Date Issued: December 18, 2019

File: SC-2019-004453

Type: Small Claims

Civil Resolution Tribunal

Indexed as: Rohatynchuk v. Giroux, 2019 BCCRT 1422

Between:

MONICA ROHATYNCHUK

Applicant

And:

RICHARD GIROUX

Respondent

INTRODUCTION

1.      The applicant, Monica Rohatynchuk, left some children’s outdoor play equipment (items) at her former family home (home). The respondent, Richard Giroux, is the legal owner of the home. The respondent is the father of the applicant’s former spouse, REG. The applicant and REG are separated.

2.      The applicant has been unable to collect the items and seeks $3,000 to replace the items and to cover lost wages, travel time, expenses and emotional distress.

3.      The respondent says this is a family law dispute over family property between his son and the applicant.

4.      Both parties are self-represented.

JURISDICTION AND PROCEDURE

5.      These are the formal written reasons of the Civil Resolution Tribunal (tribunal). The tribunal has jurisdiction over small claims brought under section 118 of the Civil Resolution Tribunal Act (CRTA). The tribunal’s mandate is to provide dispute resolution services accessibly, quickly, economically, informally, and flexibly. In resolving disputes, the tribunal must apply principles of law and fairness, and recognize any relationships between parties to a dispute that will likely continue after the dispute resolution process has ended.

6.      The tribunal has discretion to decide the format of the hearing, including by writing, telephone, videoconferencing, email, or a combination of these. I decided to hear this dispute through written submissions because I find that there are no significant issues of credibility or other reasons that might require an oral hearing.

7.      The tribunal may accept as evidence information that it considers relevant, necessary and appropriate, whether or not the information would be admissible in a court of law. The tribunal may also ask questions of the parties and witnesses and inform itself in any other way it considers appropriate.

8.      Under tribunal rule 9.3(2), in resolving this dispute the tribunal may make one or more of the following orders, where permitted under section 118 of the CRTA:

a.    order a party to do or stop doing something;

b.    order a party to pay money;

c.    order any other terms or conditions the tribunal considers appropriate.

ISSUE

9.      The issue in this dispute is whether the respondent must compensate the applicant for the items and related costs.

EVIDENCE AND ANALYSIS

10.   In a civil claim such as this, the applicant must prove her claim on a balance of probabilities. I have considered all the parties’ evidence and submissions, but only refer to what is necessary to explain and give context to my decision.

11.   The applicant and her former spouse, REG, lived together at the home until they separated in 2017 or 2018 and the applicant moved out of the home. The respondent is the legal owner of the home. The applicant says in early 2019 the respondent requested that she not trespass onto the home. As a result, she has been unable to retrieve the items.

12.   The applicant did not provide a complete list of the items, but I infer from her submissions that they included children’s bicycles, a swing set and a trampoline. In submissions, she says $3,000 is her out-of-pocket replacement cost for the items. She provided no receipts or documentation of the items’ cost.

13.   The respondent says the items are family property purchased by REG and the applicant for family purposes. The applicant does not dispute this. The respondent says his son feels the items should remain on the property for the children to enjoy when they visit during his parenting time. The respondent also says he has no control or authority over the items. Given that the respondent does not live in the home and does not own the items, I agree.

14.   The division of family property and family debt is governed by the Family Law Act (FLA). Section 94(1) of the FLA says the BC Supreme Court may make an order under Division 4 of the FLA about dividing family property and family debt. This means that the BC Supreme Court has exclusive jurisdiction to make orders about the division of family property and family debt.

15.   The applicant filed a Notice of Family Claim in BC Supreme Court on March 22, 2019. The applicant says that the items are not a part of those court proceedings. She says the court proceedings involve claims over real property, vehicles, debts and support, and not household items or kid’s play items. However, in her Notice of Family Claim, the applicant claimed an interest in “all jointly acquired property, including personal property.” Moreover, given the FLA’s broad definition of family property as “all real and personal property” owned by at least one spouse when the spouses separate, the items are family property.

16.   I find that the division of the items is a matter between the applicant and her former spouse, REG. It is therefore governed by the FLA, and outside the tribunal’s jurisdiction. If the claims about the items were against REG, I would refuse to resolve the dispute under section 10(1) of the CRTA, for lack of jurisdiction. However, because the applicant’s claims about the items are only against REG’s father, I dismiss them.

17.   The applicant did not explain or provide any evidence in support of her claim for lost wages, travel time, expenses and emotional distress. I find that she has not proven those claims, and I dismiss them.

ORDER

18.   I dismiss the applicant’s claims and this dispute.