G.C. v. A.V.S.

2019 BCSC 2242 G.C. v. A.V.S.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: G.C. v. A.V.S., 2019 BCSC 2242 Date: 20191223 Docket: E55580 Registry: New Westminster Between: G.C. Claimant And A.V.S. Respondent Before: The Honourable Mr. Justice Giaschi Reasons for Judgment Claimant, appearing in person and Counsel appearing on June 27, 28 and July 17, 2019: G.C. D. Glass Counsel for the Respondent: P. Busch Place and Dates of Trial: New Westminster, B.C. June 24-28 and July 17-19, 2019 Place and Date of Judgment: New Westminster, B.C. December 23, 2019 Table of Contents I. Introduction.. 4 II. Facts. 5 III. Issues. 14 IV. Parenting Arrangements and Relocation.. 15 A. Section 37 & 38 Factors. 19 1. A.E.'s health and emotional well-being. 19 2. A.E.'s views, unless it would be inappropriate to consider them.. 20 3. The nature and strength of the relationships between A.E. and significant persons in her life. 20 4. The history of A.E.'s care. 20 5. A.E's need for stability, given her age and stage of development 21 6. The ability of each person who is a guardian or seeks guardianship of A.E., or who has or seeks parental responsibilities, parenting time or contact with A.E., to exercise his or her responsibilities. 21 7. The impact of any family violence on A.E.'s safety, security or well-being, whether the family violence is directed toward her or another family member 23 8. Whether the actions of a person

responsible for family violence indicate that the person may be impaired in his or her ability to care for A.E. and meet her needs. 26 9. The appropriateness of an arrangement that would require A.E.'s guardians to cooperate on issues affecting her, including whether requiring cooperation would increase any risks to the safety, security or well-being of A.E. or other family members. 27 10. Any civil or criminal proceeding relevant to A.E.'s safety, security or well-being 27 11. Other matters of relevance. 27 B. Relocation Factors. 28 1. Is the request for relocation made in good faith?. 28 a) The reasons for the proposed relocation. 28 b) Whether the proposed relocation is likely to enhance the general quality of life of A.E. and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities. 30 2. Has the relocating guardian proposed reasonable and workable arrangements to preserve the relationship between A.E. and her other guardians?. 31 3. Is relocation in the best interests of A.E.? 33 C. Conclusions on Parenting and Relocation. 33 V. Child Support. 34 A. Imputation of Income. 34 B. Child Support Calculation. 36 VI. Spousal Support. 36 VII. Disposition.. 39 I. Introduction [1] This family law matter concerns unique and special circumstances. The parties began living in a marriage-like relationship on or about

September 1, 2016 and separated on or about June 19, 2018. There is one child of the relationship, A.E., born in Vancouver in February 2018. The unique circumstances stem from the fact that the respondent, A.V.S., is a German citizen without Canadian immigration status. She is presently in Canada on a temporary visa, is not able to legally work, and currently resides with A.E. in a subsidized housing community for single mothers. This situation has come to pass because of the swift, if not impulsive, development of the relationship between the parties. They first met in Thailand in February 2016. They spent approximately one week together before the respondent returned to her home in Germany. In April 2016, the respondent returned to Thailand and she and the claimant, G.C., resumed their relationship. They lived and travelled together until June 2016 when the claimant returned to Canada and the respondent returned to Germany. In August 2016, at the urging of the claimant, the respondent flew to Alberta. The couple almost immediately moved to the Lower Mainland of British Columbia and began living together until their separation on June 19, 2018, when the respondent moved with A.E. into an emergency woman's shelter. [2] Both of the parties initially sought sole guardianship of A.E. but each now concedes that there should be joint guardianship. [3] The claimant, seeks an order of

shared parenting of A.E. with the child residing primarily with him and with him having the final say on decisions respecting parenting. He also seeks an order that the respondent pay child support and special and extraordinary expenses under the Family Law Act, S.B.C. 2011, c. 25 [FLA]. Finally, he seeks an order permitting him to relocate with A.E. to Calgary, Alberta. The claimant alleges that the respondent suffers from serious mental health issues, that she is unable to care for A.E., and that the safety and protection of A.E. requires the Court's intervention. He further questions the living arrangements of the respondent and A.E. which he describes as "transitional living" and an "untenable and unstable" situation. [4] The respondent also seeks shared parenting of A.E. but on a 70/30 basis with the larger percentage being her parenting time. With respect to parental responsibilities, she agrees these are to be shared but she wants the final say. The respondent also requests orders that the claimant pay spousal support, child support, and special and extraordinary expenses under the FLA. The respondent adamantly opposes the relocation of the child to Calgary, something which she believes is motivated by bad faith and is intended to marginalize her ability to be a parent to A.E. She alleges that the claimant has, throughout their relationship, been controlling and

physically, emotionally, and financially abusive. She says the attempt to relocate to Calgary is a continuation of that control and abuse. [5] For the reasons set out below, I am of the view that the best interests of A.E. dictate that she not be relocated to Calgary, that parenting time be shared on a roughly 70/30 basis with the larger percentage being the respondent's parenting time, and that the parties share the parental responsibilities with the respondent having the final say. The claimant shall pay child and spousal support to the respondent in the amounts of $764 and $1,653 per month, respectively, which amounts will be subject to review upon a change in the immigration status of the respondent. II. Facts [6] I have heard detailed testimony from the parties of the history and development of their relationship and have heard the testimony of family members and friends of the parties. I do not intend to revisit all of this evidence, as much of it was not particularly relevant to the issues before me. Rather, what follows is a brief recitation of the facts that I consider are relevant to the issues. [7] The claimant is 34 years of age. He grew up in Calgary and obtained a Bachelor of Applied Petroleum Technology degree from the South Alberta Institute of Technology. In 2009 or 2010 he moved to Vancouver where he attended the University of British Columbia and obtained a

Bachelor of Applied Science degree in mechanical engineering. He is very proud of his academic accomplishments and of the fact that he paid his own way through school, with government assistance. Upon the completion of his studies, he returned to Calgary for a brief period of time before travelling to Australia where he lived and worked until late 2015 or early 2016. He then traveled to Thailand where he worked illegally until April 2016. [8] The respondent is 31 years of age. She is a German citizen and lived in Germany her entire life. She has the equivalent of a high school education. She also apprenticed for three years as a social assistance worker working with the elderly and children. Her work history, after her apprenticeship, consisted of several temporary jobs and five years working in a furniture store that was owned by her then boyfriend. She traveled to Thailand for a vacation with a family friend in February 2016. [9] The parties met in Thailand on February 2, 2016. They spent the next seven days together. The respondent testified that she fell in love with the claimant during those seven days. The claimant likewise appears to have fallen in love as he admitted in cross-examination that he probably proposed marriage to the respondent during this period. At the conclusion of her holiday, on February 9, 2016, the respondent returned to Germany. Her intention,

however, was to return to Thailand as soon as she could. [10] Between February 9 and April 2016, the parties communicated on a daily basis via internet chat messaging. In their communications, they expressed their desire to live together and even discussed marriage. [11] In April 2016, the respondent returned to Thailand and the parties resumed their relationship. They lived and travelled together until June 2016 when they essentially ran out of funds. The claimant returned to Canada and the respondent returned to Germany. As before, the parties continued to communicate on a more or less daily basis. The communications concerned how they could resume their relationship. At this time, the claimant invited the respondent to live with him in Vancouver and she accepted. [12] In August 2016, the respondent flew to Calgary. Shortly after her arrival, the parties drove to Vancouver. Their intent always was to live in Vancouver, not Calgary. The claimant testified in cross-examination that Vancouver was chosen because it was more of an international city and he felt life would be easier for the respondent in Vancouver. The claimant had also been offered a job in Vancouver. Upon arrival in Vancouver, the parties rented an apartment in Surrey that had been pre-arranged by the claimant's employer. They later moved to an apartment in Kitsilano. [13] The respondent entered Canada under a

temporary visa that would have allowed her to work in Canada if she took the necessary steps to activate it. The respondent did not immediately take those steps and, therefore, did not seek employment. Rather, she spent her time cooking meals and looking after the home. The failure of the respondent to activate her visa and seek employment became a point of contention between the parties and a source of considerable frustration for the claimant. [14] Although the respondent was not employed in Vancouver in 2016, she was receiving income throughout 2016 and into early 2017. The income was in the form of social assistance payments from Germany. She also had savings of between €8,000 and €10,000, which she drew upon from time to time. [15] In November 2016, the respondent returned to Germany to visit her family. The claimant joined her in December 2016. The parties returned to Vancouver in January 2017. The claimant gave evidence in relation to various matters concerning the respondent's family and friends in Germany. This evidence concerned family members and friends allegedly having mental health issues and alcohol and drug abuse problems. The claimant also referred to sexual abuse having occurred within the respondent's family and to the respondent. I consider all of this evidence to be not relevant to the issues before me. Such evidence might be relevant if relocation of A.E.

to Germany was an issue, but no such order is being sought. [16] Following the parties return to Vancouver, a work permit was finally issued to the respondent on April 23, 2017. The permit was valid for one year and was not renewable. Notwithstanding the issuance of the work permit, the respondent made minimal efforts to find employment and did not, in fact, work during the time the visa was valid. [17] The relationship between the parties substantially deteriorated in 2017 with frequent arguments and some incidents of family violence. The respondent testified that the claimant was often upset with her, that he complained about everything she did, and that she could never do anything the right way for him. For his part, the claimant was clearly frustrated about what he perceived as the respondent's failure to share the financial burden. He thought the relationship had become dysfunctional and toxic. Both parties were also concerned the other was seeking sexual relations with third parties. [18] The claimant testified that in February 2017, the respondent slapped and punched him. He testified that there was a photograph of his injuries following this assault and that a report was made to police of the incident, however, neither the photograph nor the police report were tendered in evidence. In the absence of this readily available corroborating evidence of the alleged assault, I

am not prepared to accept the testimony of the claimant that this assault occurred. [19] On June 23, 2017, the parties had an argument while in a car. It is not clear on the evidence exactly what the argument was over. In any event, the car was stopped in a rural location and the claimant went for a walk. He was followed by the respondent who was clearly upset at him. The claimant took a video of the respondent. The video shows the respondent throwing a rock or two towards the claimant but from quite a distance away. The respondent had little recollection of what led to this incident other than she said the claimant had been mean to her. [20] On July 2, 2017, the parties had yet another argument that ended with the respondent on their balcony screaming and the RCMP being called. The claimant spent that night with a friend. [21] In August 2017, the respondent left for Germany on a one way ticket. [22] It is not entirely clear on the evidence when the parties discovered that the respondent was pregnant with A.E. The text messages between the parties indicate that they became aware in late June 2017. This was also the evidence of the claimant in examination-in-chief. However, in cross-examination, the claimant seemed to testify that the respondent was in Germany when they learned of the pregnancy. The evidence of the respondent was that she became aware of the pregnancy after she

had returned to Germany. The date that the parties became aware of the pregnancy is not particularly relevant. What is relevant is that the pregnancy immediately gave rise to a question of whether the respondent should have the child. [23] Throughout September and October 2017, the parties communicated concerning their future. The respondent agonized over whether she should have the child or abort it. She indicated to the claimant that she was considering an abortion which could be obtained in the Netherlands. The claimant was adamant that he did not want the pregnancy aborted. The claimant encouraged the respondent to return to Canada. He repeatedly professed his love for her, proposed marriage, and painted rosy pictures of what their life together could be like as a family. The respondent was reluctant to return. She recognized that their relationship had been fraught with problems. In her texts to the claimant she referenced what she perceived as his abusive behaviour towards her, including him constantly screaming at her and calling her "stupid fuck", "worthless", and "insane". She wanted to be with the claimant but needed time to think. [24] While in Germany, and while struggling with whether to have an abortion or to return to Canada and have the child with the claimant, the respondent sought professional assistance and was voluntarily admitted to a psychiatric hospital

to participate in an experimental program. The program was not helpful to her so she left after a short period of time. The claimant asks me to find that the admission of the respondent into a psychiatric hospital is indicative of her having mental health issues. I decline to make any such finding. I accept the evidence of the respondent that this was merely to help her cope with what was an overwhelming and very stressful situation. I also consider that the claimant's inability to recognize the extent of the respondent's emotional turmoil to be indicative of him being self-centered and narcissistic and lacking empathy. [25] The respondent did not have an abortion. On November 21, 2017, she returned to Canada and the parties again resumed living together. At this time, the respondent had approximately €3,000 in savings left. [26] On February 23, 2018, A.E. was born. This led almost immediately to a disagreement between the parties regarding breast feeding. The respondent tried to breast feed A.E. but was not able to produce sufficient milk. She tried using a breast pump but found that she would spend the whole day pumping and feeding and did not get enough sleep. She therefore decided to bottle feed A.E. rather than breast feed. The claimant disagreed with her decision and repeatedly berated her for it. He thought breast feeding was important and that the respondent should do

it. Shockingly, the claimant testified in cross-examination that the respondent did not breast feed because it was too much work, that she did not understand how breast feeding worked, and that if she just breast fed more often, more milk would be produced. I accept none of the claimant's evidence about breast feeding but consider it indicative of his hubris and arrogance and of his attempts to domineer and control the respondent. [27] The parties had multiple other arguments concerning A.E. The claimant clearly felt that the respondent was not caring for A.E. properly. The claimant complained that the respondent was not putting A.E. in her crib to sleep but instead would sleep with her on the couch or in bed, something he thought was wrong. The claimant also complained that the respondent was not giving A.E. enough skin-to-skin contact. [28] On June 5, 2018, there was an incident between the parties over breast feeding or some other aspect of how the respondent was caring for A.E. Neither the respondent nor the claimant could specifically recall what the incident was about. In any event, the argument escalated and became physical with the respondent hitting the claimant several times. The following day, the respondent apologized to the claimant for hitting him and the claimant apologized to the respondent for being mean. [29] On June 18, 2018, the parties got into another

argument over the feeding of A.E., but this time in relation to bottle feeding. Upon waking in the early morning, the claimant observed the respondent feeding A.E. in the bed and holding the bottle with two fingers. He commented that the respondent should hold A.E. when feeding her. The respondent disagreed that was necessary. The claimant, again displaying his domineering character, told the respondent "I have much more experience with children. I'm telling you I want my daughter held when she is fed, it helps with her gas." The argument again escalated into some physical violence by both parties. The respondent scratched the claimant. The claimant forcibly grabbed the respondent, put his hand around her mouth and forcibly confined her. He also threatened to kill her. The claimant was arrested for family violence and a no contact order was issued. The following day the respondent sent a text to the claimant advising him that she will no longer tolerate his offensive behaviour and that she is worthy of respect. [30] Following the June 18, 2018 incident, the respondent and A.E. moved into an emergency woman's shelter. Thereafter, the claimant commenced this action on June 26, 2018. He also brought an application for interim parenting time with A.E. [31] On August 9, 2018, upon application by the claimant, Master Keighley ordered, on an interim basis, that the parties share

parenting on a week-on/week-off basis. [32] The parties complied with the order of Master Keighley although at some point they varied the schedule from a week-on/week-off basis to a 3-4-4-3 schedule. This has resulted in the claimant having parenting time with A.E. on weekends and on Fridays and approximately every other Thursday. The claimant hires a nanny to look after A.E. on Thursdays and Fridays, at an average monthly cost of $738. [33] The relationship between the parties did not improve following their separation, although the incidents of physical violence did not repeat. The claimant continued to have many complaints about the parenting abilities of the respondent, including: she was not properly filling out the log book he had prepared; she did not properly carry A.E.; and, she was irresponsible in ensuring A.E. got proper medical attention. In an email to the respondent dated October 10, 2018, he wrote "I do have concerns pertaining to your current ability to parent, I want you to address your personal issues ". He further advised the respondent that this was something he was "not willing to move on" and implied that she was not "healthy and functioning". I find that the complaints of the claimant regarding the parenting abilities of the respondent are not justified. Rather, I find that the complaints and the way in which the claimant communicated the complaints are

further examples of the claimant's conceit and of his attempts to domineer and control the respondent. [34] On November 6, 2018, the respondent surreptitiously recorded a telephone conversation between her and the claimant. The admission into evidence of the recording of that telephone conversation was contested by the claimant. The recording and a transcript were admitted into evidence as Exhibits 5 and 6 on the basis that they were reliable records of the conversation and that the conversation was relevant to the issues of whether there was abuse on the part of the claimant towards the respondent. [35] The recorded telephone conversation was approximately 40 minutes in length. It is remarkable in that it is almost exclusively a one-sided, profanity laced diatribe by the claimant wherein he repeatedly insults, berates, and demeans the respondent. His insults and demeaning comments include her having behavioural and psychological issues and being dysfunctional, indecisive, financially irresponsible, lazy, ignorant, rude, and promiscuous. He audaciously accuses her of manipulating him and taking advantage of him and puts the entire blame for the family's poor financial circumstances and the failure of the relationship on her. He draws a stark contrast between the respondent and himself. He proclaims that he has taken tremendous strides to better his life, that he is financially

responsible, and, in an exceptional display of narcissism, that he is "pretty spectacular". [36] The respondent testified that she recorded her telephone conversations with the claimant because she was afraid of what was happening and thought she would need proof of the way the claimant treated her. It was her evidence that the recording played in Court is one of many that she has. She testified that she and the claimant repeatedly had such long telephone calls where he does almost all of the talking and tells her how awful she is. I accept the respondent's evidence in this regard without hesitation. [37] Despite the parties continuing to have serious problems in their relationship, in late 2018, they had a reconciliation. They recommenced living together for about five weeks. The reconciliation did not work and by January 2019 they re-separated. [38] The respondent testified that throughout the time she and the claimant were together, she did most of the housework and cooking and that she predominantly looked after A.E. The claimant testified that the respondent did very little at home or with her life generally. I prefer the evidence of the respondent over that of the claimant and accept that the respondent did most of the housework and cleaning and was the primary caregiver to A.E. [39] The respondent is currently residing with A.E. in a one bedroom apartment in a facility

run by the YWCA for single mothers. She does not work as she is not permitted to do so but testified she would work if allowed to. She receives $200 per month in gift certificates from the YWCA and $100 in donations. She obtains food from a food bank. She also now currently receives $60 per week from the claimant and, from time to time, she receives money gifts from her family in Germany. She has used up almost all of her savings. At the time of trial, she had about €100 in savings. She remains on a visitor's visa but has taken steps to apply for permanent residency. Her evidence was that she needs to await the outcome of this proceeding before actually filing her application for permanent residency status. I accept her evidence. [40] As noted, the facility where the respondent and A.E. reside is run by the YWCA, is professionally staffed, and offers programs, support, and assistance for single mothers. The respondent has made friendships with some of the other mothers in the facility and A.E. has also established friendships, to the limited extent a young infant can, with some of the children. The respondent intends to remain in the facility for the present but she is not entitled to reside there for more than two years. When her two-year limit is reached, she hopes to obtain more permanent, affordable housing that is offered by YWCA and others to single mothers on limited

incomes. [41] The claimant is gainfully employed in the Vancouver area, as he has been throughout the relationship. He earns approximately $80,000 per year. He is near to achieving his professional engineering designation, which will generate a moderate increase to his income. He has sought and obtained a confirmation from his employer that he can transfer to the employer's Calgary office at the same salary as he currently makes in Vancouver. His continued employment is not contingent on him moving to Calgary. If he does not move, he will retain his job in Vancouver. [42] Notwithstanding that the claimant has a reasonable income, he has never paid spousal support to the respondent and only started paying child support in January 2019 in the amount of $240 per month. III. Issues [43] The issues to be determined are a) parenting arrangements and relocation; b) child support; and c) spousal support IV. Parenting Arrangements and Relocation [44] It is to be noted that this matter is governed solely by the FLA, not the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.). The notice of family claim and the counterclaim are both brought pursuant to the FLA. This is so because the parties are not and never were married and, therefore, do not fall within the definition of a "spouse" under the Divorce Act. It is further to be noted that, notwithstanding that the parties lived in a marriage-like

relationship for less than two years, the FLA is applicable because A.E. was born during the time the parties lived together. This follows from s. 3(1)(b)(ii) of the FLA. 3(1) A person is a spouse for the purposes of this Act if the person (a) is married to another person, or (b) has lived with another person in a marriage-like relationship, and (i) has done so for a continuous period of at least 2 years, or (ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person. [45] The parenting issues to be determined are the allocation of parental time and responsibilities between the parties and whether the claimant should be permitted to relocate to Calgary with A.E. Although these issues are distinct, they are to be determined using a blended approach: Falvai v Falvai, 2008 BCCA 503. In other words, I am not to determine one issue before another, rather, I am to consider and balance all of the relevant factors to determine what is overall in the best interests of A.E. [46] Parenting arrangements and orders for the relocation of children are governed by Part 4 of the FLA. Section 37(1) of the FLA requires that I consider only the best interests of the child when making an order concerning parenting arrangements. A non-exhaustive list of the factors to be considered in assessing the best interests of the child is set in s. 37(2). Section

37(3) provides that an order must protect, to the greatest extent possible, the child's physical, psychological and emotional safety, security, and well-being. Section 37(4) provides that conduct of a person is only relevant to the extent that it substantially affects a factor set out in s. 37(2). 37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only. (2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following: (a) the child's health and emotional well-being; (b) the child's views, unless it would be inappropriate to consider them; (c) the nature and strength of the relationships between the child and significant persons in the child's life; (d) the history of the child's care; (e) the child's need for stability, given the child's age and stage of development; (f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (h)

whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (j) any civil or criminal proceeding relevant to the child's safety, security or well-being. (3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being. (4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor. [47] Family violence is a relevant factor under s. 37(2)(g) and (h). Family violence is to be assessed in accordance with s. 38. 38 For the purposes of section 37 (2) (g) and (h) [best interests of child], a court must consider all of the following: (a) the nature and seriousness of the family violence; (b) how recently the family violence occurred; (c) the frequency of the family violence; (d) whether any psychological or emotional abuse constitutes, or

is evidence of, a pattern of coercive and controlling behaviour directed at a family member; (e) whether the family violence was directed toward the child; (f) whether the child was exposed to family violence that was not directed toward the child; (g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence; (h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring; (i) any other relevant matter. [48] With respect to the request by the claimant for relocation to Calgary, this issue is not properly raised in the pleadings that have been filed. The notice of family claim did not request such relief. However, the omission to plead such relief was not raised in argument by the respondent and I will address the relocation issue as though it had been properly raised in the pleadings. I note that the respondent was not taken by surprise as the claimant had filed an application for relocation on February 13, 2019, which was never heard, and his trial brief filed April 24, 2019, specifically identified relocation as an issue. [49] The relocation of a child is to be addressed under s. 69 of the FLA, if there is an existing agreement or order, or under s. 46, if there is no agreement or order. The main difference between these provisions is that there is a higher burden on a parent seeking to relocate with a child under s. 69 than under s.

46. Under s. 46, the court must consider the reasons for the re-location whereas under s. 69, the court must also consider whether the proposed relocation is in good faith and whether there are reasonable and workable arrangements to preserve the relationship between the child and the non-relocating spouse. [50] The parties have argued the matter before me as though s. 69 of the FLA governs the relocation issue. They have done so because of the interim order of Master Keighley dated August 9, 2018, which directed that the parties have equal interim parenting time of A.E. In view of this apparent agreement, I will apply s. 69 to the relocation issue. However, I note that the law on this point may not be entirely settled. In K.W. v. L.H., 2018 BCCA 204, at para. 93, the Court left open the question of whether s. 69 was properly applicable in circumstances where an interim order had been made in advance of a claim or notice of intention to relocate. [51] Section 69 of the FLA provides as follows: 69 (1) In this section, "relocating guardian" means a guardian who plans to relocate a child. (2) On application by a guardian, a court may make an order permitting or prohibiting the relocation of a child by the relocating guardian. (3) Despite section 37 (1) [best interests of child], the court, in making an order under this section, must consider, in addition to the factors set out in

section 37 (2), the factors set out in subsection (4) (a) of this section. (4) If an application is made under this section and the relocating guardian and another guardian do not have substantially equal parenting time with the child, (a) the relocating guardian must satisfy the court that (i) the proposed relocation is made in good faith, and (ii) the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life, and (b) on the court being satisfied of the factors referred to in paragraph (a), the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise. (5) If an application is made under this section and the relocating guardian and another guardian have substantially equal parenting time with the child, the relocating guardian must satisfy the court (a) of the factors described in subsection (4) (a), and (b) that the relocation is in the best interests of the child. (6) For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following: (a) the reasons for the proposed relocation; (b) whether the proposed relocation is

likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities; (c) whether notice was given under section 66 [notice of relocation]; (d) any restrictions on relocation contained in a written agreement or an order. (7) In determining whether to make an order under this section, the court must not consider whether a guardian would still relocate if the child's relocation were not permitted. [52] As the order of Master Keighley provided for shared parenting time, the governing provision is s. 69(5) which means that the claimant must satisfy me that the proposed relocation is in good faith, that there are reasonable and workable arrangements to preserve the relationship between the respondent and A.E. if relocation is granted, and that the relocation is in the best interests of A.E. Moreover, pursuant to s. 69(6), in determining whether the relocation is in good faith, I am to consider, among other things, the reasons for the relocation and whether it will enhance the general quality of life of A.E. Section 69(7) also specifically directs me to not consider whether the claimant would still relocate if the relocation of A.E. was not permitted. [53] I now turn to a consideration of the various factors relevant to the parenting arrangements and relocation. I

shall first consider the factors relevant to parenting and then the factors relevant to relocation. A. Section 37 & 38 Factors 1. A.E.'s health and emotional well-being [54] The claimant gave evidence and made submissions to the effect that the respondent was not a good parent and endangered the health or well-being of A.E. He gave numerous examples of situations where, in his view, the respondent was not taking proper care of A.E. I do not intend to review all of the circumstances and incidents raised by the claimant. They included: failing to breast feed; not holding A.E. properly when feeding; not properly filling out the log book used by the parties to keep one another informed of A.E.'s condition; and sleeping with A.E. in a bed rather than using a crib. [55] I do not accept the evidence and submissions of the claimant that the conduct of the respondent has endangered the health or emotional well-being of A.E. in any way. In fact, I find that both respondent is a loving, attentive, and caring parent. This was confirmed by A.P., an acquaintance of the respondent, who testified the respondent was a patient and dedicated mother. [56] However, I do have concerns about the ability of the claimant to see to the emotional well-being of A.E. As detailed below and above, I find that the claimant has displayed selfish and narcissistic tendencies that have interfered with, and are

likely to continue to interfere with, his ability to ensure the emotional well-being of A.E. This is not to say, however, that the claimant lacks the skills to care for A.E. He is a loving parent and has the ability to properly care for her. The nanny that looks after A.E. on Thursdays and Fridays testified the claimant was a knowledgeable and good caregiver to A.E. The problem is the claimant seems incapable of recognizing or accommodating other valid viewpoints.

2. A.E.'s views, unless it would be inappropriate to consider them [57] A.E. is an infant of less than two years of age and it is not appropriate to consider her views, assuming she was even able to communicate them 3. The nature and strength of the relationships between A.E. and significant persons in her life [58] Based on the evidence, I have no reason to doubt that both of the parties have a strong parental relationship with A.E. and that they are both devoted and loving parents. However, there is, in my view, a marginally greater connection and relationship between A.E. and the respondent due to the respondent having been the primary caregiver of A.E. until the order of Master Keighley in August 2018.

4. The history of A.E.'s care [59] The respondent was the primary caregiver of A.E. from the time of her birth until the order of Master Keighley was implemented in August 2018. Thereafter, the parties have shared custody of A.E. on a near equal basis. However, it is to be noted that when the claimant has parenting time with A.E. on Thursdays and Fridays, he does not care for her but hires a nanny during his work hours on those days.

5. A.E's need for stability, given her age and stage of development [60] The claimant submits that the current housing arrangement of the respondent is transitional, untenable, and unstable. I accept that the YWCA housing is transitional but I do not accept that it is necessarily untenable or unstable. I accept the evidence of the respondent and of A.P., who both gave favourable descriptions of the YWCA facility and of its programs and staff. It is clearly a very well-run facility that has provided valuable services and support to the respondent and to A.E. Accordingly, I do not consider the fact that the respondent and A.E. reside in a YWCA subsidized housing facility to be a factor that favours the granting of increased parenting time or parental responsibilities to the claimant. [61] Moreover, it is to be noted that the respondent finds herself in YWCA housing due to no fault of her own. She is there because she is poor. She has no income and no ability to legally earn income. This might have been avoided if the claimant had paid adequate and timely support.

6. The ability of each person who is a guardian or seeks guardianship of A.E., or who has or seeks parental responsibilities, parenting time or contact with A.E., to exercise his or her responsibilities [62] The claimant indirectly submits that the respondent is not a good parent. In addition to the points that I have addressed elsewhere, throughout his evidence and submissions, the claimant has made allegations concerning the poor parenting or poor character of the respondent. These include: · On the first day he met the respondent she was having sex with another man; · The respondent complained of having been sexually abused by her stepfather; · The respondent had a four-and-a-half year relationship with an older man; · The respondent was under the influence of LSD when she arrived at the Calgary airport from Germany; · The respondent's uncle is an alcoholic as is her mother; · The respondent engaged in extensive drug use; · The respondent once searched "big black dick" on the internet; · When pregnant, the respondent continued to smoke cigarettes and marijuana, refused to take vitamins he bought for her and did not eat properly; · The respondent communicated with her former partner and with a black guy about meeting for drinks; and · The respondent had a psychotic outbreak and has mental health issues. [63] With respect to the allegation that the respondent was high on LSD

and under the influence of LSD when she arrived at the Calgary airport from Germany, there is no evidence of this and I reject it. The allegation that the respondent suffers from a mental illness is also rejected. The evidence of the respondent was that she has never been diagnosed with a mental illness and there is no other evidence to the contrary. With respect to the use of cigarettes, marijuana and alcohol, the respondent admitted to smoking and using marijuana while pregnant but also testified that she no longer uses marijuana. I accept her evidence but would add that in any event, marijuana or alcohol use is not relevant given there is no evidence that the respondent has a drug or alcohol problem/addiction. Moreover, it is equally clear from the evidence that the claimant also uses alcohol and marijuana and has used other drugs. In fact, based on the evidence, the claimant appears to be a bigger user of alcohol, marijuana, and other drugs than the respondent. The fact that the respondent smokes cigarettes is not relevant. The balance of the allegations are either baseless or not relevant. [64] I find that the respondent is able to properly exercise the parental responsibilities of a guardian of A.E.

7. The impact of any family violence on A.E.'s safety, security or well-being, whether the family violence is directed toward her or another family member [65] There have been several incidents of physical violence that are either admitted or amply supported by the evidence. The most significant are: a) The June 23, 2017 incident where the respondent threw one or two rocks at the claimant from a distance; b) The June 5, 2018 incident where the respondent hit the claimant several times; and c) The June 18, 2018 incident where the respondent scratched the claimant and the claimant forcibly confined the respondent and threatened to kill her. [66] With respect to the June 23, 2017 incident, this was a relatively minor and childish incident. The claimant was clearly in no danger of being injured. The June 5 and 18, 2018 incidents are, however, of a different character, especially the June 18 incident. Both are serious incidents of assault. I find that the respondent assaulted the claimant on June 5 and 18, 2018. But, I also find that the claimant assaulted the respondent on June 18, 2018, and threatened to kill her, a very serious matter. [67] Notwithstanding that incidents of physical violence are serious matters, in the circumstances of this case they should not be given much weight as they did not have an impact on A.E. None of the physical violence was directed at A.E. and I

have no reason to believe that she is at risk of physical violence from either of the parties. It is also not clear that A.E. observed or heard any of the violence. Indeed, given her very young age when the incidents occurred, it is not likely she would have been aware what was occurring. Additionally, the physical violence occurred when the parties lived together and has not recurred since their separation. Given they are now separated, it is unlikely the physical violence will recur. Accordingly, in my view, the physical violence did not affect and is not likely in the future to affect the safety, security or well-being of A.E. [68] In addition to the incidents of physical violence, each of the parties submits that the other has committed acts of family violence consisting of psychological or emotional abuse. [69] The claimant submits that the respondent has been manipulative and abusive. He refers to her actions in threatening abortion, recording telephone calls, and taking videos or audio recordings during transitions. He also refers to her taking advantage of him financially. I reject the claimant's submissions that he was emotionally or psychologically or financially abused by the respondent. The respondent did not "threaten" abortion or use the possibility of abortion as a means of manipulating the claimant. She was understandably conflicted and confused at the early

stages of her pregnancy and her references to abortion were in the context of considering her options. She did send the claimant one text with a photograph of her stomach upon which she had written "Bye Daddie". This was mean-spirited but was not abusive. With respect to the respondent recording telephone conversations and taking videos of transitions, I do not consider this abusive or manipulative in the circumstances. She never tried to use the recordings to gain an advantage. I accept that she made the recordings because she was afraid. Finally, I find there is no evidence of financial abuse by the respondent. The fact that the respondent has not worked since coming to Canada does not amount to financial abuse. Moreover, the claimant encouraged the respondent to return to Canada from Germany in November 2017 knowing she was not likely to work. [70] Of more concern are the submissions of the respondent that the claimant's conduct has amounted to psychological or emotional abuse. I find that these submissions are well supported in the evidence and have addressed some of the incidents of abuse in my discussion of the Facts. The recorded telephone conversation between the parties is the most flagrant example of abuse. The recording shows that the claimant is extremely domineering towards to the respondent and repeatedly insults, berates and demeans her. The many text messages

between the parties are a further example. They have a Jekyll and Hyde character. The claimant will say all the right things when it suits him but then resorts to demeaning comments and threats when he does not get his way. The claimant's conduct in relation to breast feeding, bottle feeding, and other parenting issues are further examples of abuse and control issues. He seems unable to accept that there might be two different but equally legitimate opinions on whether a baby must be breast fed or how to properly bottle feed a baby or otherwise care for a baby. He expected the respondent to do things his way and, if or when she did not, he would berate and demean her. [71] I additionally note that the above examples of abuse were not isolated. The respondent testified that the claimant was constantly berating and humiliating her and that nothing she did was ever good enough for him. I accept her evidence in this regard and find that there has been a pattern of psychological and emotional abuse by the claimant against the respondent. [72] The respondent also submits that the claimant has been financially abusive. I agree. Notwithstanding that the claimant earns an income of almost $80,000 and, knowing that the respondent had no source of income and was having to live in an assisted living facility, he failed to pay interim support to the respondent until January 2019 when he

commenced paying child support of only $240 per month. As will be seen, the claimant should have been paying much more in both child and spousal support. Additionally, the claimant only offered to pay more in support if the respondent would agree to a relocation to Calgary. I find that the claimant's failure to pay adequate interim support and his offer to pay more in support if the respondent would agree to relocate to Calgary to further examples of domineering and controlling behaviour and, in the circumstances, amount to psychological and emotional abuse. [73] Unlike the incidents of physical violence, the psychological, emotional and financial abuse by the claimant have had a significant impact on A.E. It is because of this abuse that the respondent and A.E. had to flee the family home and seek out an emergency shelter. It is further as a result of this abuse that the respondent and A.E. have had to rely on the YWCA and other charities for the necessities of life. [74] I, therefore, find that there has been psychological, emotional, and financial abuse by the claimant and a pattern of coercive and controlling behaviour by the claimant directed at the respondent. Moreover, I find that this conduct has had a significant negative impact on the safety, security, and well-being of A.E.

8. Whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for A.E. and meet her needs [75] The acts of physical violence that have been outlined above are not, in my view, likely to impair the ability of either party to care for A.E. or meet her needs. Those acts of physical violence arose out of deep frustration and the deterioration of the parties' relationship. They are, in my view, not likely to be repeated now that the parties have separated. [76] I am less confident regarding the acts of emotional and psychological abuse committed by the claimant. In my view, the claimant's need to be in control and to have things done his way will impair his ability to care for A.E. and will impair his ability to ensure that all of her needs are properly met. His overarching need to have things done his way is in conflict with the best interests of A.E. His decision to pay $738 per month for child care on Thursdays and Fridays so he can have 50% parenting of A.E. is an example of this, and a point addressed in more detail below.

9. The appropriateness of an arrangement that would require A.E.'s guardians to cooperate on issues affecting her, including whether requiring cooperation would increase any risks to the safety, security or well-being of A.E. or other family members [77] The parties have shown that they are able to cooperate when it is necessary. There has been reasonable cooperation since the order of Master Keighley, with minimal conflict. However, given the claimant's controlling nature, I have serious doubts as to whether there would be full cooperation if A.E. was to reside primarily with him or if he was given final say on s. 41 decisions. I expect that in these circumstances, the wishes of the respondent would be dismissed by the claimant, which would be to the detriment of A.E. On the other hand, if A.E. was to reside primarily with the respondent and the respondent was to have the final say on s. 41 decisions, I expect that there would be dialogue and cooperation between the parties, which will be to the benefit of A.E.

10. Any civil or criminal proceeding relevant to A.E.'s safety, security or well-being [78] There are no criminal proceedings that are relevant to the safety, security or well-being of A.E.

11. Other matters of relevance [79] A further consideration relevant to parenting is the financial circumstances of the parties. Finances were a major concern for the claimant. In fact, one of the major reasons for the claimant wanting to move to Calgary is to improve his financial circumstances by reducing expenses. The claimant earns a reasonable annual income of $79,890 but the parties have no assets of any significant value and the claimant has debts in excess of $40,000, some of which go back many years. Notwithstanding that finances are a major concern, the claimant spends $738 per month on a nanny to look after A.E. on Thursdays and Fridays when he is working. Such an expenditure makes no sense when the respondent cannot work and could care for A.E. in place of the nanny. The best interests of A.E. would clearly be better served by having the respondent care for her on Thursdays and Fridays, which would eliminate the need to $738 per month to a nanny. However, the claimant refuses to acknowledge this. The fact that the claimant, who complains of his financial circumstances, would rather pay $738 per month to a nanny than have the respondent look after A.E. on Thursdays and Fridays leads me to infer that he is motivated by a desire to punish the respondent or to regain his dominant position, no matter the cost. B. Relocation Factors [80] As indicated above, pursuant to s.

69, the claimant must satisfy me: first, that the proposed relocation is in good faith (ss. 69(5)(a) and 69(4)(a)(i)), which involves a consideration of the reasons for the relocation (s. 69(6)(a)) and whether it will enhance the general quality of life of A.E. (s. 69(6)(b)); second, that there are reasonable and workable arrangements to preserve the relationship between the respondent and A.E. if relocation is granted (ss. 69(4)(a)(ii) and 69(5)(a)); and third, that the relocation is in the best interests of A.E. (s. 69(5)(b)).

1. Is the request for relocation made in good faith? [81] The respondent submits that the request by the claimant to relocate to Calgary is not made in good faith. She submits that the claimant has minimal ties with his family in Calgary, that he has spent little time in Calgary since attending school, and that the request to relocate is a continuation of his attempts to exert control over the respondent. The claimant, on the other hand, submits that the request to relocate is made for good reasons and is in the best interests of A.E. a) The reasons for the proposed relocation [82] The claimant puts forward various reasons for relocating to Calgary. In essence, the reasons are three: 1) that Vancouver is too expensive and a better standard of living can be had in Calgary; 2) that A.E. will have greater exposure to and the support of his family in Calgary; and 3) that relocating to Calgary will remove A.E. from the shelter and the state of limbo she is presently in. [83] With respect to the first reason, that a better standard of living can be had in Calgary, the claimant relies upon a spreadsheet that he has prepared comparing the cost of living in Calgary with the cost of living in Vancouver. He says he will save approximately $1,800 per month by relocating to Calgary. The savings are mostly from a reduction in rent of approximately $800 per month and the elimination of child

care costs. I am not satisfied that the savings the claimant expects will materialize. First, although rents in Vancouver are generally considered to be higher than many other Canadian cities, rents outside of the City of Vancouver are not necessarily so. There is no proper evidence before me that could lead me to conclude housing costs in Calgary will be substantially lower. Second, I am not at all satisfied that child care costs will be eliminated if the relocation to Calgary is permitted. The claimant assumes that his mother will look after A.E. in Calgary, however, this is not a realistic assumption. The claimant's mother testified at the trial but was never asked if she would care for A.E. on a daily basis. In fact, as she has a part-time job, she would be unable to do so. Additionally, she is in poor health and admitted in cross-examination that A.E. needs more care than she can give. Finally, her partner also has medical issues and the evidence before me is that he suffers from alcoholism. Accordingly, I am far from satisfied that the claimant will save $1,800 per month by moving to Calgary. There may be some savings in rent but not nearly what the claimant is expecting and, there is likely to be a need for more child care in Calgary, not less. [84] The second reason offered for moving to Calgary is that A.E. will have greater exposure to and the support of the

claimant's family. This is a valid reason, although, in my view, the claimant has overstated the extent of his connection to Calgary and to his family there. The claimant has spent minimal time in Calgary since attending the University of British Columbia and, with the exception of an apparently close relationship with his mother, he does not appear to have a particularly close connection to other family members. Nevertheless, I am prepared to accept that a move to Calgary could be beneficial to A.E. in that she will have a better opportunity to develop relationships with the claimant's family there. [85] The third reason offered for the relocation is that it will relieve A.E. from having to live in a woman's shelter. I give this reason absolutely no weight. There is no reliable evidence before me that suggests in any way that the YWCA facility in which the respondent and A.E. have been forced to reside is detrimental or harmful to A.E. or different in any way from a normal one bedroom apartment. To the contrary, the evidence has been that the facility provides a more than adequate apartment, access to knowledgeable staff, and access to multiple beneficial programs. Also, the respondent and A.E. have been forced to reside in the YWCA facility because the claimant has not paid adequate support. The claimant is not entitled to take advantage of this. [86] Thus, of the reasons

given for the relocation to Calgary, I accept only that relocation will enhance the building of relationships between A.E. and the claimant's family. I do not accept the other reasons advanced by the claimant. [87] Before leaving the reasons for the proposed relocation to Calgary, it is important to note and emphasize that the claimant's continued employment is not contingent on him relocating and his salary will not increase if he moves to Calgary. The relocation to Calgary is entirely for his own personal reasons. b) Whether the proposed relocation is likely to enhance the general quality of life of A.E. and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities [88] Although I am satisfied that a relocation to Calgary will enhance the building of relationships between A.E. and the claimant's family, I am not satisfied that a relocation will enhance the general quality of life of A.E. In fact, I have serious concerns that a relocation will diminish the quality of life of A.E. due to the effects such a relocation will have on the respondent. These issues are addressed more fully below but, in summary, a relocation to Calgary will seriously undermine the relationship between the respondent and A.E., which is not in the best interests of A.E. [89] I am also not satisfied that relocating to Calgary will

increase the emotional well-being or financial opportunities of the claimant. His income will not increase as a consequence of moving to Calgary and, as I have indicated above, it is not clear to me that his expenses will decrease if relocation is permitted. Additionally, there is no basis in the evidence to conclude that such a move will improve his emotional well-being. I am not satisfied that he has a strong attachment to Calgary. He left Calgary to attend UBC and did not return except for short periods of time. He has few connections with Calgary except for his family, primarily his mother.

2. Has the relocating guardian proposed reasonable and workable arrangements to preserve the relationship between A.E. and her other guardians? [90] The onus is on the claimant to satisfy me that he has proposed reasonable and workable arrangements to preserve the relationship between A.E. and the respondent if the relocation is permitted. The claimant's proposal for preserving that relationship is as follows: · Continued use of Google photos; · Regular FaceTime and Skype access; · Flying A.E. to Vancouver (or Germany) regularly to have parenting time with the respondent, the expenses of which he will pay up to $2,500 per annum; · The respondent is to have regular parenting time in Calgary, provided she gives two weeks prior notice; and · Regular communication between him and the respondent regarding A.E. [91] In my view, the use of FaceTime and Google photos is no substitute for contact, especially when it involves a very young child such as A.E. Similarly, regular communication between the claimant and the respondent regarding A.E. is no substitute for contact. [92] The proposal that A.E., an infant of less than two years old, could be flown to Vancouver on a regular basis to have parenting time with A.E. is ludicrous. The suggestion that she could fly to Germany is even more so. A.E. would need to be accompanied by an adult when flying until she is at least five years of

age. This means that at least two, and more likely three, return tickets would have to be purchased for every visit. If finances were not an issue, this might be a marginally workable solution but, finances are very much an issue for the parties. Neither party has significant assets or income. The respondent, being unable to legally work, has no sources of income. The claimant's financial statement discloses that his current expenses exceed his income and that he has debts in excess of $40,000, some of which go back to 2005. The parties simply cannot afford the expense of flying A.E. back and forth to Vancouver on a regular basis, let alone to Germany. [93] The suggestion that A.E. could fly to Calgary on a regular basis to have parenting time with A.E. is also fanciful. To do this, A.V.S. would need to be able to pay for airfare and for lodgings while in Calgary but she has no income to pay for either. [94] I conclude that the claimant's proposal is completely inadequate and unworkable in the circumstances. In my view, the likely result of an order permitting A.E. to be relocated to Calgary will be that A.E. and the respondent have very little time together, regardless of what orders are made by me. The simple fact is that the parties cannot financially afford a long distance relationship. An order permitting relocation would significantly undermine the parental relationship

between the respondent and A.E., which would be devastating to both of them. [95] I would also add that it is not reasonable or feasible for the respondent to move to Calgary. At present, and largely due to the failure of the claimant to pay adequate child or spousal support, the respondent must rely upon the YWCA and the Greater Vancouver social services network for the fundamentals of life. Calgary undoubtedly has such services but there is no reliable evidence before me of what those services are or whether the respondent would qualify for them. She cannot be expected to move to Calgary where she might end up homeless.

3. Is relocation in the best interests of A.E.? [96] It follows that, in my view, relocation to Calgary is not in the best interests of A.E. Although the relocation would mean that A.E. has increased exposure to the claimant's family and might lead to a moderate decrease in the claimant's monthly expenses, the effect of such a relocation would be to very significantly erode the parental relationship between the respondent and A.E. C. Conclusions on Parenting and Relocation [97] Considering all of the above factors, I find that the best interests of A.E. will be served by having A.E. reside primarily with the respondent and the claimant having parenting time on weekends and holidays, such that there is roughly a 70/30 split in parenting time with the respondent having the larger percentage. [98] In respect of the division of the responsibilities under s. 41 of the FLA, it is my opinion that it is in the best interests of A.E. that the respondent should have the right to decide all of matters coming within s.

41. However, significant decisions should be discussed between the parties and only if they cannot reach an agreement should the respondent exercise her right of decision. The only exception to this is in respect of a permanent relocation of A.E. to a place outside the Lower Mainland or Vancouver Island. Such a relocation is only to occur with the consent of both parties or an order of the Court. [99] The parties did not make submissions on a precise parenting schedule but, in my view, an appropriate schedule is one that gives the claimant parenting time three weekends per month and, until A.E. attends school, during his work holidays. The parenting time during work holidays is to be subject to a maximum of 7 consecutive days and 14 days per year in total. Once A.E. attends school, the school holidays (summer, winter/Christmas and spring break) are to be split equally between the parties. [100] A significant factor leading to my orders in respect of parenting arrangements is that the conduct of the claimant towards the respondent has been psychologically, emotionally and financially abusive, and domineering and controlling. Such conduct has significantly adversely affected A.E. and would continue to adversely affect her if she had primary residence with the claimant or if the claimant had the final say in respect of s. 41 matters. Additionally, the parenting arrangements I have

ordered take into account the financial circumstances of the parties and take advantage of the fact that the respondent is not working and can look after A.E. on weekdays without anyone having to incur unnecessary child care costs. [101] Finally, it follows that A.E. is not to be relocated to Calgary. V. Child Support [102] Child support is governed by Part 7 of the FLA. Section 147(1) provides that every parent has a duty to pay child support. [103] The respondent submits that the claimant should be required to pay child support based upon his Federal Child Support Guidelines [Guidelines] income of $79,890. The claimant does not seriously dispute that he is required to pay child support. However, he submits that I should impute an income to the respondent, a point which I will address first before considering the child support payable. A. Imputation of Income [104] The claimant submits that I should impute an income to the respondent on the grounds that: the initial arrangement between the parties was that they would share expenses equally; the respondent receives income that she has not disclosed; and, the inability of the respondent to legally work is due to her own negligence. [105] Concerning the submission that income should be imputed to the respondent because the initial arrangement was to equally share expenses, this is not relevant to whether income should be imputed

to the respondent. In any event, the evidence falls far short of establishing an agreement, arrangement, or even an understanding between the parties that they would share expenses. Rather, the parties entered into their marriage-like relationship in the "fog" of love and did not discuss such mundane things as finances. Although the claimant may well have expected the respondent to equally share expenses, there was no such mutual understanding. [106] The claimant next submits income should be imputed to the respondent because she is earning income that is not disclosed. He points to the fact that the respondent has a German credit card with a €5,000 limit as somehow supporting an inference that she is earning income. He also points to her bank records as evidence that she is receiving an income. However, I accept the evidence of the respondent that she is not employed and earns no income. The fact that she has a credit card with a moderate limit is not evidence she is earning income. The respondent also explained that the various small deposits into her bank accounts were gifts from family members. [107] The claimant finally submits that income should be imputed to the respondent because she failed to seek employment between April 2017 and April 2018 when she had a work visa and was negligent in failing to renew her work visa when it expired in April 2018. I agree with the

claimant that the respondent has been less than diligent in obtaining a work permit and in seeking employment when she had a work permit. In fact, the respondent admits that she made only minimal efforts to find employment when she had a work visa from April 2017 to April 2018. She further admits that she made no efforts to obtain another work visa when it expired. However, it does not follow that this a sufficient basis for imputing an income to the respondent. This is so for two reasons. [108] First, it is far from clear that the respondent would have obtained a visa renewal in April 2018 if she had applied for one. Her visa was issued under the International Experience Canada Program and expressly provided that it could not be renewed. [109] Second, imputation of income is governed by s. 19 of the Guidelines, s. 19(a) of which requires that the spouse be intentionally unemployed: 19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; [110] In my opinion, it cannot presently be said that the respondent is

intentionally unemployed. Being intentionally unemployed implies that one has both the right and the ability to work. However, at the present time, it is clear on the evidence that the respondent is not legally entitled to work. If she is not able to legally work, it cannot be said that she is intentionally unemployed. [111] Accordingly, in my opinion, there is currently no basis for imputing an income to the respondent. B. Child Support Calculation [112] It follows that I find that the Guidelines income of the respondent is $0. The Guidelines income of the claimant for support purposes is $79,890, the amount set out at line 150 of his 2018 tax return. These incomes translate to a child support payment by the claimant to the respondent of $764 per month. I order that this amount be paid by the claimant on the first of each month commencing on January 1, 2020. VI. Spousal Support [113] Spousal support is governed by ss. 160-165 of the FLA. [114] Section 160 of the FLA provides that if, after considering the objectives of spousal support set out in s. 161, a spouse is entitled to spousal support, the other spouse has a duty to provide such support. The objectives of spousal support as set out at s. 161 are as follows: 161 In determining entitlement to spousal support, the parties to an agreement or the court must consider the following objectives: (a) to recognize any economic

advantages or disadvantages to the spouses arising from the relationship between the spouses or the breakdown of that relationship; (b) to apportion between the spouses any financial consequences arising from the care of their child, beyond the duty to provide support for the child; (c) to relieve any economic hardship of the spouses arising from the breakdown of the relationship between the spouses; (d) as far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time. [115] Section 162 of the FLA provides that the amount and duration of spousal support must be determined on consideration of the conditions, means, needs, and other circumstances of each spouse including the length of time they lived together and the functions performed by each spouse during that time. [116] The case law has established three grounds for entitlement to spousal support: compensatory, non-compensatory, and contractual. Both compensatory and non-compensatory grounds are at issue here. Compensatory spousal support is grounded in providing redress to a spouse for the economic disadvantages arising from the marriage or marriage-like relationship. Non-compensatory spousal support, or needs based support, is grounded in the obligation of a spouse, not the state, to meet the needs of the disadvantaged spouse. [117] The claimant submits that no spousal

support should be payable. He submits that the respondent did little in terms of household management while they lived together and was not required to remove herself from the work force due to their relationship. He further submits that the respondent had more cash at the commencement of their relationship than he did. [118] The respondent submits that spousal support is warranted in the circumstances of this case on both a compensatory basis and non-compensatory basis. [119] I agree that the respondent is entitled to spousal support on both compensatory and non-compensatory grounds. With respect to compensatory spousal support, the respondent has been economically disadvantaged as a direct result of the relationship between the parties. She initially came to Canada at the urging of the claimant. She returned to Germany in 2017 when difficulties began in their relationship but then discovered she was pregnant with A.E. She contemplated an abortion but instead decided, again at the urging of the claimant, to return to Canada, have the baby, and resume the relationship with the claimant. When the respondent returned to Canada in November 2017, at the claimant's urging, he was aware that her work visa would expire in April 2018. He was further aware of her pregnancy and knew, or ought to have known that, in addition to not having a work visa, her ability to work would be

compromised by the pregnancy and by having a new infant after she gave birth. In these circumstances, the inability of the respondent to work is due to the relationship between the parties, is an economic disadvantage to her, and entitles her to spousal support on a compensatory basis. [120] The respondent is also entitled to support on a non-compensatory basis. She has no income, as she is not entitled to legally work, and she has virtually no savings. She cannot return to Germany without leaving her child behind. She receives some gifts of cash, from time to time, from family members in Germany but essentially lives off of the charity of the YWCA, food banks, and other Canadians. Put simply, she is in dire need whereas the claimant earns a reasonable income of approximately $80,000 per year. [121] I therefore have no hesitation in holding that the claimant must pay spousal support in the circumstances of this case. The alternatives are impractical and unjust. Those alternatives are: to force the respondent to work illegally, something which this Court obviously cannot do; to force the respondent to abandon her daughter and return to Germany, something which this Court will not do; or, to force the respondent to continue to live off of the generosity of the YWCA and other Canadians, something which this Court should not do when the spouse is capable of paying support. [122]

Accordingly, I find that the respondent is entitled to spousal support from the claimant. However, a further objective of the spousal support regime is to foster the economic self-sufficiency of each spouse within a reasonable time. The parties' relationship was of a short duration and, except for the fact that the respondent does not have a work visa, she is capable of working. These are circumstances that dictate that spousal support be of limited duration. More specifically, in the circumstances, it is appropriate that spousal support be limited to four years, the minimum period under the Spousal Support Advisory Guidelines [SSAG]. [123] Moreover, it is also appropriate that the spousal support be reviewable under s. 168 of the FLA. The respondent has been less than diligent in applying for visas to permit her to work. This cannot be permitted to continue as she has an obligation to work to support herself and her child. It is expected that she will diligently pursue her application for immigration status and that she will immediately seek employment when she is legally permitted to work. I order that the spousal support will be reviewable under s. 168 of the FLA in one year's time or upon the respondent obtaining legal authorization to work in Canada. [124] The application of the SSAG formula gives a range of possible spousal support payments from a low of $1,467 to a high

of $1,841. The mid-range spousal support under the SSAG is $1,653. In my view, the mid-range amount is appropriate in the circumstances. Such an amount will permit the respondent to be self-sufficient, rather than having to rely on the charity of the YWCA and others, and it will roughly equalize the net disposable incomes of the parties. VII. Disposition [125] I make the following orders pursuant to the provisions of the FLA: a) The parties are appointed the joint guardians of A.E. under s. 51(1)(a) of the FLA. b) The parties will share the s. 41 parental responsibilities for A.E. under s. 40(2) of the FLA, as follows: i) In the event of the death of a guardian, the surviving guardian will be the only guardian of A.E.; ii) Each guardian will have the obligation to advise the other guardian of any matters of a significant nature affecting A.E.; iii) Each guardian will have the obligation to discuss with the other guardians any significant decisions that have to be made concerning A.E., including significant decisions about her health (except emergency decisions), education, religious instruction and general welfare; iv) The guardians will have the obligation to try to reach agreement on significant decisions; and v) In the event that the guardians cannot reach agreement on a significant decision despite their best efforts, the respondent will be entitled to make those

decisions. c) Unless otherwise agreed by the parties A.E. will reside primarily with the respondent and the claimant will have parenting time as follows: i) Three weekends per month from 5 p.m. on Fridays until 7 p.m. on Sunday and, if the day preceding or following is a statutory holiday or professional development day, the claimant's parenting time will include that extra day; ii) December 24 from 12 noon until December 26 at 12 noon of every other year; iii) Until such time as A.E. is enrolled in school, during the claimant's work holidays subject to a maximum of 7 consecutive days and 14 days per year in total; and iv) Once the A.E. is enrolled in school, the parties will equally share parenting time during school summer, winter, and spring break holidays on a schedule to be agreed; d) Either party will have reasonable telephone or electronic communication with A.E. while she is in the care of the other party. e) The claimant is found to be a resident of British Columbia and is found to have an annual income for the purposes of the Guidelines and the SSAG of $79,890. f) The respondent is found to be a resident of British Columbia and is found to have an income for support purposes of $0. g) The claimant will pay to the respondent, the sum of $764 per month for the support of A.E., commencing on January 1, 2020 and continuing on the 1st day of each and every month

thereafter, for as long as the child is eligible for support under the FLA or until further agreement of the parties or Court order. h) The claimant will pay to the respondent, the full amount of any special or extraordinary expenses of A.E. i) The claimant will pay to the respondent for her support, the sum of $1,653 per month commencing on January 1, 2020 and continuing on the 1st day of each and every month thereafter for four years, the last payment being December 1, 2023. j) The amount of spousal support is subject to review under s. 168 of the FLA in one year's time or upon the respondent obtaining legal authorization to work in Canada. [126] The parties have leave to speak to me concerning the costs of this action. "Giaschi J."