L.S. v. G.S.

2014 BCCA 334 L.S. v. G.S.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: L.S. v. G.S., 2014 BCCA 334 Date: 20140825 Dockets: CA041472; CA041638 Between: L.S. Respondent (Claimant) And G.S. Appellant (Respondent) Before: The Honourable Chief Justice Bauman The Honourable Madam Justice D. Smith The Honourable Madam Justice MacKenzie On appeal from: Orders of the Supreme Court of British Columbia, dated December 23, 2013 (L.S. v. G.S., 2013 BCSC 2465, Vancouver Docket E103335) and February 5, 2014 (L.S. v. G.S., 2014 BCSC 187, Vancouver Docket E103335). The Appellant appearing on his own behalf: G.S. Counsel for the Respondent: B. J. Ingram Place and Date of Hearing: Vancouver, British Columbia June 16, 2014 Place and Date of Judgment: Vancouver, British Columbia August 25, 2014 Written Reasons by: The Honourable Madam Justice MacKenzie Concurred in by: The Honourable Chief Justice Bauman The Honourable Madam Justice D. Smith Summary: In 2011, a trial judge made an order for divorce and permitted the respondent mother to move the children with her to Israel. In April 2012, this Court allowed the appellant father's appeal, set aside the mobility order made at trial, and ordered the children be returned to Vancouver. This Court also ordered joint custody with primary residence to the appellant and access to the respondent in Vancouver on a shared parenting basis, all under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and joint guardianship under the Family Relations Act, R.S.B.C. 1996, c.

128. The appellant and children returned to Vancouver, and the respondent followed. The Supreme Court of British Columbia then varied the respondent's access to order access on an "equal parenting" basis on a seven-day rotation. When the respondent had an episode of her bipolar disorder, a judge made an "interim" order that replaced the respondent's access with supervised access. When the respondent recovered, another judge varied the "interim" order and reinstated access on a three-day rotation between the parties, with conditions for the respondent. The appellant appealed. A month later, the appellant brought various applications under the Family Law Act, S.B.C. 2011, c. 25, based on the respondent's failure to return the children to Vancouver in accordance with this Court's April 2012 order. The judge dismissed the applications. The appellant also appealed from that order. The two appeals were heard together. Held: As to the first appeal, the judge correctly narrowed the issue before him to whether there had been a material change in circumstances since the respondent's admission to hospital in light of her recovery and unconditional release from hospital. It was open to the judge to find the respondent's recovery constituted a material change in circumstances since her admission to hospital, and to reinstate access on an equal parenting basis, on conditions. As to the

second appeal, this case was not commenced, litigated, or concluded under the Family Law Act. This Court's discretion to address new issues not previously raised is generally exercised sparingly and only where the interests of justice require it. It is not in the interests of justice for this Court to engage in the exercise of statutory interpretation required to resolve issues of jurisdiction not argued before the trial court. Appeals dismissed. Reasons for Judgment of the Honourable Madam Justice MacKenzie: Introduction [1] The parties have been divorced since 2011. The father ("G.S.") appeals from two orders made in protracted litigation over the parenting arrangements for two of the parties' three children that initially arose over a mobility issue. [2] The orders under appeal were made after this Court's order, set out in reasons indexed as 2012 BCCA 154 (the "Appeal Order"), allowing the appeal from the order at trial that permitted the mother ("L.S.") to move to Israel with the children. This Court set aside that order and replaced it with an order effective April 5, 2012, awarding the parties joint custody of the children with their primary residence to be with G.S. in Vancouver, providing L.S. access to the children in Vancouver on a shared parenting basis under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and awarding joint guardianship under the Family Relations Act, R.S.B.C. 1996, c.

128. Following the Appeal Order, L.S. chose to return to Vancouver. The conflict since has centred on her access to two (twins) of the couple's children. [3] Mr. Justice Schultes made the first order under appeal (CA041472) on December 23, 2013, for reasons indexed as 2013 BCSC 2465. His order provided for a three-day rotation of equal access with certain conditions for L.S. This order varied the "interim" order of Mr. Justice N. Smith of October 30, 2013 (which extended his interim order of October 22, 2013) that replaced L.S.'s access on a shared parenting basis with supervised access because of her hospitalization for a manic episode of her bipolar disorder. [4] Mr. Justice Schultes found L.S.'s recovery from the manic episode constituted a material change in circumstances under s. 17(5) of the Divorce Act. He therefore varied the "interim" order and replaced it with a three-day rotation between the parties. [5] G.S. appeals the order of Schultes J. on the basis of alleged errors in admitting certain evidence, and in the finding of a material change in circumstances. [6] In the second order under appeal (CA041638), N. Smith J. dismissed a number of applications made by G.S., for reasons indexed as 2014 BCSC 187. G.S. had applied under the Family Law Act, S.B.C. 2011, c. 25 (the "FLA") for declarations that L.S.'s "Wrongful Retention of the Children in Israel between June 30,

2012 and November 7, 2012" constituted "Parenting Time Denial" and amounted to "family violence". G.S. also appeals from Mr. Justice N. Smith's dismissal of his application for an order that L.S. be found in contempt of court for failing to comply with the costs award in the Appeal Order. [7] For the reasons that follow, I would dismiss both appeals. Background and Litigation History [8] I will recite enough background to give context to these appeals. Various judgments in this case provide more detail, including the decision cited above that resulted in the Appeal Order, and the reasons of N. Smith J., indexed as 2013 BCSC 1725, on G.S.'s earlier contempt application. [9] The parties married in Israel in 1995, and moved to Vancouver in 2002. They became Canadian citizens in 2005. The parties have three children. The two younger children at the centre of these appeals were born in Canada. Any reference to the "children" in these reasons refers to them. [10] Shortly after August 2005, the parties separated. They continued to live in the family home, sharing parenting of the children until they moved to Israel as described below. L.S. began suffering from bipolar disorder after the children were born and has experienced the occasional manic episode of this disorder. [11] On October 19, 2010, L.S. filed a notice of family claim in Vancouver (E103335) for relief under the Divorce

Act and the Family Relations Act that included a divorce, interim joint custody and joint guardianship of, and joint access to, the children. Significantly, she also sought permission to move with the children to Israel with generous access to G.S. [12] G.S. filed a counterclaim opposing the move. He also sought joint custody, joint guardianship and notably, a "shared parenting arrangement (a 50/50 arrangement)" as an alternative to increased parenting time. [13] On March 5, 2010, Mr. Justice Cullen (as he then was) had granted a consent order in a separate proceeding (E100601) which included declarations that the children are habitually resident in British Columbia for the purposes of the Family Relations Act and the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can. T.S. 1983 No. 35 (entered into force 1 December 1983) [Hague Convention]. He also ordered neither party was to initiate legal proceedings outside British Columbia relating to the children, but either party could seek an order in British Columbia to move the children. [14] Conflict over parenting the children has resulted in various orders. I will briefly describe those of most significance to both appeals. I also observe it would be helpful if, when pronounced and drafted, the orders clearly stated both the legislation and section under which the order was made. It would

reduce uncertainty as to intent and jurisdiction. Moreover, the prescribed forms for orders under the Supreme Court Family Rules require the provisions of an order relating to custody and parenting arrangements to specify whether they are made under the Divorce Act or the (former) Family Relations Act or the FLA. This practice would avoid confusion, especially in a case such as this where applications were made under all three Acts. The Trial Order [15] On June 17, 2011, after a 10-day hearing, the trial judge made an order for divorce which was to take effect on July 18, 2011. On August 5, 2011, the trial judge made a final order, having issued subsequent reasons (5 August 2011), Vancouver E103335 (B.C.S.C.) ("Trial Order RFJ"), whereby L.S. was permitted to move with the children to Israel "as soon as is practicable". The Court also ordered joint custody and joint guardianship of the children "according to the Joyce model accommodated to reflect the parties living in different countries" and designated L.S.'s residence as the children's primary residence (para. 78). On August 23, 2011, L.S. and the children left for Israel accompanied by G.S. Appeal from the Trial Order [16] On April 5, 2012, the Appeal Order allowed G.S.'s appeal from the order made at trial, set it aside, and ordered: a. The Parties shall have joint custody and joint guardianship, for the three children of

the marriage, with primary residence to be with [G.S.] in Vancouver. b. [G.S.] is entitled to move with the children to Vancouver on June 30, 2012, or as soon thereafter as flight arrangements can be made; c. [L.S.] shall have access to the children in Vancouver on a shared parenting basis, and her access shall include one month each summer, as well as two weeks during the holidays in December; and one week during the children's spring break. [L.S.]'s access in the summer of 2012 shall be exercised in Vancouver. d. [L.S.] shall be entitled to regular contact with the children by telephone and any electronic means. e. If [L.S.] visits Vancouver, she shall have shared access to the children during her stay, upon providing advance written notice to [G.S.] of the dates and times she proposes to exercise access. f. [G.S. and L.S.] may agree to further periods of access. g. [L.S.] shall pay the costs of the trial and the appeal, but excluding the costs of the stay application, which was not appealed. [17] This Court recognized that before L.S.'s move to Israel with the children, the parties had established and maintained a shared parenting regime, even in difficult times, found by the trial judge to be an "equal parenting regime" (Appeal Order RFJ): [1] This appeal is from an order in what is characterized in family law as a "mobility" case. It arises in the context of an equal

parenting regime where the parents shared de facto joint custody and joint guardianship of the three children of the marriage. * * * [3] [G.S.] also seeks an order for joint custody and joint guardianship with an equal parenting regime, to the extent that is possible. * * * [7] they established a routine whereby both parents continued to live in the marital home, share the parenting of the children, and arranged their lives so that each could spend separate time with the children. [G.S.] referred to this as a "nesting" arrangement. Although the parties never obtained an order formalizing this arrangement, it is not contested that they were effectively sharing joint custody, joint guardianship and equal parenting of the children. This arrangement continued until the order under appeal was made in August 2011 and the parties departed for Israel. * * * [19] The trial judge then turned to the existing parenting arrangement revealed by the evidence. After observing that the parties had employed a nanny to help care for the twins over the period of 2005-2007, the trial judge found that the parents had established an equal parenting regime. [Trial Order RFJ at para. 22] * * * [128] the children have very close relationships with both of their parents, who were able to maintain a shared parenting regime even in very difficult times. ... [18] On September 6, 2012, the Supreme Court of Canada dismissed L.S.'s application for leave to appeal the Appeal Order: [2012] S.C.C.A. No.

230. Initial Proceedings in Israel [19] In Israel, G.S. sought to have the Appeal Order enforced in the Israeli Family Court. L.S. applied for summary dismissal of those proceedings and although her application was dismissed on June 20, 2012, she obtained interim restraining orders prohibiting the children leaving Israel. L.S. then commenced divorce proceedings on June 24, 2012 in the Regional Rabbinical Court of Tel Aviv-Jaffa and obtained an interim order prohibiting G.S. from leaving Israel. [20] On September 12, 2012, the Family Court in Jerusalem ordered the return of the children to Canada and declared that not doing so was a "wrongful retention" within the meaning of Article 3 of the Hague Convention. It also held the Canadian courts were to have exclusive jurisdiction of all matters pertaining and related to custody of the children in accordance with the order of Cullen J. that the children are habitually resident in British Columbia. [21] On October 21, 2012, L.S.'s application to the Jerusalem District Appeal Court was dismissed. She obtained a stay of that order pending appeal and, on October 28, 2012, filed an application for leave to appeal to the Supreme Court of Israel. The Supreme Court of Israel granted leave but dismissed L.S.'s application on its merits: John Doe v. Jane Doe (28 July 2013) Israel 7784/12 (lsr. S.C.). Return to Canada [22] On November 7, 2012,

G.S. and the children returned to Canada. L.S. returned to Canada one week later, having decided not to stay in Israel. [23] Upon returning to Canada, L.S. applied in the Supreme Court of British Columbia for restoration of the parenting regime under the Appeal Order, or alternatively, for "directions regarding shared parenting". [24] On November 21, 2012, Mr. Justice Abrioux adjourned her application to December 6, 2012, but made orders that included an "interim order" that the joint custody be carried out on a two-night rotation (the "Abrioux Order"). [25] The Abrioux Order was in effect an interim variation of the Appeal Order that appears to have been based on L.S.'s permanent return to Vancouver as being a material change in circumstances (again, under s. 17(5) of the Divorce Act). There are no transcribed reasons for judgment, but the judge appears to have interpreted the Appeal Order as contemplating that L.S. would remain in Israel with access to the children when she visited Vancouver. [26] On November 28, 2012, G.S. filed an application for various orders with respect to jurisdiction, the proceedings in Israel and joint guardianship, also to be heard December 6, 2012. [27] The December 6 hearing of both applications was adjourned by consent to December 12, 2012. The Abrioux Order was then extended by consent, however, because of time constraints. [28] On January 30,

2013, L.S.'s application went before Madam Justice Adair, with the cross-application by G.S. who opposed any provision that would give L.S. the right to make decisions and who sought, in part, an order "setting out the terms of the joint guardianship": (30 January 2013), Vancouver E103335 (B.C.S.C.) at para. 8. [29] Madam Justice Adair adjourned the applications generally, given uncertainties arising from the outstanding litigation in Israel, and maintained the existing two-night rotation of the Abrioux Order. Variation of the Appeal Order [30] On April 11, 2013, Mr. Justice Burnyeat heard G.S.'s application, filed March 27, 2013, to vary the Abrioux Order to restore the terms of the Appeal Order, or alternatively, for "directions regarding parenting arrangements". In his oral reasons for judgment, L.S. v. G.S. (11 April 2013), Vancouver E103335 (B.C.S.C.), Burnyeat J. said: [2] I start by saying that this Court is not in a position to vary a court order made by the Court of Appeal. However, I am satisfied that the Court of Appeal order gives sufficient leeway for me to deal with what I believe is in the best interests of all three children. Despite the above comments, I observe that Burnyeat J. had the authority under s. 17(1) of the Divorce Act to vary the Appeal Order. The Supreme Court of British Columbia is "a court of competent jurisdiction" within s. 17(1). Additionally,

the Appeal Order was made under the authority of s. 9(1)(a) of the Court of Appeal Act, R.S.B.C. 1996, c. 77, to "make or give any order that could have been made or given by the court appealed from". [31] Mr. Justice Burnyeat varied the Appeal Order and replaced it with a new final order, saying this: [5] From that, it is clear that the order that was made by the Court of Appeal was based on the assumption that L.S. would be not residing in Vancouver. Rather, she would be residing elsewhere (probably Israel), and that access was set based on that assumption. Additionally, the order does not say anything other than that the access would be on a shared parenting basis. Shared parenting basis indicates to me an equal sharing. [Emphasis added.] [32] Mr. Justice Burnyeat also referred (at para. 19) to the parenting "schedule" in the Appeal Order as being based on L.S. residing in Israel. He proceeded on the basis that her permanent return to Vancouver was a material change in circumstances (as did Abrioux J. in making his "interim" variation order), and ordered the children spend alternating weeks with each parent on a "50/50 split" and equal time at holidays (at paras. 17-19). [33] Although the Appeal Order gave L.S. access "on a shared parenting basis", which can be any proportion of time between the parents, Burnyeat J. interpreted it to mean "equal" parenting time. I find this

interpretation reasonable in light of the several references in this Court's reasons for judgment to the parties' history of equal parenting (quoted above) and the terms of the Appeal Order itself which was effectively equal parenting time when L.S. was in Vancouver. Mr. Justice Burnyeat said no rationale was given for a "60/40 split throughout the year" as sought by G.S. [34] Thus, on April 11, 2013, Burnyeat J. varied the Appeal Order. His order provided for access on an equal parenting basis on a weekly rotation. It was the final order in effect when the orders under appeal were made. Contempt Application [35] G.S. subsequently applied for an order that L.S. be found in contempt of court for failing to return the children to Vancouver. Mr. Justice N. Smith heard the application on July 30, 2013, clarified the order that the children were not to be removed from the jurisdiction without further order of the court, and reserved judgment on the contempt application until he could see a translation of the recent decision of the Supreme Court of Israel. He seized himself of further applications by the parties, as his schedule permitted: (30 July 2013), Vancouver E100601 (B.C.S.C.). [36] On September 19, 2013, N. Smith J. held L.S. to be in contempt of the Appeal Order from June 30, 2012, when the children were to be returned to Vancouver, to November 7, 2012, when they were in

fact returned: G.S. v. L.S., 2013 BCSC 1725. He also found L.S.'s actions before the Israeli courts put her in contempt of the March 2010 consent order of Cullen J. that established British Columbia as the habitual residence of the children (at paras. 25‑27). [37] Mr. Justice N. Smith ordered that L.S. could purge her contempt by filing with the court a written undertaking that included not initiating any further appeals or proceedings outside British Columbia regarding the children, undertaking that there were no such proceedings extant, and surrendering to G.S. any Canadian and Israeli passports in the names of the children (at para. 33). The judge also ordered L.S. to pay special costs to G.S. (at para. 34). "Interim Order" for Supervised Access [38] L.S. experienced a manic episode of her bipolar disorder on October 18, 2013 that resulted in her hospitalization. [39] On October 22, 2013, on G.S.'s application, N. Smith J. made an "interim order" that varied L.S.'s access to the children under Burnyeat J.'s order, and replaced it with supervised access. [40] On October 30, 2013, N. Smith J. extended his supervised access order until further order of the court. The "Schultes Order" (CA041472): Variation of the Supervised Access Order [41] In early December 2013, L.S. applied to vary the supervised access order to restore the "equal parenting" order of Burnyeat J. G.S. in turn

sought various "declarations", including that L.S.'s "mental disorder may present substantial risk" to the children, and that her "incompliance with medical instructions" put the children at risk. [42] G.S. sought these declarations in pursuit of various orders. Notably, G.S. applied for the "annulment" of Burnyeat J.'s order for "equal parenting" time and its variations to the Appeal Order. He applied for "amendments" to the Appeal Order to restrict L.S.'s access to the children to alternate weeks of supervised daytime access with return of the children to G.S. every evening at 7 p.m., as well as conditions related to compliance with and monitoring of medical treatment. [43] On December 23, 2013, Schultes J. granted L.S.'s application and ordered the parties exercise "parenting time" with the children in alternating 72 hour periods: (the "Schultes Order"). Although N. Smith J. had seized himself of "further applications between these parties" to the extent he was available, Schultes J. noted: [6] Smith J. is scheduled to hear a number of additional applications in January, but because he is not available until then, L.S.'s counsel obtained leave from him to bring an application in front of another judge to increase L.S.'s parenting time, if her condition continued to improve before those January hearing dates. That is the application that I have been hearing. Mr. Justice

Schultes therefore adjourned G.S.'s applications to January 2014, as already scheduled before N. Smith J. The "Smith Order" (CA041638): Family Law Act applications [44] On January 22, 2014, as scheduled, N. Smith J. heard applications by G.S., including some described above that had been adjourned by Schultes J. Certain applications were based on the same conduct for which L.S. had already been found in contempt of court. Specifically, G.S. sought damages under s. 61 of the FLA for expenses incurred as a result of a "denial of parenting time" and a declaration that L.S.'s conduct constituted "family violence" under the FLA. He also applied for another finding of contempt, based on L.S.'s failure to pay the costs awarded to him under the terms of the Appeal Order. [45] On February 5, 2014, N. Smith J. dismissed all three of G.S.'s applications (the "Smith Order"). On the same day, in separate reasons indexed as 2014 BCSC 188, the judge dismissed L.S.'s application to recognize and enforce a religious divorce and for a monetary judgment from a rabbinical court in Israel. That order is not under appeal. [46] G.S. appeals both the Schultes Order and the Smith Order. On May 20, 2014, Madam Justice Bennett ordered the appeals be heard at the same time: L.S. v. G.S. (20 May 2014), Vancouver CA041472 (B.C.C.A.). Applications to Admit Fresh and New Evidence [47] Both parties applied to

have "fresh and new evidence" admitted on appeal. G.S.'s application for the admission of "Affidavit #2 of [G.S.] dated June 10, 2014 as well as supplemental evidence to the already filed evidence that was before the chamber[s] judges in the hearing in both CA041472 and CA041638" was filed June 11, 2014. [48] G.S.'s affidavit attaches the reasons for judgment of N. Smith J. from February 5, 2014 dismissing the application to recognize and enforce the judgment from the rabbinical court, and of Bennett J.A. of May 20, 2014 in which she ordered both these appeals be heard together. [49] The affidavit also attaches a "court summary sheet" for file 103335, entered certificates of costs for both the trial (E103335) and the appeal (CA039325), a copy of the entered order of N. Smith J. made July 30, 2013 reserving the contempt application and providing he was seized of further applications unless, in an emergency, he was not available, and an email to G.S. from Supreme Court Scheduling on November 15, 2013 advising the action had been set before N. Smith J. in January 2014, but if urgent, could be set down in regular chambers. [50] An application to adduce fresh or new evidence is not required for this Court to consider the material in question. Reasons for judgment, entered orders and certificates of cost are matters of public record. As we said at the hearing of these appeals, G.S.

was free to refer us to any of this material as required, and did so. [51] On June 13, 2014, L.S. filed an application that the "June 9, 2014 letter of Dr. Birgitta Donahue, attached to Affidavit #1 of Tanya San Martin be admitted as fresh and new evidence in CA041472." The letter from Dr. Donahue, L.S.'s treating psychiatrist, in material part, says L.S. has been fully cooperative with all aspects of her care, and recent bloodwork has confirmed she has been taking her medications as prescribed. [52] G.S. applied to strike out the application on the basis of abuse of process. [53] I would not admit the proposed new evidence because it inappropriately takes these appeals beyond the record that was before Schultes J., and beyond the error-seeking function of this Court as earlier described in this litigation: Appeal Order RFJ at para.

32. In any event, given my view of the appropriate disposition of the appeal, it would have no effect on the outcome. The application by G.S. to strike L.S.'s application is therefore moot. Discussion Appeal from the Schultes Order (CA041472) [54] G.S. appeals the Schultes Order on a number of grounds, which can be stated as follows: 1. The judge erred in admitting into evidence letters of support from L.S.'s caregivers that included medical diagnosis and opinion that did not meet the requirements for expert reports or admissibility of clinical records; 2. having admitted the letters into evidence, the judge erred in finding the "specific change in the recovery progress of [L.S.] establish[ed]" a material change in circumstances (as set out by G.S. in his factum); and in the alternative 3. having found a material change in circumstances, the judge erred in failing to embark on a fresh enquiry into the best interests of the children, having regard to all the relevant circumstances relating to the children's needs and the abilities of the respective parents to meet those needs; and 4. having decided to consider only one issue before him, the judge erred by ignoring the Appeal Order and instead making "presumptions" about the parenting time that was in the best interests of the children, and specifically, by making an order that did not protect the children to the greatest extent

possible. Some of these grounds are interrelated, so there is overlap in addressing them. Standard of Review [55] Apart from the question of the admissibility of evidence, the standard of review applicable to the Schultes Order is described in this Court's earlier reasons (Appeal Order RFJ): [38] The standard of review to be applied by an appellate court reviewing the decision of a trial judge concerning matters of custody and access is that set out in Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, citing Hickey v. Hickey, [1999] 2 S.C.R.

518. In short, appeal courts should not overturn orders of trial judges unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or an error in law. Reasons for Judgment [56] As stated, the Schultes Order varied the supervised access order of N. Smith J., pronounced on October 22, 2013, and extended on October 30, 2013. The Schultes Order provided: 1. The Orders of The Honourable Mr. Justice N. Smith pronounced on October 22, 2013 and October 30, 2013 are varied to the following extent: The claimant [L.S.] may exercise parenting time with the [children] in alternating periods with the respondent of 72 hours duration, with the claimant's access or parenting time commencing on Tuesday, December 24, 2013 at 3 pm and continuing for 72 hours thereafter until further order of the Court. Exchanges are to take place with the respondent at 3 pm at Shopping Centre except if the exchange date is a school day, in which case the exchange will be at the [children's] school at 3 pm.

2. The claimant's ability to exercise her parenting time is subject to the following further conditions: a. she is to maintain herself in a condition in which her mental illness is not likely to cause harm to herself or others and in particular to her children; b. she is to continue to attend upon Dr. Brigitta [sic] Donahue as her treating psychiatrist, and Kathleen Pennykid as her case manager, at the Community Health Centre; c. the claimant's attendances are to be as directed by Dr. Donahue and Ms. Pennykid, or either of them, but in any case not less than once every 2 weeks; and d. she is to continue to take all medication as prescribed and directed by her psychiatrist, and to provide such assurances to her psychiatrist as the psychiatrist may require from time to time to ensure her compliance with prescribed medication including blood tests.

3. Costs are awarded to the claimant in the amount of $1000 inclusive of disbursement and taxes, and they may be set off against any outstanding costs that are owed by the claimant to the respondent. [57] Mr. Justice Schultes concluded he had jurisdiction to vary the supervised access order and that his variation order would be subject to further variation upon a material change in circumstances, as is any corollary relief order under the Divorce Act. He said: [7] I will just say something about jurisdiction first. My initial impression when this hearing began was that I was being asked to make an interim order pending Smith J.'s resolution of the parenting time issues. However, counsel for L.S. submits that s. 17 of the Divorce Act is actually what applies here. That is, I should characterize Smith J.'s order as a suspension of the previous order, as that term is used in s. 17(1). I am now being asked to vary that suspension pursuant to the same section, to provide for additional access. Under this analysis, if I grant the application I would not be making an interim order, but rather an additional variation, which will stand until a further material change of circumstances is shown. [8] This distinction is important to G.S., because he wishes to have the opportunity to argue against any order that I may make increasing L.S.'s parenting time when he gets before Smith J. again

in January. He had his own application before me as well, which I have adjourned to January, on the basis that what Smith J. gave leave for another judge to do was deal in his absence with the restrictions that he had made to the parenting time specified in Burnyeat J.'s order, and not to consider other issues. [9] I had some initial hesitation on this point, because of course a material change in circumstances is meant to be something that was not in the contemplation of the judge who makes the order that one is trying to vary. I wondered whether Smith J. envisioned a sufficient improvement in L.S.'s condition that some modification of his order to increase her parenting time was inevitable. On reflection however, I think that while such an improvement must have been a possibility or he would not have granted leave to bring an application in his absence, it was not sufficiently definite or predictable to qualify as a matter within his contemplation that precludes a further application based on it now. The point of requiring a material change in circumstances to vary an order is to prevent endless re-litigation of the same or similar facts. I do not see how that value is undermined by hearing this application, because it is not clear what order Smith J. could have made to anticipate accurately what has since occurred. [10] So, for G.S. to revisit anything that I now order, he

will have to show a material change in circumstances with respect to issues arising from the mental condition of L.S. Other matters relating to the best interests of the children that have not been argued before me may of course be raised before Smith J. [Emphasis added.] [58] The comments of Schultes J. in para. 8 reflect that he was clearly aware of the two days in January 2014 already scheduled before N. Smith J. (who was seized of the parties' applications subject to his availability), and was advising G.S. that he would have the opportunity then to argue his other applications. [59] In the circumstances, I consider the judge appropriately narrowed the issue before him to the specific question of whether there had been a material change in circumstances since L.S.'s admission to hospital in light of her recovery and unconditional release from hospital. As reflected by his reasons, I determine it is clear Schultes J. was making a variation order (Divorce Act, s. 17(5)) based on a material change relating to L.S.'s health. Mr. Justice Schultes was therefore correct that G.S. would have to establish a material change in circumstances to later succeed in a variation application of his order. [60] I agree with the position of L.S. that G.S. was in effect attempting to have Schultes J. embark on a broad reconsideration of the order of Burnyeat J. which had never been appealed and

had governed the parenting of the children from mid-April to mid-October 2013. In my view, the judge properly confined himself to the narrow issue L.S. brought before him. Did the judge err in admitting evidence of caregivers? [61] On her application before Schultes J. to vary the supervised access order, L.S. provided affidavit evidence and letters from health care professionals involved in her treatment during the acute phase of her manic episode. The first affidavits attached letters of the affiants which Schultes J. described as follows: [12] Ms. Wallace, a social worker at Vancouver General Hospital, provided a letter appended to her affidavit, talking about L.S.'s admission to the Brief Intervention Unit at Vancouver General Hospital on October 23, 2013. She describes her observations of L.S.'s interaction with her [children], and her view of the warmth, affection, and nurturing that L.S. demonstrated. She goes on to state: I support [L.S.]'s request to resume her parenting responsibilities once she is discharged from hospital on November 8. [13] Dr. Miller, a psychiatrist, also provided a letter appended to her affidavit. She describes L.S. being admitted with acute manic episode as part of her bipolar disorder. L.S. was treated in the Psychiatric Assessment Unit and then transferred to the Brief Intervention Unit, where Dr. Miller became her primary psychiatrist. Dr.

Miller says: L.S. is being discharged from hospital today without restrictions. The treatment team here at the Brief Intervention Unit wish her all the best and have confidence that she will return to her previous high level of function in the community. [62] There was also a letter from a Dr. Forbes, not referred to in the judge's reasons, saying L.S. was on her way to a full recovery. [63] While Schultes J. found the letters of Ms. Wallace and Dr. Miller to be "very strong support from her caregivers" (at para. 14), he had requested, on the first day of the hearing, December 5, 2013, that L.S. provide "some additional evidence with respect to her future care regime and some insight, if she could provide it, into what went wrong that led her to her relapse" (at para.16), which he followed up the next day with a memorandum asking that L.S. provide additional affidavit material addressing five specific issues. L.S.'s counsel provided the additional material, to which G.S. had been provided a chance to respond (at para. 16). [64] At the continuation of the hearing, the judge considered the affidavit of L.S. sworn December 12, 2013, in which she deposed to the issues he wished addressed, including her own commitment to take her prescribed medication, as well as her commitment to having monthly bloodwork done to assure her doctor she was taking her prescribed medication, and to her

specific support from a family friend to ensure compliance with her recovery program. [65] Mr. Justice Schultes said the additional information showed: [17] L.S. now has a treating psychiatrist, Dr. Birgitta Donahue, and a case manager, Kathleen Pennykid, who is a social worker, and that she will meet them once every two weeks at the Health Centre for the next year, after which their meetings will decrease as necessary [66] With respect to his request for a "description, from her own perspective (and preferably that of her treating psychiatrist as well) of the circumstances that led to her relapse", she deposed that "Dr. Donahue and I each have the view that my relapse in October 2013 was caused by a combination of stress, not taking medication, and my being away from any family support." [67] The additional material had also included a second affidavit of L.S. attaching a copy of the Vancouver General Hospital Discharge Summary of Dr. Miller. [68] The judge then considered the submissions of G.S. that L.S. had previously made commitments to a regime designed to keep her mental health under control, which she had not followed, and that L.S. had a history of non-compliance with court orders which G.S. submitted, as the judge put it, "speaks to a level of disregard for court orders that should be troubling to me, when I come to make an order governing her behaviour to ensure the

safety of the children" (para. 28). [69] G.S. contends Schultes J. erred in admitting the affidavits and appended letters of support in question. G.S. says they included medical diagnosis and opinion that failed to comply with the Supreme Court Civil Rules, B.C. Reg. 168/2009, for expert opinion reports. He further argues the letters do not meet the criteria for admissibility of clinical records as business records. The latter submission can be addressed briefly by simply observing the impugned material cannot be characterized as clinical records, either by its nature or by its purpose. I would not sustain such an argument. [70] G.S. submits that the letters of Ms. Wallace, Dr. Miller, and Dr. Forbes filed in support of L.S.'s application, as well as the statements of L.S. regarding Dr. Donahue contained in the additional material, being the affidavit of L.S. sworn December 12, 2013, did not comply with the rules governing expert medical opinion. I would not sustain this argument. To the extent any comments may have constituted expert opinion, it was largely undisputed. As to the additional material, the judge himself had requested it. It is common ground that L.S. has bipolar disorder and is required to take medication to control it. G.S. himself referred this division to the reasons of the trial judge in the divorce action that recognized this condition, and on which G.S.

himself relied in opposing L.S.'s application to vary the supervised access order, in which Gropper J. said: [25] [G.S.] expresses concerns about [L.S.'s] bipolar disorder. He is concerned that if [L.S.] returns to Israel and is left to care for the children on her own that that may trigger a manic phase episode. At the same time he acknowledges Dr. Sanders' opinion that if [L.S.] maintains her medication and continues to receive psychiatric care she should remain stable and this concern can be eliminated. [Trial Order RFJ] [71] Similarly, Schultes J. said this: [15] As I mentioned at the outset, this is a chronic illness. L.S. had post-partum depression [ ] and the diagnosis of bipolar disorder was made in 2006. The nature of the illness and the necessary measures to control it were canvased extensively at the parties' previous trial. It is fair to describe what happened in October of this year as a recurrence of its manic phase. [72] The judge found the factual content of the letters helpful: Ms. Wallace described having observed a warm interaction between L.S. and the children, and Dr. Miller said L.S. was being discharged from hospital without restrictions. Neither provided information that was apparently controversial, or in the nature of expert evidence. Instead, it seems G.S.'s concern about L.S.'s past behaviour was the basis of his objection to reinstating Burnyeat

J.'s order for equal parenting that N. Smith J. had varied on an interim basis. [73] It was also common ground that a major reason for L.S.'s relapse was the failure to take her medication. L.S. herself deposed to the medication that controlled her bipolar disorder, to her commitment to taking it, and that her relapse was caused by a combination of stress, not taking the medication and being away from family support. [74] In summary, it is my view the reasons for judgment reflect that Schultes J. did not use the material for any reason except that for which he had requested it, as information "with respect to L.S.'s future care regime and some insight, if she could provide it, into what went wrong that led her to her relapse" (at para. 16). [75] The material simply provided Schultes J. with information on which to base conditions for the resumption of L.S.'s access to the children on an "equal parenting" arrangement. To the extent any impermissible evidence found its way before the court, I cannot say it was material in the circumstances. There is no indication Schultes J. treated any of the information provided as being controversial expert opinion. I see no error in admitting the material in question for the limited purposes for which Schultes J. requested and received it. [76] I would not give effect to this ground of appeal. Did the recovery of L.S. constitute a material

change in circumstances, and if so, did the judge err by not embarking on a fresh inquiry into the best interests of the children? [77] G.S. relies on Gordon v. Goertz, [1996] 2 S.C.R. 27 at para. 13, which decided as a threshold matter that before entering on the merits of an application to vary a custody order (or access order), a judge must be satisfied of a material and unforeseen change in the circumstances of the child and/or the ability of the parents to meet the needs of the child. [78] I see no merit to G.S.'s contention that L.S.'s recovery from her manic episode was not a material change in circumstances. Mr. Justice Schultes reasonably considered that an improvement in her condition was not sufficiently definite or predictable to qualify as being within the contemplation of N. Smith J. when he earlier varied her equal access to supervised access. Thus, her recovery did not preclude L.S.'s variation application. [79] The judge agreed with G.S. that the possibility of L.S. relapsing while she had care of the children was a serious concern. But having considered it, he said, "I also have to look at what she has committed to do in the future, and judge whether that is sufficient to address the Court's concerns" (at para. 34). [80] He concluded: [35] I am satisfied that her recovery to date does constitute a material change in circumstances which, if known at the time of

the suspensions, would have resulted in a different order. In fact there might not have needed to be any order suspending parenting time, or there would have been a less restrictive order than what resulted. [36] I am going to put conditions in place to govern L.S.'s parenting time, and there are going to be some additional conditions attached to it that relate to her own conduct. I want to make it clear that the Court's jurisdiction to do so arises solely in the context of her exercising this parenting time. She is not under the Court's jurisdiction for any other purpose. What I am ordering her to do is as a precondition to exercising her parenting time and not some freestanding effort to govern her conduct in the community. [37] I will vary the suspension orders of Mr. Justice Smith to this extent: L.S. may exercise parenting time with the [children], in alternating periods with the respondent of 72 hours' duration. Her access or her parenting time beginning tomorrow at 3:00 p.m., and continuing for 72 hours thereafter, with the subsequent exchange with G.S. taking place at 3:00 p.m. at that point, and thereafter for periods of 72 hours until further order of the Court. The exchange point will be at the shopping centre. [Emphasis added.] Mr. Justice Schultes imposed strict conditions upon L.S.'s access to the children, as reflected in his order replicated above. [81] Gordon

v. Goertz also decided that once a material change in circumstances had been established, the court must embark on a fresh inquiry described as follows: 47. The parent seeking the change bears the initial burden of demonstrating a material change of circumstances. Once that burden has been discharged, the judge must embark on a fresh inquiry in light of the change and all other relevant factors to determine the best interests of the child. There is neither need nor place to begin this inquiry with a general rule that one of the parties will be unsuccessful if he or she fails to satisfy a specified burden of proof. [Emphasis added.] Having found a material change in circumstances, G.S. contends the judge erred by varying the supervised access order without first conducting a fresh inquiry into the best interests of the children. He says there is nothing in the judge's reasons to demonstrate it is in the children's best interests to split time between their parents in alternating 72-hour periods. [82] However, I agree with the submission of L.S. that the judge did not err in not embarking on a broad general inquiry in the circumstances, given the narrow issue before him. After all, there was no other aspect of potential change for Schultes J. to consider beyond the issue of L.S.'s current mental health. [83] Significantly, to the extent G.S. raised other issues relevant to the

parenting of the children, Schultes J. quite appropriately adjourned those applications to give G.S. an opportunity to address them during the time already scheduled before N. Smith J., who was familiar with this case. [84] Mr. Justice Schultes was clear his overriding consideration was the best interests of the children (at paras. 24 and 31). A broadly based "fresh inquiry" would have been inconsistent with the discrete basis on which N. Smith J. made the supervised access order, and on which Schultes J. heard and addressed L.S.'s application. In these circumstances, I consider it entirely reasonable for the judge to have confined himself to the specific issue of L.S.'s recovery from her manic episode. G.S. in fact did bring his other applications before N. Smith J. in January 2014. [85] Mr. Justice Schultes determined there was sufficient evidence that L.S. had recovered such that he could vary the supervised access order on strict terms. He therefore restored the "equal parenting" ordered by Burnyeat J., but with the variation from a weekly rotation to alternating three-day periods between the parties. [86] I consider it was open to the judge to find L.S.'s recovery constituted a material change in circumstances from her admission into hospital. He did not err by declining to embark on a broad inquiry into the terms of the joint custody order, or in the exercise of his

discretion in the best interests of the children, by varying the length of the parenting rotation. [87] I would not give effect to these grounds of appeal. Did the judge err by making presumptions about parenting time and not protecting as much as possible the children's safety and well-being? [88] I see no merit in G.S.'s submission that Schultes J. erred in "making presumptions" about the parenting regime that was in the best interests of the children, or that he failed to optimally protect the children. In my view, it was quite open to the judge to accept the commitment to which L.S. deposed, and to find the treatment and support described in the evidence before him, together with the strict conditions the judge imposed within the structure of a three-day rotation, to be in the best interests of the children at the time. It properly accounted for their safety and well-being. G.S. has not identified any palpable and overriding error in the making of this order. [89] I would not accede to this ground of appeal. [90] It follows that I would dismiss the appeal from the Schultes Order in CA041472. Appeal from the N. Smith J. Order (CA041638) [91] On September 19, 2013, N. Smith J. found L.S. in contempt of court for not returning the children to Vancouver by June 30, 2012, the date ordered by this Court, and ordered special costs in favour of G.S. [92] On November 5, 2013, G.S.

filed an application for further relief based on L.S.'s failure to return the children as ordered, including declarations that this "Wrongful Retention of the Children by [L.S.] in Israel between June 30, 2012, and November 7, 2012 and consequently the injury to the children's emotional well-being" constituted parenting time denial and family violence, as defined in the FLA, and child abuse. G.S. also applied for declarations that L.S.'s initiation of legal proceedings in Israel caused him hardship and disruption, and her efforts to re-litigate divorce issues in Israel and in British Columbia, all amounted to family violence. [93] G.S. named L.S.'s parents in his application on the basis they assisted her in her wrongful retention of the children and by financing the litigation. He sought an order that L.S. pay him $90,000 for expenses he incurred from the alleged denial of parenting time. [94] In another application, filed November 13, 2013, G.S. sought an order that L.S. and her father be found in contempt of court for failing to pay costs ordered in the Appeal Order. [95] Mr. Justice N. Smith heard both applications on January 22, 2014 and dismissed each of them on February 5, 2014. His reasons are indexed as 2014 BCSC 187. [96] I would dispose of the grounds relating to the applications under the FLA (denial of parenting time and family violence) with the proviso that

significant issues of jurisdiction were not raised and therefore not addressed in the court below. I will therefore deal only briefly with G.S.'s arguments. [97] I would also dismiss the appeal from the denial of the application to have L.S. and her father found in contempt of court. Denial of parenting time [98] G.S. contends the judge erred by not declaring L.S.'s retention of the children in Israel from June 30 to November 7, 2012, to be a "denial of parenting time" as referenced in s. 61 of the FLA, and in not ordering, pursuant to s. 61(2)(d) of the FLA, the reimbursement of $90,000 for "expenses reasonably and necessarily" incurred during this period. He also submits the judge ignored his application under s. 61(2)(g) of the FLA for a monetary penalty of $5,000 for denial of parenting time. [99] G.S. asserts the judge misapprehended the evidence, made errors of fact and law, and generally reached an unfair conclusion. [100] Mr. Justice N. Smith concluded that even if s. 61 of the FLA were applicable, G.S. had provided insufficient evidence for an award in damages. He said: [18] The claimant's actions undoubtedly made it more difficult and expensive for the respondent to exercise his parenting time and may have affected the quality, if not the quantity, of his time with the children. It may be that the reference to a "denial" of parenting time in s. 61 can be interpreted

broadly enough to cover those circumstances and entitle an applicant to at least an order for payment of expenses under s. 61(2)(d). I do not need to decide that in this case because, even if such an order would be appropriate, there is no evidence of the proper amount to be awarded. * * * [21] The respondent does claim some expenses that are potentially recoverable under s. 61(2)(d). These are loss of income, increased living costs while in Israel and a portion of travel costs. However, there is no specific evidence of what those expenses were. The respondent has provided no evidence of what his income, if any, was in Israel or what it would have been in Vancouver, nor has he provided evidence of what his living expenses were in Israel. He has simply lumped those alleged expenses, along with other expenses that are clearly not recoverable, into a global demand for $90,000. Even if an order under 61(2)(d) is available in these circumstances, the respondent has made it impossible for the Court to make an appropriate one. [Emphasis added.] Family violence application [101] G.S. also submits N. Smith J. erred by not declaring L.S.'s conduct in Israel constituted "family violence" under the FLA. Again, G.S contends the judge made many errors of fact or law in reaching this conclusion. [102] Mr. Justice N. Smith noted (at para. 24) that orders with respect to family violence are

generally considered in the context of an application to establish or change guardianship, parenting arrangements or contact with a child. He acknowledged, though, that purely declaratory relief, as sought by G.S., may be available under the court's general jurisdiction in equity but that is a matter of discretion. The judge declined to use this equitable jurisdiction to grant the relief sought, stating: [26] More important, there is no evidence that the children have suffered any physical or emotional harm as a result of the claimant's conduct. The provisions in the FLA relating to family violence are intended to address a serious social issue and to protect children and spouses from actual harm or danger. Their meaning and application should not be stretched to the point they become just another weapon in a largely financial war between the parties. Jurisdictional issue [103] A preliminary issue regarding the FLA grounds of appeal is jurisdiction. [104] To reiterate, the Appeal Order was for joint custody, primary residence to G.S., and access to L.S. on a shared parenting basis, all under the Divorce Act, and joint guardianship under the Family Relations Act. Significantly, the Appeal Order was a final order in a completed action that was not commenced, litigated, or concluded under the FLA. [105] The FLA came into effect on March 18, 2013, more than four months after the

children were returned to Vancouver. A threshold requirement to the granting of G.S.'s applications under paragraphs 61(2)(d) and (g) of the FLA is an agreement or an order for "parenting time". [106] The relevant sections of the FLA are as follows: 1. In this Act: "family violence" includes (a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm, (b) sexual abuse of a family member, (c) attempts to physically or sexually abuse a family member, (d) psychological or emotional abuse of a family member, including (i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property, (ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy, (iii) stalking or following of the family member, and (iv) intentional damage to property, and (e) in the case of a child, direct or indirect exposure to family violence; * * * Parenting time 42 (1) For the purposes of this Part, parenting time is the time that a child is with a guardian, as allocated under an agreement or order. (2) During parenting time, a guardian may exercise, subject to an agreement or order that provides otherwise, the parental responsibility of making day-to-day decisions affecting the child and

having day-to-day care, control and supervision of the child. * * * Denial of parenting time or contact 61 (1) An application under this section may be made only (a) by a person entitled under an agreement or order to parenting time or contact with a child, and (b) within 12 months after the person was denied parenting time or contact with a child. (2) If satisfied that an applicant has been wrongly denied parenting time or contact with a child by a child's guardian, the court on application may make an order to do one or more of the following: (a) require the parties to participate in family dispute resolution; (b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs; (c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child; (d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses; (e) require that the transfer of the child from one party to another be supervised by another person named in the order; (f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to (i) give security in any form the court directs,

or (ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court; (g) require the guardian to pay (i) an amount not exceeding $5,000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or (ii) a fine not exceeding $5,000. [Emphasis added.] [107] In a memorandum to the parties sent through the registry, this division requested submissions on two significant issues that were not addressed in this matter: 1. Is there any authority that would permit [G.S.] to pursue a new cause of action for a declaration of "family violence" under the Family Law Act, with an attendant claim for expenses incurred for the denial of "parenting time" under s. 61(2)(d), within the completed divorce action? It ended on appeal with a new final order for joint custody of the children pursuant to the Divorce Act and joint guardianship with primary residence to [G.S.] under the former Family Relations Act. It should be noted that the Family Law Act came into force on March 18, 2013, almost a year after the Court of Appeal's decision in April 2012.

2. Assuming there is authority to pursue such a claim in this manner, is there any authority that would permit such claims in the face of corollary relief orders under the federal Divorce Act (a potential "paramountcy" issue) and in the absence of an order under the Family Law Act for "parenting time" or "contact" which appears to be a condition precedent under s. 61(1)(a) of the Family Law Act for an order under s. 61(2)(d)? We are also concerned about whether these issues should be addressed as a matter of first instance before this Court. As requested, in the brief time available, the parties made some helpful submissions on the first two issues raised in the memorandum, but I am of the view they should not be addressed as a matter of first instance before this Court. This includes the ground of appeal based on the judge having ignored G.S.'s application pursuant to s. 61(2)(g) of the FLA (not mentioned in the memorandum). [108] This is not a court of first instance. Our discretion to address new issues not previously raised is generally exercised sparingly and only where the interests of justice require it: R. v. Mayers, 2011 BCCA 365 at para. 31; R. v. Trieu, 2010 BCCA 540 at para.

56. I do not consider it in the interests of justice for this Court to engage in the exercise of statutory interpretation required to resolve issues of jurisdiction not argued before the trial court. [109] First, the Supreme Court of British Columbia is better placed to test contested applications that might be resolved by evidence and potential cross-examination. Our function is compromised where the court of first instance is deprived of the opportunity to make relevant findings of fact and undertake an analysis of the issue (Mayers, citing Trieu at para. 56). Appellate courts should not sit as courts of first instance by entertaining arguments that could have been made in the first instance, but for reasons of professional judgment, efficiency or tactics, were not pursued: R. v. Vidulich (1989), 37 B.C.L.R. (2d) 391 (C.A.) at 398‑99, cited in Trieu at para. 56. [110] The law on these issues will be developed by the Supreme Court of British Columbia. I would adopt with modification this Court's statement in Mayers: in the absence of a trial-level decision for review, the only appeal from an appellate court decision setting out jurisdictional rules would be by leave to the Supreme Court of Canada. [111] The issues merit greater consideration than could be obtained if this Court pronounced on these questions of jurisdiction at first instance. G.S. has not persuaded me this is

an appropriate case for this Court to resolve these fundamental questions as a matter of first instance. It is worth repeating that this action was not commenced, litigated, or decided under the FLA, and the action under the Divorce Act and the Family Relations Act was completed. [112] I would add that even if the court below had addressed and resolved the jurisdictional issues in favour of G.S., the applications in question had no merit in my view, essentially for the reasons of N. Smith J. Accordingly, there is no reason for this Court to exercise its discretion to decide the new jurisdictional issues in this case. [113] It follows that I would not accede to the grounds of appeal based on the applications under the FLA. The contempt application [114] G.S. applied for a finding that L.S. was in contempt of court because she had not paid the costs of the trial and appeal as required by the Appeal Order. He joined L.S.'s father in this application on the basis L.S.'s father had assisted L.S. to put her financial assets out of reach of the court. [115] In her "Application Response" filed January 13, 2014, L.S. said she holds a judgment of an Israeli court for payment to her by G.S. of approximately $85,000 and she has exhausted her share of the proceeds from the sale of the parties' Israel property. [116] G.S. says the judge misapprehended facts which led him to wrongly decide

there was no evidence L.S. deliberately attempted to hide assets. [117] G.S. argues that L.S.'s parents have substantial wealth in Israel and had been financing her litigation. He refers to the Application Response of L.S.'s father, filed the same day as her response, where, under Part 4: Factual Basis, para. 3, L.S.'s counsel says: [L.S.'s father] has regularly managed funds for [L.S.] and it was not surprising that upon receiving sale proceeds for the Israel home owned by [G.S.] and [L.S.], [L.S.] transferred the funds to [her father]. She was indebted to [her father] on account of past and current legal fees paid for her by [him]. Further legal expenses were anticipated. [G.S.] also had an obligation of $139,000 Cdn to [L.S.] pursuant to a ketubah. Counsel for L.S. explained at the hearing that a "ketubah" is a traditional contract in the Jewish religion that delineates the obligations of a husband to a wife, and involves the payment by the husband to the wife on divorce. [118] Mr. Justice N. Smith held that regardless of how wealthy L.S.'s parents were, they were not parties to the action and are under no obligation to pay her costs. He continued: [29] A failure to pay a costs award may become a matter of contempt where there is evidence of a deliberate attempt to hide assets, but there is no such evidence in this case. At most, there is evidence that the claimant at one point had money in an Israeli bank account and used to it pay her Israeli lawyers in preference to the respondent. I know of no authority under which such conduct, in itself, would amount to contempt. [119] On a contempt application, an applicant must demonstrate, beyond a reasonable doubt, that the respondent has committed contempt: North Vancouver (District) v. Sorrenti, 2004 BCCA 316 at para.

10. In Sorrenti, Madam Justice Newbury emphasized (at para. 12), "[t]he offence consists of the intentional doing of an act which is in fact prohibited by the order". [120] In cases of an order for payment of money, the applicant alleging contempt must establish, beyond a reasonable doubt, not only that the respondent breached an order of which there was notice, but also that the respondent had the capacity to pay the amount: Swann v. Swann, 2009 BCCA 335. [121] G.S. submits the judge correctly noted (at para. 29) that a "failure to pay a costs award may become a matter of contempt where there is evidence of a deliberate attempt to hide assets". But he contends the judge erred by concluding the evidence showed, at most, that L.S. had money in an Israeli bank account and used it to pay her Israeli lawyers in preference to G.S. [122] G.S. says the judge ignored the record of an earlier chambers proceeding in which his "affidavit no. 81" appended an extract from the examination in aid of execution of September 3, 2013. G.S. submits: On pages 9-11 [L.S.] testified that she had transferred an amount of about 1,100,000 new Israeli Shekels to her father's account and point on the specific line item in the bank account transaction that shows the transfer. A copy of the record of transaction is provided as exhibit "A" of [G.S.'s] same affidavit. The transaction is dated as April 25,

2012, about 3 weeks after the judgment of this appeal court dated April 5, 2012 was pronounced that provided that [L.S.] would have to pay the costs of the proceedings. G.S. submits that before this examination in aid of execution, L.S. had continuously claimed she had no money. [123] G.S. also refers to certain extracts from transcripts of the examination in aid of execution of September 3, 2013, and to an "affidavit #15" sworn January 13, 2014, appending a letter from L.S.'s lawyer responding to requests from the Examination in Aid of Execution, where L.S. stated she used up the 1,100,000 Israeli Shekels in April 2012, which was before any court proceedings in Israel had commenced. This evidence, according to G.S., provides the clearest evidence that L.S. attempted to hide assets. G.S. submits that L.S.'s claim that she used the money to pay the legal costs of her proceedings in Israel is irrelevant to the contempt application. In summary, G.S. submits the judge erred by ignoring evidence and concluding there was no evidence of a deliberate attempt to hide assets. [124] I note it is common ground L.S. has no assets in this jurisdiction. Mr. Justice N. Smith's conclusion that there was no evidence of a deliberate attempt to hide assets is entitled to deference. These findings were reasonably open to him. I see no palpable and overriding error in his dismissal of the contempt application, and would not give effect to this ground of appeal. Conclusion [125] In the result, I would dismiss the appeals in both CA041472 and CA041638. "The Honourable Madam Justice MacKenzie" I agree: "The Honourable Chief Justice Bauman" I agree: "The Honourable Madam Justice D. Smith"