it, but if necessary, we would consider a declaration under article 16. We are not currently, though, considering such a thing.

M. de Jong: Okay. I think that is a useful declaration if you were of the understanding and intentions around the provisions.

[4:45 p.m.]

Article 22. I keyed on this one because we’ve talked about the procedure. As we draw towards the end of this voyage of discovery, I think we have — at least I do — a far better practical understanding of how these documents are going to flow.

This one, I thought, was interesting because it contemplates a scenario in which either the court or the central authority, and maybe the Attorney can point out which…. When I say central authority, the B.C. central authority or the B.C. court says: “Actually, that’s great. We’ve got all these documents. No, we’re not going to recognize it, and we’re not going to enforce it.” The article contemplates some circumstances in which they would be justified in coming to that conclusion.

I’ll just put it on the record, and then the Attorney can respond. Sub (a) struck me as one that, maybe on the face of the documents, either the central authority or the court would say, “Well, no. There’s too much missing stuff” or “It doesn’t make sense” or “It’s inconsistent, and we’re not going to recognize and enforce.”

Some of the other ones that flow afterwards, it struck me, would require someone to plead these things — that someone, the debtor, would have to plead fraud, or the debtor would have to plead that the order being introduced was obtained improperly.

I’m curious to know a little bit more about the circumstances in which, within British Columbia, the central authority and/or the court would say: “That’s fine. We have a convention, but we’re not going to recognize and enforce this order under those provisions for the following reasons.”

Hon. D. Eby: The member’s intuition is correct. These are indeed grounds that we would expect to see somebody showing up in court and arguing, either through pleadings or by appearance. The mechanism for that is when somebody transmits their order over to the central authority, the central authority then registers it with the court, files it with the court, so that it can be recognized in British Columbia.

The member will recall — we were talking earlier — that there’s a notice that goes out to the debtor, and that debtor has 30 days to appear, to file an appearance, and to make these types of arguments. “This was obtained by fraud.” “This is incomplete.” “This is not correct,” for one reason or another — any of these grounds in article 22.

If they don’t appear…. Like many court proceedings, if you don’t appear, you run the risk of a default judgment. That could happen here, but you do have that 30-day period to appear and make your arguments.

M. de Jong: Thank you, that’s helpful. It sounds like, from that answer, that if I am that resident of British Columbia, that debtor, and I have received notice, as the Attorney has described, I have available to me all of the provisions — (a), (b), (c) or (d) — that I could argue. And (e) seems to be the one that I rather suspect we would hear more about. It is the one that says: “Well, I had no idea this was going on, and the jurisdiction from which this order derives is obliged to have informed me. They didn’t, and therefore, it should not be accepted, and it should not be enforced.”

[4:50 p.m.]

Maybe that’s a scenario that happens now in the bilaterals more than I would know. Is that a fanciful scenario, or is that one that we’re likely to see from time to time?

Hon. D. Eby: I’m advised that this is not a fanciful idea — that, in fact, this does happen on a regular or semi-regular basis within our existing bilateral agreements.

To the point that the expectation of staff would be that when they are receiving the transmission from the jurisdiction in question that there would be notice materials included: “This is how we notified the person of the hearing. This is how they were able to participate, but they didn’t.”

If the court, in those materials — that they’re filed, that the person shows up in the 30-day period to challenge the notice…. If the court says, “Okay, there’s not enough information here for me to determine whether or not notice was properly given,” there can be a request from the court for more information from the central authority, and then it would go back through. That information would be provided through.

If it couldn’t be, then there is a potential for that to be dismissed without recognizing the judgment in British Columbia. So the court provides that oversight role.

M. de Jong: Again, helpful.

Is the convention designed to operate in this way, however? The documents come to the B.C. central authority, and there is…. Let us, for the sake of this example, accept that there is something close to what we would call an affidavit of service that says that the originating documents that gave rise to this order in Belgium were served upon this individual on such and such a date and the affidavit to that effect.

My overall reading of the convention is that the court here is entitled to rely upon that as being factual — that that is determinative of the issue. I’m not sure if there’s a mechanism for the debtor, in that case, to make an argument, “No, that’s just not correct,” or whether the authority here and the court here is obliged to accept that under the terms of the convention as evidence that this person was notified and notified properly?

Hon. D. Eby: There’s certainly an expectation among the central authorities that the documents being received and transmitted are, to the best of the knowledge of the central authority, accurate documents — not fraudulent documents or incorrect documents. So there is a certain level of reliance on that. It’s certainly possible that a court receiving the documents transmitted through the central authorities would be inclined to give the benefit of the doubt to those documents in the absence of information otherwise.

It’s equally plausible that a court would look at an affidavit of service from somewhere else and say: “Well, it doesn’t tell me at all about this key piece of information, so I need more information.” Or: “For this reason, I’m concerned about the accuracy of this document. The dates seem inconsistent.” Then that request for more information or clarification goes through the central authority in B.C., back out to the third country and then back through.

It’s always available to the court to ask for more infor­mation or for clarification or to dismiss the matter.

[4:55 p.m.]

M. de Jong: Flowing from that, the debtor, in our example, isn’t precluded from making that assertion or that application or that request. The answer to that request would not be: “I’m sorry. Under the convention, we do not have the authority to entertain that application.”

Hon. D. Eby: The member is correct. It doesn’t bind the court. The court has their discretion. They will review the application, and the judge will make that decision. They’ve maintained their domestic jurisdiction, and we expect them to exercise it according with the evidence that’s in front of them.

M. de Jong: I wasn’t proposing to go through any of the other individual articles. I’ve got a couple of questions on 2.05. Just to put on the record, can the Attorney, with the help of his official there, simply confirm the difference between the contracting state…? What is a “contracting state” versus a “reciprocating jurisdiction”?

Hon. D. Eby: As the member likely guessed, I’m advised that a contracting state is a state that has adhered to the Hague convention that we’re discussing. A reciprocating jurisdiction is one that is caught under our existing arrangements or has agreed to our existing bilateral agreements under the international support orders act.

M. de Jong: So 2.07 refers to a “direct request to a competent authority” in British Columbia. Sub (1) of the legislation contemplates people making a direct request under article 37. Can the Attorney just describe a type of scenario where that would apply?

Hon. D. Eby: This section is necessary because article 37 of the convention preserves the right of an individual in a contracting state to pursue a remedy that might not be available under the convention.

An example is a situation where an individual is seeking a spousal support claim in British Columbia, but perhaps the contracting state where they live has not made the necessary declaration under the convention to allow for special support applications to be brought in their country. The lack of reciprocity means that the application can’t be brought by the individual under the convention, but simply because the convention exists shouldn’t block the individual from being able to go directly to British Columbia to get that order.

It’s meant to…. Where the convention is silent or where the state hasn’t adopted that provision of the convention, it still preserves the right to go directly to British Columbia for that application. It maintains the rights that they would have had, in the absence the convention.

M. de Jong: Is it also authority for the proposition that a party located outside of Canada and British Columbia doesn’t have to avail themselves of the convention? Can they initiate separate proceedings in British Columbia, or are they now obliged, if their order is from a reciprocating and contracting state, to use that mechanism?

[5:00 p.m.]

Hon. D. Eby: That’s correct. If it is a reciprocating jurisdiction and that particular application is a reciprocated application, then yes, they are obliged to use the convention. But if it’s not, then they’re able to go direct to access that remedy.

M. de Jong: Okay. I just want to make sure that I understand this. So I am the custodial parent with a child, and I have recently moved, taken my child to another country, where I might not be that familiar with the legal framework in my new residence where I’ve got my child, or where my children and I are residing. I’ve left British Columbia. The non-custodial parent is here, but I’ve gone to a country that is a signatory and is a reciprocating party.

If I have the means, which is saying something, I might simply prefer to initiate my…. I might wish to initiate my claim for maintenance and support for my children in British Columbia. I don’t think there’s anything in the convention that precludes me from doing that. If I wish to enforce an order that I’ve got in my new country, I think the Attorney is saying that I must do so via the enforcement mechanisms of the convention. But do I have the option of initiating my claim for maintenance through the regular processes in B.C.?

Hon. D. Eby: We were just discussing it, and it seems like you could potentially go direct, and maybe the court wouldn’t catch it. But the idea is actually that the central authority provides a great deal of benefit to this person who lives in the third country that wants to start their claim, because they provide a central translating and clearinghouse of documents for that individual from their home country in terms of….

They have to demonstrate what the need is, what their expenses are in the home country and so on. All of that documentation can go through the central authority in the third country over to British Columbia.

That person can still appear, by counsel or individually, in British Columbia on the hearing. They would still go to court just like they normally would. The central authority simply facilitates the transmission of documents back and forth for that hearing. They have the right to appear, as does the potential debtor or the actual debtor in the hearing. So it actually is a value-add, which would encourage, I think, most people to use it. We think that it’s possible that you might be able to avoid it, but the hassle might not be worth the loss of the benefits.

Clauses 3 and 4 approved.

On clause 5.

M. de Jong: Is there any significance to the difference between court and court registry now, or is that just something we’re updating in the statutes? The amendment is simply to replace the word “court” with the words “court registry.” Is there some significant juridical reason for differentiating between the registry and the court, or is it just a turn of phrase that has been modernized?

Hon. D. Eby: This is a housekeeping amendment meant to more accurately reflect practice, rather than to appear to impose an obligation on the judiciary to, for example, provide notice to somebody — something that’s beyond the jurisdictional direct control of the judiciary. This work is done by the registry, and so the clarification in the statute is that the registry does the work.

Clauses 5 to 15 inclusive approved.

Title approved.

[5:05 p.m.]

Hon. D. Eby: I move the committee rise and report the bill complete without amendment.

Motion approved.

The committee rose at 5:06 p.m.

The House resumed; Mr. Speaker in the chair.

Report and
Third Reading of Bills

BILL 8 — ATTORNEY GENERAL STATUTES
(HAGUE CONVENTION ON CHILD AND
FAMILY SUPPORT) AMENDMENT ACT, 2022

Bill 8, Attorney General Statutes (Hague Convention on Child and Family Support) Amendment Act, 2022, reported complete without amendment, read a third time and passed.

Hon. D. Eby: I call committee stage of Bill 9, Attorney General Statutes Amendment Act, 2022.

Committee of the Whole House

BILL 9 — ATTORNEY GENERAL STATUTES
AMENDMENT ACT, 2022

The House in Committee of the Whole (Section B) on Bill 9; R. Leonard in the chair.

The committee met at 5:10 p.m.

The Chair: The committee will recess for five minutes.

The committee recessed from 5:10 p.m. to 5:15 p.m.

[R. Leonard in the chair.]

On clause 1.

Hon. D. Eby: Joining me are ministry staff Nina Bindra, legal counsel, and Darin Thompson, legal counsel, from the Ministry of Attorney General and Housing.

Welcome to them both, and thanks for their assistance.

M. de Jong: In terms of how to break down, trying to deal with this bill…. I mean, the easy part is that there are two sections: the Civil Resolution Tribunal Act and then the Legal Profession Act and Notaries Act, which are essentially the same amendment to both acts.

We’ll start, obviously, with the Civil Resolution Tribunal Act amendments.

From the Attorney’s comments in second reading and the briefing that his staff and officials kindly provided, there are, I think, three things that the amendments are trying to achieve: the change around requiring judicial review with the Supreme Court for small claims matters is being dealt with; there is the problem that dates back to the early days of the act around notice of objections — the filing of notice of objections precluding a creditor, if I can still use that term, from enforcing their judgment from the tribunal; and then changes around the tribunal’s jurisdiction as it relates to liability on accidents and the implications that had for accident benefits.

I think, if I’m correct, those are the three areas. The challenge is actually to figure out which section is doing what, because the amendments, as is frequently the case here, are not always plain on the face, and the marginal notes aren’t always particularly helpful — in this case, not particularly so. I say that all by way of, maybe, an excuse for how I’ll — clumsily, perhaps — pose some questions.

We’ll get to it on section 1, which in terms of repealing 13.2…. I’m going to just ask the Attorney to put on the record…. I think I know, but I’ll have him put on the record the problem the repeal of 13.2 is designed to address. It may not address it entirely — there are other sections — but the problem that we’re trying to address with the repeal of 13.2(c).

[5:20 p.m.]

Hon. D. Eby: Technically, section 1 repeals section 13.2(c) of the Civil Resolution Tribunal Act. That section sets out a 28-day time limit for filing a claim in court after filing a notice of objection. But that’s no longer required since this process is being repealed. So that’s the technical function of this repeal.

The big picture is that this and a number of the other repeals related to it aim to, if passed, shift us from the current state, in front of the civil resolution tribunal, how matters proceed after decisions are made at that tribunal, to a new state of process for appeals, essentially, for lack of a better word.

Currently, under the Civil Resolution Tribunal Act, if you have a small claim matter…. Let’s say it’s a $5,000 matter, so it falls within the limit. You’ve gone to the civil resolution tribunal. You’ve been successful in your claim. You’ve had a decision from the tribunal that said: “Yes, this person owes you $5,000.” You have to wait 28 days.

The reason you’re waiting 28 days is to see whether the person who lost at the civil resolution tribunal is going to file a notice of objection with the B.C. Provincial Court. It costs $200 to file a notice of objection with the Provincial Court. It turns out that, yes, the person who lost the case is willing to pay that $200. It nullifies that decision that you just won. You can’t enforce it. You are, essentially, starting back at square one at the Provincial Court.

There’s no requirement for that person who pays the $200 fee at Provincial Court to articulate any complaint about what happened at the CRT. All they have to do is say, “I’ve got an objection,” file it, pay the 200 bucks, and that’s it. Essentially, for $200, the judgment debtor gains all of the benefits of the fact that the judgment functionally no longer really exists. It means the winning party has to start, in Provincial Court, all over again.

Under the proposed future state, this would shift so that the person who was successful in the $5,000 decision is waiting to see if somebody files for judicial review with B.C. Supreme Court. Instead of just paying $200 and having the burden shift back onto the person who won the judgment, you have to actually articulate the case, the reasons why you think errors were made at the civil resolution tribunal. You have to be serious about it. You have to set out the grounds for what you think the tribunal did wrong.

We expect that this will reduce the number of challenges to CRT decisions around small claims decisions, making it more useful for people. Really, only those matters where there’s a serious argument to be made that the CRT made some kind of error are going to go through an appeals or, in this case, a judicial review process. It is not, unlike the current state, a full rehearing of the case. It’s a much narrower review of the CRT decision, looking for errors or unfairness. It aligns the small claims provisions with every other area of jurisdiction the CRT has in terms of how it’s reviewed.

M. de Jong: The Attorney General quickly cottoned on to where I think we’ll have a little bit of the discussion. He’s drawn the linkage between two of those issues — the one with respect to freezing the enforcement of the tribunal’s decision with the filing of a notice of dispute and this question of: what is the proper mechanism for which to review or reconsider the tribunal’s hearing?

When I was reading through the legislation, I got to…. We’re not there yet, but they’re all kind of interrelated. The problem with freezing the decision I think is dealt with in clause 6 of the bill, which repeals…. Well, it could be. So 56.1(3) and 56.1(4), which I think is the mechanism by which the ability to enforce those decisions of the tribunal happens. So it occurred to me: “Well, why don’t we just repeal those provisions?”

[5:25 p.m.]

I think the Attorney General would say: “Yes. But there’s more to it than that. We actually want to change the mechanism by which decisions of the tribunal are considered or reconsidered, as it were.”

In second reading, I alerted the Attorney that I was going to pose a few questions to him about the rationale for taking that decision. He’s begun already to provide some arguments in favour of the change. I think it’s fair and appropriate here at the committee, though, to ask the Attorney: how prevalent was the problem? Were we seeing this on a regular basis, in terms of decisions of the tribunal, where people were filing disputes and then not proceeding with them?

That is one thing. Then the other issue, which the Attorney is saying…. I just don’t think…. If you’re going to dispute a tribunal decision, I think there should be a different mechanism — an admittedly more costly mechanism — and that is judicial review. That’s what we do in every other instance — I understand that — but it is a more costly process.

Is there…? Can the Attorney share with the committee some information, some data about how prevalent this has become and how much of a concern it really has been?

Hon. D. Eby: The member raises the issue of costs under this new process versus the current state — to some policy points that were considered in relation to that. The fee to file a notice of objection in Provincial Court is about the same as the fee to apply for judicial review in B.C. Supreme Court. It’s about $200. The party who is successful at the civil resolution tribunal may incur additional costs having to go through the full trial again at Provincial Court.

Depending on the Provincial Court’s time to trial, it can really add significant additional time to the entire resolution process of the claim. Once you’re done in Provincial Court with your new trial, which you’ve already won at civil resolution tribunal, and you win it again at Provincial Court, the person who you’re suing could still go to appeal at the B.C. Supreme Court, which is the venue for appeals from Provincial Court small claims trials, essentially putting you back in the same position. But you’ve also had to do an entirely new trial.

It’s not quite as straightforward to say that it’s more costly to do it this way. There are considerations that are both pro and con in terms of additional costs and time to trial.

[5:30 p.m.]

The statistics that the member asked about…. We do have those. We have four years of statistics starting June 1, 2017, and going to May 28, 2021. Over that four-year time period, the civil resolution tribunal made 4,910 decisions that were eligible, theoretically, for a notice of objection, and 526 actual notices of objection were filed over the period, meaning that 10.7 percent of CRT decisions were permanently nullified.

That works out to about 130 notices of objection per year. It doesn’t really tell us anything about whether the CRT made an error, or procedural unfairness — something like that.

It doesn’t tell us anything about problems, because all that was filed was the notice of objection. But staff have done manual searches of court services online and found that only 305 of the 526 notices of objection over that four-year period were continued in Provincial Court for the complete rehearing process, so about 60 percent — just over 60 percent — of those matters went through full new trials.

That means that in 221 disputes, or 42 percent of disputes in which the notice of objection was made, the process never resulted in an enforceable order for any party, even though the CRT decision wasn’t shown to be defective in any way. So we can’t know with certainty why the parties chose not to continue in Provincial Court, but it’s reasonable to suspect that some people who were discouraged by being successful in civil resolution tribunal faced an entirely new trial process at the Provincial Court and just chose not to continue, given the cost, time and risk involved.

M. de Jong: The data is helpful. Does he agree…? I see the issues as separate. When he provides the data around the number of cases for which notices of dispute were filed and then not pursued, I think that’s a compelling number. I think that to have the effectiveness of your win neutered by a procedural issue that you can’t control…. There is some merit in what the Attorney General is saying about the need to address that. But does he agree that fixing that doesn’t automatically require a change in the review procedure? We could address that without doing the latter.

He’s nodding. I’ll let him talk, and then I’ll take a stab at sharing my views on why that might have been a preferable approach, but it sounds like he at least agrees with the division between the two issues.

[5:35 p.m.]

Hon. D. Eby: I think one of the key challenges of the notice of objection is that it doesn’t require the judgment debtor from the CRT to really do anything other than file the notice of objection and pay the fee. One of the things that would be intuitive is that you say: “Okay, you’ve filed a notice of objection. Now you have to take steps to actually go ahead and bring your matter forward.”

What the notice of objection does is it puts the burden on the judgment creditor to start a new trial in Provincial Court, and this is where the whole thing really fell apart. People just didn’t understand. “I don’t understand. I just won at the civil resolution tribunal. Now I have to do the entire trial all over again at Provincial Court. That doesn’t make sense to me.”

One of the other issues that came up in policy discussions around this, related to the notice of objection from the CRT, was that during the negotiation phase…. The civil resolution tribunal has a strong front end, trying to reach resolution without going to hearing.

During that negotiation phase, a party with lower bargaining position — they’ve got a tough case; it looks like they’re going to lose — could say something like: “Listen, you know what? Even if you win here, I can file a notice of objection in Provincial Court, and you’re going to have to do the whole thing again. How about we settle for X amount instead of going through that lengthy process? You don’t know how long it’s going to last.”

For the reasons of public understandings of justice — I won the hearing, and it really should be on the other party to demonstrate why that wasn’t properly done — that’s not the case here, and public understandings of justice about the fact that I had the full hearing once already, and I shouldn’t have to repeat the entire thing again.

The fact that it’s consistent with all other areas of civil resolution tribunal jurisdiction appeal processes, which are judicial review in B.C. Supreme Court. So it’s consistent. It’s well understood and well established in B.C., and people are familiar with it at the registries — the courts, the court staff, the lawyers — unlike the notice of objection process, which people are not as familiar with.

There were a bunch of reasons for us to end up in this place. It doesn’t mean I’m not interested to hear the member’s idea about what we could’ve done instead. But those are the policy reasons for why we chose this particular avenue.

M. de Jong: That was darn near an invitation, so I’m going to take the Attorney up on his invitation, because I guess this is what I was thinking too. Short of some of the other considerations that the Attorney General has mentioned, it struck me that what one could have done to address the admittedly frustrating situation where a tribunal decision just hangs out there in never-never land is to create a mechanism imposing a burden on the person filing the dispute notice to actually pursue that through the Provincial Court.

There would have been a mechanism. The Attorney is right. The burden has shifted to the judgment debtor — if that’s the right term in the case of the tribunal — to take some action, but the action now is judicial review in the Supreme Court. Another option would have been to shift the burden to the debtor from the tribunal decision to take the traditional action in the Provincial Court.

Where I’ll engage in the argument with the Attorney is simply to say that these are small, small claims, and the provincial small claims division was established to address that. The tribunal has diverted much of that work away.

[5:40 p.m.]

There were apparently, over the course of the four years, 526 cases that could have found their way into the Provincial Court for a trial. I’m not sure what the numbers around the Provincial Court are. Maybe we’ll talk about that in the estimates later, just in terms of what the caseload in the small claims division has been over the last four years.

The part I guess I’m hung up on, if I acknowledge my own hangup, is the whole…. The tribunal and the small claims court are user-friendly. The forms are there. You fill out the form, you do your thing, you go to the settlement conference, and you get a decision. And the Attorney can say, “Well, look, the filing fees are the same for a judicial review,” but he and I both know it’s a darn sight more intimidating to try and go to the Supreme Court to review a decision that you’re unhappy with.

Most people aren’t — not everyone; some people can do it — pretty well equipped to use the language that the Supreme Court is familiar with and looks to. I guess if the objective is to dissuade people, then it’s a pretty good strategy, because I think it will. I also operate on the basis that none of these tribunals…. For all their good intentions, and for all the good people that work there and administer justice, they make mistakes. There are injustices that occur. This will make it, for the people that are on the wrong end of those injustices….

I don’t mean that in some dramatic sense. These are small claims, but $5,000, for a lot of people, is still $5,000. For people that are on the wrong end of a decision that has been rendered incorrectly, it will dissuade them. I think if that’s the objective, it actually will dissuade them from seeking a review, because it’s just too hard. There will be the odd person that figures out how to draft the documents or has a friend or finds something, but most people will have to suck it up.

I think there was a way to deal with the issue and shift the burden back to the losing party. I’m just not convinced that what follows from that shifting the burden to the losing party, to refer the matter to the Supreme Court of British Columbia, was necessary. Yes, it is the process that follows from other aspects of the tribunal’s work, but it strikes me that we’re losing sight of what the small claims division was created to do in the first place.

You know, back in the…. They used to call it pretty rough justice, but it was accessible justice in the way that the tribunal is intended to be. Fixing the one issue, in my view, did not require and does not require automatically creating the new procedure of referring matters to the Supreme Court for judicial review.

If the Attorney wishes to respond, I’ll invite him to.

[5:45 p.m.]

Hon. D. Eby: A few things in response to the member.

I definitely take his point about the significant difference between the civil resolution tribunal or the B.C. Provincial Court small claims division and the B.C. Supreme Court. They’re very different places. The CRT process is really user-friendly. They do user-satisfaction survey data collection at the CRT, and their February 2022 data showed that 86 percent of respondents said the CRT’s online services were easy to use, and 79 percent indicated that the processes were not difficult to understand.

Now, I think when you have numbers like that…. There are not a lot of self-represented litigants who go through B.C. Supreme Court, who come out the other end and would say: “That was easy to use, and it was very easy to understand.” It’s a court designed for lawyers. It’s designed for people who are represented by counsel. So I accept that key proposition in the member’s suggestion.

The challenge for us was: well, where does that appeal, then, from the CRT take place? What is the jurisdictional authority for the Provincial Court to essentially conduct an appeal, as opposed to a whole new trial? The reason why it was a trial de novo in the original structure was because it was very clear that the Provincial Court had constitutional and jurisdictional authority to do a small claims trial.

What is less apparent is the Provincial Court’s authority to do, essentially, an appeal from a tribunal. So it creates risk and uncertainty. Not only that, but it’s inconsistent with the other areas of authority of the tribunal. You would have four areas that go to judicial review at B.C. Supreme Court and then one that goes to some sort of appeal process at the Provincial Court. The Provincial Court itself, the small claims section, goes to B.C. Supreme Court for judicial review on appeal.

Perhaps from our policy perspective, it was more accurate to see the civil resolution tribunal and the B.C. Provincial Court small claims division as being parallel processes that an individual could choose, with the same judicial review process at the end.

I take the member’s point that he might have done things differently, to give two levels of a very user-friendly court or tribunal to members of the public. We’re balancing that with certainty and a final decision, because I would assume that an appeal from the CRT to Provincial Court could then be appealed, ultimately, to B.C. Supreme Court anyway. You’re into another level of appeal for the CRT and an extension of a process that isn’t existing in the Provincial Court small claims division.

So lots of policy considerations. I thank the member for the interesting discussion about that.

M. de Jong: Normally, in a case like this, I might try to make the point by suggesting some clever or not-so-clever amendment that might convey my point. There is not a snowball’s chance in hell that I can make an amendment to this piece of legislation that would make any sense at all. So I’m going to beg the Attorney’s help a little bit.

I’m looking for a section to record my difference of opinion. My sense is — maybe he can consult — that clause 3 of this bill and the amendment to subclause 16.4(1) is as good a section as any to point to as altering the procedure that presently exists. I don’t want us to be bouncing around. If that is so, then we might very quickly get there, and we’ll agree to disagree.

[5:50 p.m.]

I want to make sure I’m not missing…. It strikes me that when I get to the existing sub 16.4(1), that is the provision by which it determines how a matter can go to the Provincial Court. We’re now changing that, for the reasons that the Attorney has mentioned, which he agrees with and I am less agreeable to.

Hon. D. Eby: A bit of a strange scenario — advising the member on how best to object to the government legislation.

Interjection.

Hon. D. Eby: That’s right. In the interest of transparency and an opportunity for members to have their views properly reflected, staff advise me that clause 6 of the legislation, repealing division 5, is really the guts of the change here.

Division 5 was the division that really set out the process of the notice of objection and procedural details, deposits on claims that might be required in Provincial Court and so on. It’s really the guts of the thing. Historians who look back on why the member voted against section 6, I guess, could turn to the Hansard, because it is not squarely what I think the member is looking for. There is no provision that squarely does that, but maybe that is more what he’s looking for.

Clause 1 approved.

On clause 2.

M. de Jong: This is, I think, an example of tricky drafting and the various issues that are being dealt with. I’m not going to try to presuppose. I’m just going to listen to the Attorney explain to the committee what purpose clause 2 and the creation of 13.5 is intended to accomplish.

Hon. D. Eby: This section relates to the jurisdiction of the civil resolution tribunal — anticipated, should this pass — to determine responsibility for a vehicle accident. Specifically, this section would add a provision that will, in combination with the regulation, create a limitation period, within which a dispute over determination of responsibility for a vehicle accident must be started at the CRT.

There will be a regulation created, pursuant to the newly added subsection 93(2)(b.1) of the Civil Resolution Tribunal Act. That’s the enabling section that will allow the regulation to prescribe this limitation period.

M. de Jong: When we get to clause 9, I’ll have to admit that I spent the better part of half an hour cursing, because my copy of the existing bill didn’t have a 13.5 in it, which of course it didn’t, because it was created earlier in the statute — one of the delightful aspects of drafting amendments of these sorts.

[5:55 p.m.]

Can the Attorney tell the committee…? He presumably had some sense of…. Well, he has chosen not to include the limitation period in the legislation. He has chosen to do it by regulation. He presumably had some sense or has some advice on what an appropriate limitation period would be. Can he share that with the committee?

Hon. D. Eby: The short answer is that it’s likely to be about a 60-day period. There are many reasons for that. It mirrors existing internal processes within ICBC. It’s a very distinct finding by ICBC that you don’t have to wait some period to realize the extent of….

You just get a letter. You get the final decision from ICBC. You’re at fault in the collision. Then you’ve got 60 days, if that is ultimately what ends up happening through the regulatory process, through cabinet, and so on. We’re expecting about 60 days. You’ve got 60 days — let’s use it for the sake of argument — to launch your appeal of that, essentially, at the civil resolution tribunal.

Now, one thing I’d like to do is just take one step back to really specify what types of ICBC decisions we’re talking about here. What are the circumstances when someone might be affected by this and would need to go to the civil resolution tribunal? Under the new enhanced benefit system, fault is still a factor, and there are a bunch of examples where it is.

There are still, for example, under the old system, tort claims that are making their way through. Those tort claims are very fault-based, and it’s very important. Under the new system, in certain limited circumstances, some enhanced accident benefits might be reduced or cancelled, depending on your responsibility for the accident. We can go into those if the member is interested, but that’s not what we’re talking about here.

[6:00 p.m.]

Similarly, the basic vehicle damage coverage under the new system is a fault-based product. You’re not covered if you caused the accident. That’s also not what we’re talking about here.

Those areas — tort, accident benefits, basic vehicle coverage — are all covered. The way to appeal the fault process is all looked after. This is a very distinct category, where someone doesn’t have any apparent damages, whether to the vehicle or injuries, but the fault determination still matters to them.

They’re concerned about their future premiums, for example, or their future employability. Maybe they want to be a commercial driver. Maybe they are a commercial driver, and they want to have a clean abstract. Certain at-fault collisions could result in higher premiums down the road or could impact your ability to be a commercial driver.

In this circumstance, where someone has no apparent damages that are at stake but still that determination of fault is important to them for these reasons, this is the area. This is the group of people that are affected by these amendments and where we’re creating clear jurisdiction for the civil resolution tribunal to determine these matters.

In these circumstances, it is as simple as ICBC sending a final decision to you, as the driver, saying you are at fault or you’re not at fault. That’s what starts the limitation period. Your receipt of that starts the limitation period that will be prescribed by the regulation.

I move the committee rise, report progress and seek leave to sit again.

Motion approved.

The committee rose at 6:01 p.m.

The House resumed; Mr. Speaker in the chair.

Committee of the Whole (Section B), having reported progress, was granted leave to sit again.

Private Members’ Motions

MOTION 6 — SUPPORT FOR LNG INDUSTRY

(continued)

Mr. Speaker: Members, pursuant to Standing Order 25, the division requested during private members’ time this morning must take place 30 minutes prior to the scheduled order of adjournment of the sitting day. It being 6 p.m., we will begin the division process pursuant to the sessional order adopted on February 8, 2022. The division call will be ten minutes.

[6:05 p.m. - 6:10 p.m.]

Members, the question before the House, as moved by the Leader of the Third Party, is that the question on Motion 6, moved by the member for Peace River South, be now put.

As motions that the question be now put under Standing Order 46 are not common, the Chair will take the opportunity to provide clarity that the House is not voting on Motion 6. Rather, the House is voting on whether the question on that motion be put, which, if passed, would result in a vote on Motion 6.

[6:15 p.m.]

If the motion does not pass, the Chair will invite the Government House Leader to move adjournment of the debate on Motion 6, which will take its place on the order paper.

Motion negatived on the following division:

YEAS — 26
Ashton	Banman	Bernier
Bond	Cadieux	Clovechok
Davies	de Jong	Doerkson
Furstenau	Halford	Kyllo
Letnick	Merrifield	Milobar
Morris	Oakes	Olsen
Paton	Ross	Rustad
Shypitka	Stewart	Sturdy
Tegart		Wat
NAYS — 50
Alexis	Anderson	Babchuk
Bailey	Bains	Beare
Begg	Brar	Chant
Chen	Chow	Conroy
Coulter	Cullen	Dean
D’Eith	Dix	Donnelly
Dykeman	Eby	Elmore
Farnworth	Fleming	Glumac
Greene	Heyman	Kahlon
Kang	Leonard	Ma
Malcolmson	Mercier	Osborne
Paddon	Popham	Ralston
Rice	Routledge	Routley
Russell	Sandhu	Sharma
Simons	Sims	A. Singh
R. Singh	Starchuk	Walker
Whiteside		Yao

Hon. M. Farnworth moved adjournment of debate.

Motion approved.

Committee of Supply (Section A), having reported progress, was granted leave to sit again.

Hon. M. Farnworth moved adjournment of the House.

Motion approved.

Mr. Speaker: This House stands adjourned until 10 a.m. tomorrow.

The House adjourned at 6:18 p.m.