Leung v. Kroeker

2017 BCSC 1221 Leung v. Kroeker

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Leung v. Kroeker, 2017 BCSC 1221 Date: 20170714 Docket: E171003 Registry: Vancouver Between: David K.O. Leung Claimant And Kim L. Kroeker Respondent Before: Master Muir Reasons for Judgment Counsel for the claimant: J. Kang Counsel for the respondent: A.M. Ouellet Place and Date of Hearing: Vancouver, B.C. June 21, 2017 Place and Date of Judgment: Vancouver, B.C. July 14, 2017 introduction [1] This was an application by the claimant for an order that the respondent not relocate or change the residence or school of the parties' children. [2] Counsel for the parties urged me at the hearing to provide an immediate decision as the respondent's property purchase was closing shortly. As a result, I denied the application with reasons to follow and these are the reasons for my decision. Background [3] The parties were married on June 16, 2001, separated in June 2010, and were divorced on January 21, 2013. [4] The parties have two children together, Jett Dylan Kroeker-Leung, born January 11, 2008 and Reese Ashley Kroeker-Leung, born April 22, 2006 (collectively, the "children"). [5] The parties entered into a separation agreement in February 2012 (the "Separation Agreement") in which it was agreed that they were to be joint guardians of the children with the respondent having final decision-making power regarding important decisions.

It was agreed the claimant would have the right to seek a review of any such decisions made by the respondent. [6] Also agreed was that the respondent would have the primary residence of the children with liberal and generous access for the claimant to the children as agreed between the parties. [7] Since the parties separated in 2010, the claimant has had the children each week from 3 p.m. after school on Thursday until approximately 7 or 8 p.m. on Saturday evening. This was arranged in accordance with the claimant's work schedule as he works 5 a.m. to 2 p.m. Sundays to Thursdays. In addition to weekly parenting time, the claimant has six weeks of holidays with the children yearly. [8] The respondent works for WestJet on what I understand to be a flexible, part-time basis. She also works as a realtor. Her evidence is that she arranges her work schedule around the claimant's and the children's schedules so that the children can always be looked after by one of the parties. [9] Pursuant to the Separation Agreement, the claimant was to pay child support for two children based on the Federal Child Support Guidelines, SOR/97-175 (the "Guidelines") for an income of $70,000 per annum, which amounted to $1,053 per month. The respondent agreed, however, to accept $1,000 per month. [10] At the time of the hearing of this matter, the respondent was living in a rented two-bedroom

condominium in Burnaby, B.C. and the claimant owned a townhouse in Vancouver, close to the boundary with Burnaby. The children were attending John Norquay Elementary School in Vancouver, enrolled in a Mandarin bilingual program. [11] The respondent's evidence, which is not disputed by the claimant, is that she has made financial accommodations that have allowed him to purchase his residence in Vancouver. [12] One such accommodation, according to the respondent, was to further reduce the claimant's child support obligations. In May 2012 when the claimant was trying to obtain mortgage financing for his townhouse, he was turned down by the bank as the amount of his financial obligations made his debt service ratio too low. At that time, the respondent agreed to forgo child support to allow the claimant to qualify for the mortgage financing. The claimant did not pay any child support from July 2012 to September 2014. [13] At the request of the respondent, the claimant began paying child support again in September 2014. The respondent says the amount was a total of $100 per month as the claimant said he could not afford to pay more. The amount was increased, again at the respondent's request, to a total of $500 per month in February 2015. [14] In addition, the claimant was to pay $2,500 per year towards each child's Registered Education Savings Plan account, although he failed to do

so in 2014. The claimant has suggested in communications with the respondent that he cannot afford to make that contribution going forward due to legal fees he will be required to spend on this action. The claimant is to also pay for the children's extracurricular activities, such as swimming lessons and the daughter's gymnastics. [15] In her affidavit dated June 7, 2017, the respondent indicates that she is now seeking full child support in accordance with the Guidelines. In submissions, counsel for the claimant indicated that full guideline child support was now being paid by the claimant, but I have no other evidence of that. [16] The respondent's evidence, which I accept, is that she could not afford to purchase a residence suitable for the children upon separation. The claimant points out that the respondent did purchase a one-bedroom condominium, which apparently was rented out. That one-bedroom condominium would obviously not have been suitable for her and the children and was sold in 2017. [17] The children presently have to share a bedroom in the respondent's two-bedroom apartment. Her evidence is that it is cramped for the three of them. As the children are getting older, the respondent is of the view that it is inappropriate for the daughter and son to continue to share a bedroom. [18] In or about the summer of 2016, the respondent decided that she should start

looking for a more suitable place for the children and her to live. She realized that she could not afford to purchase in Vancouver or Burnaby, so she looked further out. [19] The respondent says that the claimant has always been advised of her intention to eventually buy a residential property. In October 2016, she made an offer on a townhome in the Port Moody area and informed the claimant of this. He asked her if the children would be commuting from Port Moody to the same school in Vancouver. Her response was "for now", and that she would try keeping the children at their same school and see how things would work. [20] The claimant did not object to the respondent's plan to purchase the Port Moody property. He says he did not do so as by the time he had looked into his rights, the respondent had decided not to complete the purchase. [21] On January 18, 2017, however, the claimant made an offer on the property that she now proposes to move to, being a new house in a quiet residential area in Langley. It allows for the children to have their own bedrooms and there is a fenced yard. It is close to the children's proposed new schools. [22] The respondent says that she tried to contact the claimant on January 30, 2017 prior to her having to remove the subjects from her offer for the Langley property, to discuss her intentions. Her evidence is that the claimant did not answer his

phone despite her calling him three times that day. The claimant subsequently sent a text to the respondent saying that he was at the gym and could not answer her phone calls, and the respondent replied asking him to call her. He texted her later, but she did not see the text until the next day. That evidence is disputed by the claimant, but regardless, the respondent removed the subjects from her offer for the Langley property without discussing it with the claimant. [23] The respondent says that she advised the claimant of her purchase in early February 2017, and his response was that she was supposed to discuss such things with him in advance and he raised the issue for the first time of his desire to have a 50/50 parenting schedule. However, the respondent says that the claimant did not object to her proposed move. [24] The respondent's evidence is that the claimant advised her in or about February 2017 that he could no longer afford the $500 monthly child support that he had been paying. [25] The claimant says he first received the respondent's advice about her purchase of the Langley property and her intended move on February 22, 2017. [26] The parties had some further communication in February and March 2017, and on March 11, 2017, the respondent sent an email to the claimant detailing the reasons for the move, the advantages of the Langley residence, and the

accommodations she had made so that the claimant could purchase his own residence. The claimant responded in an email to the respondent: I do not have a problem with you moving. However, you cannot change the children's school without consulting with me. [27] The claimant's position regarding parenting, as expressed in a text message of April 12, 2017, was that he was entitled to 50/50 time with the children. The claimant's plan at this time for equal parenting, apparently, was that the children would stay at his girlfriend, Jennifer Chan's house four nights per week so that she could take them to school in the morning when the claimant was at work. Alternatively, Ms. Chan would stay at his place four nights per week. [28] The respondent was not in agreement with either plan. The respondent says she does not know Ms. Chan. She is aware, however, that Ms. Chan has two children of her own. [29] The respondent had issues about where the children would all sleep, being concerned that they should not continue to share a bed or bedroom at their ages. She also had concerns that the children would then have three residences instead of two. [30] The claimant's response was that Ms. Chan's children would not be present when the parties' children stayed there, or her children would sleep on a mattress on the floor and the parties' children would have their own beds. It seems, however,

that the children would still be required to share a room. [31] The parties attempted mediation of these issues without success and in April 2017, the claimant commenced this action. His claim seeks shared parenting time as well as the relief sought in this application. His counsel submitted that if I dismissed the claimant's application to prohibit the respondent's move, that I should do so without prejudice to the claimant's right to seek equal parenting time. I did not make that order, as, in my view, it is not necessary. [32] On the application before me, the claimant says that he and Ms. Chan have now reached an agreement to cohabitate and that Ms. Chan has agreed to look after the children and see that they get to school if the claimant has 50/50 parenting time. [33] I do not know why the claimant has delayed bringing an application for equal parenting time but as it is not before the court, in my view, this application must be considered based on the present circumstances. Analysis [34] The claimant relies upon the Family Law Act, S.B.C. 211, c. 25 [FLA] with respect to removal of children and relocation. The provisions relevant to this application are as follows: Orders to prevent removal of child 64 (1) On application, a court may make an order that a person not remove a child from a specified geographical area. (3) This section does not apply in relation to the

relocation of a child within the meaning of Division 6 [Relocation] of this Part. Division 6 -- Relocation Definition and application 65 (1) In this Division, "relocation" means a change in the location of the residence of a child or child's guardian that can reasonably be expected to have a significant impact on the child's relationship with (a) a guardian, or (b) one or more other persons having a significant role in the child's life. (2) This Division applies if (a) a child's guardian plans to relocate himself or herself or the child, or both, and (b) a written agreement or an order respecting parenting arrangements or contact with the child applies to the child. Notice of relocation 66 (1) Subject to subsection (2), a child's guardian who plans to relocate himself or herself or a child, or both, must give to all other guardians and persons having contact with the child at least 60 days' written notice of (a) the date of the relocation, and (b) the name of the proposed location. (2) The court may grant an exemption from all or part of the requirement to give notice under subsection (1) if satisfied that (a) notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child, or (b) there is no ongoing relationship between the child and the other guardian or the person having contact with the child. (3) An

application for an exemption under subsection (2) may be made in the absence of any other party. Child may be relocated unless guardian objects 68 If a child's guardian gives notice under section 66 [notice of relocation] that the guardian plans to relocate the child, the relocation may occur on or after the date set out in the notice unless another guardian of the child, within 30 days after receiving the notice, files an application for an order to prohibit the relocation. Orders respecting relocation 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. (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. [35] The claimant objects to the respondent moving with the children to Langley, as he says this will greatly diminish the time he spends with them. He submits that the result would be a significant impact to his and his family's relationship with the children and, as a result, the move is properly considered a relocation as defined in s. 65 of the FLA. [36] The respondent submits that if this is considered a relocation, the claimant failed to file an application

opposing the move within 30 days of being advised of it, as required by s. 68 of the FLA. That, in and of itself, would be sufficient to allow a relocation. [37] Langley is in what is generally referred to as the Greater Vancouver area, which is the greater metropolitan area surrounding Vancouver. Many people make the commute from Langley to Vancouver for work. Similar moves have been considered in other cases. In Berry v. Berry, 2013 BCSC 1095, Master MacNaughton, as she then was, concluded: [37] In all these circumstances, I have concluded that Ms. Berry's move from Surrey to North Vancouver should not be considered a relocation. Rather, it is a change in residence within the lower mainland and between communities which are within commuting distance of each other. Parents regularly travel those distances for work and to exercise parenting time which is reflected in the many orders of this court which use the lower mainland as the boundary within which parents are permitted to move without requiring consent or a court order. [38] The respondent says that it is her intention that the move to Langley not interfere with the claimant's parenting time with the children. [39] The children's relationships with the claimant and his extended family have obviously developed to the extent they have during his current parenting time. The impact of the move on the claimant's present

parenting time will be the extended time to commute. The evidence is that the children's schools in Langley are about an hour by car from the claimant's workplace and home. The respondent has offered to assist with the driving when her work schedule allows her to do so. [40] Other than asserting that this extra commute will have a "profound negative impact" on his relationship with the children, the claimant offers no convincing evidence of anything that will be significantly changed. Although his evidence is that the additional commute will prevent the children from attending swimming lessons and family gatherings, he does not say why. [41] The claimant is off work at 2 p.m. on Thursdays. He can easily be at the children's school by 3 p.m. or shortly after. Coming back to Vancouver, he would be driving against traffic and the travel time should be similar. Even assuming it was to take longer, the children should easily be able to be at the claimant's house in Vancouver between 4 p.m. and 5 p.m. [42] I cannot conclude that the additional commute time will have a significant impact on his relationship with the children or their relationship with his extended family. [43] Hence, in my view, the move to Langley by the respondent is not properly considered a relocation under s. 65 of the FLA. [44] In the alternative, the claimant submits that I should invoke the provisions of s. 64

of the FLA to prevent the move. [45] The claimant's first submission in that regard is that in addition to the impact on his and his family's relationship with the children, the move to Langley will disrupt the children from their community and friends and prevent them from continuing with the Mandarin bilingual program at their present school. [46] Although the Langley schools do not have a Mandarin bilingual program, the respondent proposes to encourage the children's abilities by enrolling them in extra-curricular Mandarin programs. The respondent says the original decision to place the children in a Mandarin bilingual program was not totally based on the children's heritage. Although the claimant is of Chinese descent, the respondent's heritage is Korean. The claimant's family is totally westernized and he is not a fluent Mandarin speaker. The respondent describes the children as quintessentially Canadian. The respondent is fluent in French and intends to encourage the children in French studies as well. [47] I note that at present it appears that no Vancouver high schools offer such a Mandarin bilingual program. The claimant's evidence is conflicting on this point. In his affidavit sworn April 6, 2017, he says: This is the only school in East Vancouver offering this program There are talks from the Vancouver School Board to further their Mandarin language by offering this

program in a near-by high school. [48] In his affidavit sworn June 19, 2017, his evidence is that the children's program will continue on to high school. There is no explanation of the change in his evidence. [49] The respondent has visited the children's proposed schools in Langley and investigated other schools in the area and I am satisfied that they offer benefits for both children. [50] The respondent proposes to maintain the children's present friends by inviting them for sleep-overs in Langley. In addition, the children would presumably be able to see their Vancouver friends when they are with the claimant. [51] Although the move may impact on the children's relationships, in at least one sense important relationships in the children's lives will be improved by the move. The Langley residence is closer to the respondent's parents, who reside in Chilliwack and enjoy spending time with the children on a regular, often weekly, basis. The children apparently enjoy various activities with them, including gardening, fishing, sledding, knitting, and baking. [52] On a consideration of the benefits of the move to Langley for the children and the limited impact it will have on their present relationships, it was and is my conclusion that the move is in the children's best interests and, hence, I denied the application of the claimant. [53] I have one additional concern. In his

affidavit sworn June 19, 2017, the claimant states: I have spoken to my children numerous times regarding relocation and increased parenting time with me. They both expressed that they would love to stay at Norquay Elementary and are extremely excited about a 50/50 week on - week off arrangement. They often ask for more time with me and both pointed out how this current arrangement "is not fair". [54] It seems to me to be extremely unlikely that these children, who have been living with the present parenting arrangements for seven years since they were ages 2 and 4, would consider the situation 'unfair' unless that had been put into their heads by adults -- presumably the claimant. [55] It is generally accepted that having parents discuss these issues with children can be very harmful to the children. The children can feel forced into a position of trying to please both parents with very negative results. The children can assume a burden of responsibility for the conflict that is harmful and simply inappropriate. If the views of the children are needed, they can be obtained in an appropriate manner, such as a s. 211 report. [56] Therefore, in addition to dismissing the claimant's application, I am making conduct orders under ss. 222 and 227 of the FLA, as follows: 1. The parties will refrain from discussions with or in front of the children concerning family issues or

litigation; and 2. The parties will encourage their respective families and other lay persons to refrain from discussions with or in front of the children concerning family issues or litigation. [57] I have made the conduct order mutual, not because there is any evidence that the respondent has engaged the children in such communications, but because should there be applications in the future regarding parenting time or anything else, I want it to be very clear that the children are not to be involved in such discussions. [58] As the respondent was the successful party in this application, she shall have her costs. As the parties have resolved most issues in the Separation Agreement and there is unlikely to be a trial of this matter, those costs will be payable forthwith. "Master Muir"