A.T.N.H. v. J.L.K.

2023 BCSC 2350 A.T.N.H. v. J.L.K.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: A.T.N.H. v. J.L.K., 2023 BCSC 2350 Date: 20231102 Docket: 138300 Registry: Kelowna Between: A.T.N.H. Claimant And J.L.K. Respondent Before: The Honourable Justice Betton Oral Reasons for Judgment Counsel for the Claimant: E. Cram Counsel for the Respondent: E. Casselman Place and Date of Trial/Hearing: Vernon, B.C. November 2, 2023 Place and Date of Judgment: Vernon, B.C. November 2, 2023 [1] THE COURT: The claimant father seeks an order that the parties' two children be returned to Revelstoke, British Columbia, and for corollary orders regarding parenting time. This application comes in the relatively early stages of this family law case. Proceedings were commenced September 11, 2023. This is the first application, and there have been no orders other than in connection with this application and an order regarding the claimant exercising some parenting time. [2] The parties' spousal relationship began in early 2009, and they separated on January 1, 2023. The claimant moved out of the former matrimonial home on January 4, 2023. [3] The respondent had moved from Fort Saskatchewan, Alberta, to Revelstoke in 2009. [4] The parties purchased the former matrimonial home in Revelstoke in 2009. Valuation evidence is not fully developed, but the parties seem to agree that it is a valuable asset with substantial equity. [5] There are two

children, [K.], date of birth, [redacted]; and [D.], date of birth, [redacted]. [6] Since leaving the former matrimonial home, the claimant has lived in his parents' home, also in Revelstoke. [7] Since March of 2023, the parties had an informal, that is, there was no order or written agreement in place, but an informal agreement for week-on, week-off parenting time. That informal agreement also included that the respondent provided care while the claimant was at work during his parenting time. [8] The claimant is employed primarily with the City of Revelstoke. While in Revelstoke, the respondent ran a home‑based business. [9] After separation, the respondent remained in the former matrimonial home, and she did so until late August 2023, when she went to Fort Saskatchewan with the children. On August 31, 2023, she informed the claimant that she intended to remain in Fort Saskatchewan with the children where she had enrolled them in school. [10] The respondent is residing with her parents in Fort Saskatchewan and has part‑time employment. [11] The respondent had through counsel informed the claimant of her desire to relocate with the children to Fort Saskatchewan. This was communicated by letter of June 27, 2023 that was marked without prejudice. It invited a response to the respondent directly and by July 7th. The claimant consulted with counsel but responded personally by

letter and objected to the proposition. [12] There are indicators that the respondent's counsel, who is not counsel on this application, was proceeding on the basis of the provisions of Division 6 of the Family Law Act dealing with relocation. There are also indicators that the respondent moved with the children when no application was brought by the claimant within 30 days of the June 27th letter as contemplated by Division 6 and specifically s. 68. [13] As noted, the only order in this case is a consent order dated September 26, 2023, granting the claimant parenting time, one time in Revelstoke at Thanksgiving and another in Alberta. [14] There is no issue on this application as to the court's jurisdiction. The respondent agrees that this Court should determine the issues. There is also no issue that Division 6 of the Family Law Act is not applicable to these parties' circumstances. [15] The claimant says there is no relocation application before the Court and that the children should be returned until this case including any relocation application, if made, can be heard. [16] Included within his written submissions in the summary of his position are these comments: The shared parenting arrangement had been implemented with a view towards promoting consistency for the children. There is no evidence that the arrangement was not in the children's best interest. Ms. [K]. has

unilaterally changed the children's residence. Ms. [K] offers little, if any, explanation for her "midnight move" beyond her acknowledgement that Mr. [H] was opposed to it. [17] The relocation is a significant event and the children deserve for the parties and, if necessary, the court to carefully consider how it will impact the children and the extent to which it is or is not in their best interests. [18] The claimant also points to numerous assertions in his affidavits that are not disputed by the respondent in her responsive materials. Those are summarized in his argument from paragraph 48 and 49 as follows: 48. Importantly, Ms. [K]'s Affidavit does not contain a blanket denial with respect to Mr. [H]'s evidence. This is significant in that many issues are not controverted in Ms. [K]'s Affidavit and the inference to be made is that Mr. [H] is factually correct and his evidence is accepted by Ms. [K]. . . .

49. The resulting gaps in Ms. [K]'s responses and the uncontradicted evidence of Mr. [H] may be summarized as follows: Para. Evidence Para. 23 In regard to the implementation of the shared parenting arrangement:"... From what I observed, the Children were happy and did well with this change." Paras. 58-60 Regarding the Children: 59. They are both happy and healthy little boys with many friends and family members. 60. [K.] and [D.] have a family doctor, Dr. Mostert at Selkirk Medical Clinic, and a dentist, Dr. Gale at MacKenzie Dental Clinic, in Revelstoke. Paras. 74-76 Regarding living in Revelstoke: 74. Early in my relationship with [J.K.], she and I discussed and mutually decided to make a life for our family in Revelstoke.

75. Prior to our separation, we never discussed moving away from Revelstoke.

76. I am proud to have been born and raised in Revelstoke. During our relationship, it was always my impression that [J.K.] was happy in Revelstoke and appreciated what it had to offer: close friends and family, great schools, medical services, a close-knit community and outdoor activities. Para. 85 Following the move to Fort Saskatchewan: a. Initially [J.K.] threatened to call the RCMP if I traveled to Fort Saskatchewan and attempted to see the Children, and she said they were aware of the move. I have contacted both the Alberta and the BC RCMP and have been assured that there are no protection orders against me. b. There has been no specific proposal made by [J.K.] as to how she foresees my parenting time occurring. c. [J.K.] enrolled the Children in school in Fort Saskatchewan before she even made it known to me that she had left with the Children. She revealed her plan in her August 31, 2023 email (Exhibit "D") stating that the Children were enrolled in school. d. I do not know if the Children are enrolled in any after school activities. e. Initially I was calling [J.K.] nightly in hopes of speaking with the Children. [J.K.] answered infrequently. f. [J.K.] has sent me a text indicating that I can only speak with the Children on Tuesdays and Thursdays going forward . . . [19] The claimant argues that it is in the best interests of the children that they be returned pending

such applications and further resolution of the issues in this family law case. [20] The respondent agrees that this is not a relocation application but argues a very different application of the applicable principles. She says that since the relocation has already occurred, the only question is the best interests of the children and that sections 45 to 48 of the Family Law Act do not apply. [21] She says the analysis of the best interests of the children supports allowing the children to remain in Fort Saskatchewan. She summarizes her arguments in respect of the various factors set out in s. 37.2 of the Family Law Act in her argument. I will not reference all of those points but include a portion of that argument below: 42. . . . (a) The Children are thriving within a fostering educational facility and reside in a large family home in a residential community. [K.] has made friends, joined a youth group and is supported by his loving grandparents and [J.K.]'s support network. [D.] attends Kindergarten and [J.K.]'s Mother helps with childcare when he is not in school and she is working. b. [J.K.] is gainfully employed and resides in substantial accommodations that are covered by her parents until such time she acquires her own accommodations. [J.K.]'s financial health and overall happiness provide the collateral benefit of a happy home - "happy mom leads to a happy child". The

housing market is affordable and the current living situation serves as a bridge until such time the former family home is sold and the Children are permitted to remain in Fort Saskatchewan, Alberta. c. [J.K.] has remained the primary caregiver throughout the Children's lives because she was self-employed within the home. Circumstances in Alberta enabled her to obtain gainful employment outside the home, increasing her self-sufficiency and reducing her dependency and need for spousal support. . . . i. [D.], aged 5, started kindergarten in the Fall and has formed attachments with his teacher and friends. [J.K.]'s mother cares for [D.] on the days he is not in school and when she is working - an opportunity that was not available in Revelstoke. j. For all intents and purposes, the parties have supported each other and fostered supportive relationships with the Children. But for the unresolvable relocation issue, they have fumbled their way through the separation process rather smoothly. [22] I find it unnecessary to determine the question of whether the respondent made the move in bad faith or whether a relocation may at some point and ultimately be in the best interests of the children. Certainly the latter and perhaps both questions will need to be resolved with the benefit of a more fulsome hearing and perhaps a trial. [23] What I can conclude on the evidence is the following.

The respondent indicated a desire to move with the children to Fort Saskatchewan. The claimant clearly indicated he was opposed. The respondent did not inform the claimant of her plans to execute the move with the children in any event of his objection. There was no further mediation or discussion as between the parties to resolve the issue. [24] The children had spent their entire lives in Revelstoke with extended family in the area and connections with other extended family including in Fort Saskatchewan. Both parties had been actively involved in parenting the children. The move was not because the children needed a home or access to schools or healthcare. They were not escaping family violence. [25] I will acknowledge the respondent makes suggestion and arguments that certain aspects of the healthcare of the children are better served in Fort Saskatchewan. The children and the respondent were living in an apparently very nice home, attending school, and had medical care. Revelstoke is a community with full services. [26] There were features of these parties' circumstances on separation that exist in a large proportion of relationship breakdowns including one party having limited income and financial resources, unresolved financial issues including spousal support and child support, and disposition of the former matrimonial home. [27] As I noted, both parties agree that

Division 6 of the Family Law Act does not have application. Sections 45 through 48 of the Family Law Act are relevant. Section 46 sets out the following: 46 (1)This section applies if all of the following circumstances exist: (a) no written agreement or order respecting parenting arrangements applies in respect of a child; (b) an application is made for an order described in section 45 (1) (a) or (b) [orders respecting parenting arrangements]; (c) the child's guardian plans to change the location of that child's residence and the change can reasonably be expected to have a significant impact on that child's relationship with another guardian. [28] Subsection 2 requires that in addition to the section 37.2, best interests of the child considerations, the reasons for the change in location are to be considered, and the court must not consider whether the guardian who is planning to move would do so without the child or children. [29] Section 48 provides that if there is no agreement or order respecting parenting arrangements and the child's guardians had in place an informal parenting arrangement for a period of time sufficient for those arrangements to have been established as a normal part of the child's routine, the child's guardian must not change the informal parenting arrangements without consulting the other guardians who are parties to those arrangements unless

consultation would be unreasonable or inappropriate in the circumstances. [30] I will note as well that generally the Family Law Act promotes mediations, consultations, and arbitrations and dispute resolution mechanisms other than court applications. Specifically, section 4 of the Act says the purposes of this part are as follows: 4 The purposes of this Part are as follows: (a)to ensure that parties to a family law dispute are informed of the various methods available to resolve the dispute; (b)to encourage parties to a family law dispute to resolve the dispute through agreements and appropriate family dispute resolution before making an application to a court; (c)to encourage parents and guardians to (i)resolve conflict other than through court intervention, and (ii)create parenting arrangements and arrangements respecting contact with a child that is in the best interests of the child. [31] As I have observed in previous decisions, generally the provisions dealing with relocation whether under Division 6 or in ss. 45 through 48 are forward‑looking. They contemplate as noted in s. 46.1(c) that where a relocation is planned, an application will be made and that there will be consultation. [32] The respondent's position interprets these as permitting relocation without an order. I leave for determination on a more fulsome argument whether a letter from counsel advising of an

intention to relocate which is written without prejudice and is met with objection satisfies the consultation requirement, but I will observe it is at a minimum a strained interpretation. [33] Within the claimant's written argument are references to decisions in BC. The first, a decision of Shortridge‑Tsuchiya v. Tsuchiya, 2010 BCCA 61. There at paragraph 68, the Court said this: [68] It is not the case that a parent's only rights to custody of, and/or access to, their children are defined by court order. At common law, and under Part 2 of the Act ... Referencing then the Family Relations Act: ... the mother and father of a child who are living together are the joint guardians of the child with joint rights and obligations in relation to the child. If one parent unilaterally removes the child from the jurisdiction without the knowledge or consent of the other parent, this amounts to a wrongful taking of the child and a breach of the other parent's rights as joint custodial parent. The fact that there was no order in place may be relevant to the father's ability to enforce his rights, but the absence of an order does not mean that those rights are non‑existent. This was the view of Madam Justice Levine in Hewstan v. Hewstan, 2001 BCSC 368, where she stated, at para. 35: . . . There can be no doubt that one parent having joint guardianship rights over the person of a child cannot

remove a child from the jurisdiction without the consent or over the objections of the other. [34] In a much more recent decision in Roman‑Manarovici v Manarovici, 2022 BCSC 1159, the following are contained at paragraphs 10 and 11: [10] The mother's submissions on this application were largely focused on attempting to convince the Court that it was in the best interests of the children to remain in British Columbia. Emphasis was repeatedly placed on the requirement, now expressly mandated in both the recently amended Divorce Act as well as the FLA, that the Court "must take into consideration only the best interests of the children". In some respects, the mother is effectively asking the Court to retroactively rule on the merits of a relocation application that was never made before her unilateral departure from Alberta with the children. [11] But there is another fundamental principle that must also be considered: The unilateral removal to another province by one parent of children formerly co‑parented by both parents in a different province amounts to child abduction. Absent consent by both parents, both the FLA and the newly amended Divorce Act now require formal notice and a court hearing before any such relocation is permitted. [35] I pause to note that this seems to be a reference to Division 6 of the Family Law Act, although, in my review of the decision, that wasn't

specifically addressed. The Court carried on: [11] . . . Except perhaps in extraordinary circumstances such as urgently removing the children to safety from ongoing family violence or the like, the court is rightly reluctant to endorse unilateral self‑help relocation remedies such as the one that has occurred in this case. [36] One major problem with unilateral relocation is the impact on the children. Without a determination being made as to whether the relocation is in their best interests, the relocating party puts them at risk of also having to return. The argument that the new status quo should govern is a back door means of preventing the very determination intended to be undertaken in advance. [37] The advanced determination of best interests is the desired approach regardless of any specific provisions in the Family Law Act or the Divorce Act. What is not healthy or productive are unilateral decisions being made to de facto relocate without the issues of what is in the children's best interests being fully considered by consultation or determined ultimately by the court. [38] On the facts here, there was not any urgency or necessity for the move, and there was not a basis, in my view, to depart from the legislative expectation or the practical expectation that there should be a consultation and/or an application in advance. When read holistically, the expectations

within the Family Law Act are that there would be a consultation unless that was unreasonable or inappropriate. I do not have evidence that that was the situation here. [39] Consultation is not mandatory before an application but here there was neither consultation nor an application. To the extent that the respondent's decisions were fueled by legal advice, that is unfortunate for all concerned and in particular the children. [40] I will comment briefly on the s. 37.2 factors and my interpretation based on what I view to be limited evidence available to me on the matters. The first consideration is the children's health and emotional well‑being. In my view, those on the evidence that I have available to me weigh in favour of the children remaining in the former matrimonial home or otherwise in Revelstoke, the community where they spent their entire lives. [41] The evidence with respect to their health and the availability of services or treatment for any mental health conditions is not well developed, in my view, and it is not clear to me that any such services are not available in the Revelstoke area. [42] There may ultimately be found to be some benefits in Fort Saskatchewan, but in my view on the evidence that I have, they do not outweigh what is available in Revelstoke, and it is not clear the parties themselves are in full agreement as to the best approach in addressing

the children's issues. [43] The next consideration is the children's views unless it would be inappropriate to consider them. Certainly I do not view it as being inappropriate to consider them, and I have nothing specifically with respect to the children's views. [44] The third consideration is the nature and strength of the relationships between the child and significant persons in their lives. As it is most favourable to the respondent, this is a neutral consideration. But on the evidence that I have available to me, it is my conclusion that this consideration does not favour the move to Fort Saskatchewan. [45] The children have spent their entire lives in Revelstoke and have extended family there. While there is extended family in Fort Saskatchewan, the evidence from both parties appears to be that those relationships were maintained prior to the move, and the move is certainly not necessary to enhance those relationships, and it would detract from the relationships the children have in Revelstoke. [46] The history of the children's care is that both parties have been involved with the children. It is fair that there had been somewhat of a traditional arrangement while the children were in Revelstoke because the claimant worked full time and the respondent worked from home and was principally involved in their care. That does not mean that the claimant was not actively

involved, and I find on the evidence available to me that he was. Certainly since separation, it was a shared parenting arrangement encouraged and actually instigated by the respondent. [47] In respect of the children's need for stability and their age and stage of development, stability is not fostered by multiple moves. They were in Revelstoke and spent their lives in Revelstoke. Uprooting them without any clear evidence as to the children's views, stability would have and in my view continues to favour their remaining in Revelstoke until the issues are fully litigated. [48] I struggle with the argument that a new status quo was created in the circumstances. First of all, a new status quo has not been established given the relatively short time, and second that that should gain specific traction in light of the overall circumstances of the move. [49] Certainly the move substantially impacts the claimant's abilities to remain actively involved with the children. I have no basis to conclude that that is not either necessary or positive from the perspective of the children. If the respondent chooses to remain in Fort Saskatchewan, the reverse may hold true, but at this point, it is either Fort Saskatchewan or Revelstoke. And in my view, the children's continued residence in Revelstoke is preferred. [50] Issues of family violence are not applicable here, and I don't intend to

address those. [51] I will make the observation that, in terms of the parties' ability to cooperate, despite what differences they had in respect of the children, at least, the joint parenting arrangement or shared parenting arrangement seemed to be working. [52] Considering s. 37.2 and having regard to the circumstances as a whole, it is my view that preserving the children's residence in Revelstoke and the claimant's parenting time, together with ensuring that there be a consultation or short of that applications and fulsome hearing on the merits as to any proposed relocation, the children should be returned to Revelstoke. [53] In respect of the specific order sought in this application, I would then grant the first order, that is that the respondent forthwith return the children to Revelstoke, that the respondent not remove the children from Revelstoke without the written consent of the claimant or further court order. [54] I am not inclined, counsel, to impose a police enforcement clause. I struggle with involving police unless it becomes absolutely necessary, and I don't have any specific inclination to order that in this case. Obviously I expect that the orders will be followed, and there are enforcement provisions within the Family Law Act to deal with that. [55] I would also grant the orders 4 and 5 sought, that is that on an interim basis, the parties resume the shared

week-on, week-off parenting arrangements. Obviously my order does not compel the respondent to return, and if she chooses not to, the children will reside with the claimant in Revelstoke. If she chooses to return, then the children would reside with the respondent in Revelstoke, presumably in the former matrimonial home until such time as other arrangements, orders, or agreements are reached. [56] With respect to the declaration that the children are habitually residents in the province of British Columbia, I don't know that it's necessary to make that order in light of the agreement. This Court has jurisdiction, and the orders that I have made which obviously assume jurisdiction. [57] I believe that the only other issue to be dealt with is the matter of costs unless counsel identifies some other corollary matter that I should address. [58] CNSL E. CRAM: No, Justice. In the circumstances given, the claimant's applicant has been almost entirely successful in the relief sought. In my respectful submission, it would be appropriate for the court to exercise its discretion, to follow the usual course whereby costs would be awarded to the claimant. Given the complicated, to some extent complicated nature, of this application and the significant expense that he has been put to in a very early stage in the proceeding, we have sought costs to be payable in any event of the cause. [59]

Subject to any questions, those are the brief submissions I would make in relation to the cost. [60] THE COURT: Thank you. Ms. Casselman? [61] CNSL E. CASSELMAN: Thank you, Justice. With respect to our submissions, I would ask the court to consider that the relocation was done at the instruction of counsel. Regardless, I'm asking the court to acknowledge that there has been expense already to Ms. [K.]. She does now bear the expense of returning back. I would ask that no costs are ordered against her in light of the fact there's a burden she will be carrying to return, make those adjustments, and also finding housing and whatnot. There are a number of hurdles ahead of her. [62] THE COURT: Here is what I'm going to do. In my view, this is a situation where making an order for costs in favour of the claimant is appropriate, and I do that in any event of the cause. I am, however, wanting to be clear that I do not want the burden of the costs order until financial issues are resolved and perhaps including issues of child support, spousal support, disposition of the family home, and other living expenses which impact the children are dealt with. [63] So I will make the order that the claimant is entitled to his costs in any event of the cause, but I will attach to that a requirement that any recovery or steps towards recovery of those costs not be dealt with until, at a minimum,

child support and spousal support issues are dealt with. [64] And then only payable by ‑‑ well, I'm interested in counsel's assistance on how to frame it. I just don't want it to be something where the claimant is going out to enforce costs and creating additional financial stress until the respondent's financial situation has stabilized or permits it in some way. And to the extent that child support and spousal support may provide, that's possible. [65] So what I have in mind is the costs order would be in place, but it would be unenforceable without further application to the court, potentially in the context of dealing with other financial issues, if the matrimonial home is sold, and if, indeed, there is substantial equity to be disbursed at that point. [66] That may be a time when child support or spousal support are dealt with, but my inclination is to leave it until there is an agreement between the parties or a further court order in terms of the payment of those costs. So this would simply establish the entitlement to the costs. [67] CNSL E. CRAM: Certainly I would expect that my friend can work out the specific wording of the order, but the intent of the order has been made clear, and I don't anticipate there should be any issues in terms of the enforcement. It's really just a matter of the order itself having been granted. [68] THE COURT: Thank you. Ms.

Casselman? [69] CNSL E. CASSELMAN: Thank you, Justice. I agree with my friend. I just ask, I guess, that it be ordered on the record that in the event that my friend and I are unable to agree on the appropriate terms, we have leave to bring it before yourself. I don't anticipate this happening, but if it does occur that we're permitted to do that. [70] THE COURT: Yes. [71] THE COURT: That's fair. Let me just express the intention perhaps more clearly. I'll take a stab at it, at least. I made the order in terms of entitlement to costs. Any recovery of the costs will be subject to agreement of the parties or further court order in the context of resolving broader financial issues, at a minimum being child support and spousal support or disposition of the former matrimonial home. [72] I think that captures my intention sufficiently. "Justice Betton"