Malviya v. Bhupendra

2018 BCSC 454 Malviya v. Bhupendra

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Malviya v. Bhupendra, 2018 BCSC 454 Date: 20180321 Docket: E45594 Registry: New Westminster Between: Deepali Malviya Claimant And Kshitij Bhupendra Respondent Before: The Honourable Mr. Justice Harvey Reasons for Judgment Appearing on her own behalf: The Claimant, D. Malviya Counsel for the Respondent: P. Virk Place and Dates of Trial: New Westminster, B.C. April 25-28, May 1-5 November 6-8 and 10, 2017 Place and Date of Judgment: New Westminster, B.C. March 21, 2018 Introduction.. 3 Background.. 3 Position of the Parties. 11 Credibility of the Parties. 14 Section 211 Report. 21 Parenting Arrangements. 24 The Child's Health and Emotional Well-Being. 26 The Child's Views. 26 The Nature and Strength of the Relationship between K. and the Parties. 26 The History of Her Care. 27 K.'s Need for Stability. 27 The Ability of Each of the Parties to Exercise Parental Responsibilities. 27 The Impact of Family Violence. 27 The Ability of the Parties to Cooperate Concerning Matters Pertaining to K.'s Well-Being. 28 The Parties' Proposals. 29 Travel. 31 Property. 32 Spousal Support. 37 Child Support. 43 Retroactive and Prospective Spousal Support Orders. 44 Conduct Order.. 45 Annulment. 46 Costs. 46 Introduction [1] The principal issue in this matrimonial proceeding is the parenting arrangements for the parties' four-year old daughter, K.

The parenting arrangements will inform the outcome of the claims for spousal and child support. [2] As well, the claimant asserts there are remaining property issues outstanding, including the buy out of her interest in the former matrimonial home and the wrongful retention by the respondent of her jewellery. The respondent says all major property issues have been dealt with either by Minutes of Settlement executed by each shortly following their 2013 separation (the "Minutes"), or by the order of Mr. Justice Groves in 2015. He contends that he is entitled to compensation for the plaintiff's undisclosed RRSP, airfares he paid for her parents prior to separation and legal fees she charged on a joint credit card. [3] Mid-trial, I granted an amendment to the pleadings allowing the claimant to seek a declaration of nullity, as opposed to an order of divorce, because the respondent was married at the time of the marriage ceremony the parties underwent in India in November of 2008. The respondent concedes such is the case, and acknowledges he did not have the legal capacity to enter into marriage with the claimant. Background [4] The claimant is 35. She was born and educated in India and has a Masters degree in microbiology. She worked in India prior to her marriage to the respondent in 2008. Shortly after her arrival in Canada, the claimant found employment in quality control in the

food industry, and worked at Vanderpol Food Group until she was laid off shortly before the trial's commencement. She has been unemployed since. [5] The respondent is 41. He too was born in India, but immigrated to Canada in 1996 and has underwent several years of post-secondary education in Canada. He works in the financial sector. Currently, he works as a bank manager and earns in excess of $120,000 annually. [6] The parties married in 2008. Their marriage was arranged. Information was exchanged between the parties or their families through biographies shared over the Internet. The respondent's biography did not refer to his earlier marriage, let alone the fact he was not legally divorced. The claimant says she was unaware that the respondent had previously been married and only learned after separation that the respondent's divorce had never been perfected. The respondent testified he believed he was legally divorced when he married the claimant. He testified that his sister prepared the online biography, which described him, as 'single' and that he never read it. [7] The claimant arrived in Canada in the spring of 2009 and began work in the fall of that year. In the early years of the marriage, they travelled, socialized and, according to the respondent, had a good marriage subject only to minor, periodic disagreement. The claimant holds a different view. She testified that

problems arose immediately upon her arrival in Canada in May 2009. I shall come to her concerns shortly. [8] Through a combination of their hard work, the parties prospered economically; they ended up, ultimately, with a home in South Surrey where they lived until separation in late 2013. [9] Months before their separation, the claimant gave birth to K., who was born prematurely by caesarean section. At or near the time of K.'s birth, the claimant's parents came to stay with the parties. [10] In contrast to the respondent's view, the claimant testified the marriage was unhappy from the onset. She testified that the respondent was dismissive of her needs for vegetarian Indian food and her adherence to traditional Indian medicines, and that he controlled her. She said he did not display affection for her and she felt unloved. [11] She learned of his earlier marriage through reviewing photographs on the home computer; not from the respondent. Later, following K.'s birth, she said he was dismissive of her views on natural medicines and homeopathic medicine and interacted rudely with her parents who came to visit shortly prior to K.'s birth. [12] She claims he gave her genital herpes, which he denied. Prior to K.'s conception, the claimant says the state of their marriage had deteriorated to the point they were sleeping in different rooms and that her pregnancy was a result of

non-consensual sexual relations. The respondent also denies that allegation. [13] The respondent says the beginning of the marriage's demise was the birth of K. coupled with the arrival of the claimant's parents and the effect the claimant's parents had on issues of parenting. [14] Thereafter, he says the claimant fell under their influence respecting the use of herbal remedies and homeopathic remedies. He says he felt this threatened his daughter's well-being, and led to conflict between the parties and between the respondent and his in-laws. [15] They separated shortly after K.'s birth. Their divergent approaches to parenting and the amount of time the respondent was to spend with K. led to the involvement of police, the Ministry of Children and Family Development, and the courts. [16] Following separation in late 2013, matters began on a promising note with the execution of the Minutes in early 2014 following a four-way meeting involving the parties and their lawyers. The Minutes seemingly resolved the parties' property issues and instituted a regime of parenting by the respondent, albeit a regime not expected to endure indefinitely given K.'s age. The parenting regime, recognizing K.'s tender years at separation, called for a review of the respondent's time with K. at a JCC scheduled for May 2014. [17] Prior to the JCC, disputes arose including a dispute over driving

obligations respecting K.'s transport between the parties' residences, and over the price the respondent was to pay the claimant for her interest in the former matrimonial home. These disputes eventually led to a contested court appearance in 2015 before Groves J. Other applications were made in the period between separation and trial. I will note those which have some bearing on the outcome. [18] Mr. Justice Groves made a number of orders, including: the price the respondent was to pay the claimant for her equity in the former matrimonial home; a compensation payment in respect of furnishings remaining in the former matrimonial home; the parenting time of K.; the conduct of the parties' at exchanges; and child and spousal support, both prospective and retroactive to the commencement of the action. [19] The respondent says the resultant order resolved all property matters with finality; the claimant disagrees. [20] The issues of K.'s "permanent" parenting regime, parenting responsibilities, and support issues remain outstanding. The Minutes of Settlement, combined with the Groves J. order, addressed interim arrangements but were never intended to address K.'s long-term needs. [21] Following separation, the claimant moved to Abbotsford. She was on maternity leave until the fall of 2014. [22] Despite the Minutes, contact between the respondent and K. was problematic from shortly

after their execution. The respondent's parenting time was interrupted by incidents that resulted in denial of his parenting time as per the terms of the Minutes. [23] The claimant sold her car and did not immediately replace it with the result she expected the respondent, contrary to the terms of the Minutes, to transport K. both to and from her residence so as to exercise his parenting time. [24] The respondent, after complying initially with doing double duty on transfers, later kept K. overnight in contravention of the Minutes based on a rationale that it was the claimant's obligation to retrieve her at the end of the visit. His failure to return K. led to police involvement ultimately resulting in a disruption of the respondent's parenting time. This was despite the respondent's assurance to police and to the claimant that he would drive both to and from his scheduled visits and comply with the schedule in the Minutes. [25] The police also attended with the claimant at the former matrimonial home to allow the claimant to retrieve her possessions sometime in the spring of 2014. [26] In June 2014, the claimant applied for and obtained court permission to take K. to India for an extended visit over the summer of 2014. She refused the respondent's request for make-up time in advance of the trip, and did not return the respondent's calls and texts until she was at the airport

with K. The trip lasted two months from mid-July to mid-September. The respondent was allowed some contact with K. via Skype, but her young age made such unsatisfactory from the respondent's standpoint. [27] The claimant and K. returned without incident and the claimant resumed work at the conclusion of her maternity leave. [28] Whilst in India, the claimant commenced an action under Indian law seeking remedies against the respondent and his family for maltreatment while in Canada, bigamy, and unlawful demands for dowry prior to the parties' marriage taking place. The action remains outstanding in India; one of the reasons advanced by the claimant to provide for an order allowing her to take K. to India in December of 2017 for another extended visit was the advancement of the Indian proceedings against the respondent. [29] The parties were not always represented by counsel as this proceeding made its way to trial. Sometimes both were represented; sometimes just one and, on occasion, neither. [30] One of the subjects addressed in the Minutes was the purchase of the claimant's interest in the former matrimonial home by the respondent. The parties were to obtain a joint appraisal and then, after certain agreed deductions, the respondent was to pay the claimant one-half the equity. [31] A joint appraisal opined that the home's value was less than the assessed value, with the result

the claimant disagreed as to the price and was unwilling to proceed with the transfer. Such resulted in the omnibus application before Groves J. in October of 2015. [32] Amongst the orders made was an order that the respondent pay the claimant $113,885 for her interest in the former matrimonial home (and thereafter a transfer of her interest in it to the respondent). An order was made directing the respondent pay off the joint debt associated with the financing on the property or, alternatively, the house was to be sold with joint conduct of sale. Other orders were made respecting other property matters, specifically: RRSP division and a compensation payment for the respondent's retention of certain furnishings, which remained in the home. [33] No mention was made of jewellery at the 2015 hearing. [34] The respondent complied with the order to buy out the claimant and the home was transferred into the respondent's name alone. The claimant appealed that portion of the order to the Court of Appeal. More will be said later in these reasons regarding the appeal. [35] Other orders included variation of the earlier parenting arrangements and implementation of a regime of supervision to oversee K.'s exchange. The cost of the supervisor was to be shared by the parties. Such was the result of the parties' mutual complaints directed against the other of them respecting their conduct at

exchanges. The Groves J. order contained a provision prohibiting videotaping at exchanges and posting of such on social media. [36] The existing support terms, both child and spousal, were varied retroactively and prospectively, premised on the claimant's then income of $45,000 per annum, and the respondent's then income of $100,000. [37] Further applications came before the court respecting the respondent's wish for 10 days of vacation time with K. and the preparation of a Section 211 report in advance of the 2017 trial date. The claimant opposed both, agreeing only that the respondent could take K. to Seattle for several days; not the more extensive trip sought by the claimant. [38] Master Caldwell ordered that the respondent have 10 days of vacation time and granted the respondent permission to take K. outside the country. He ordered the claimant to provide a travel authorization within five days of the order's pronouncement; the claimant failed to comply. A travel authorization was not provided. [39] Finally, Master Caldwell ordered the preparation of a Section 211 report by Dr. Michael Elterman. [40] Intermingled between court appearances are incidents between the parties too frequent to document. Those incidents reflect the level of distrust each has for the other. [41] Briefly, each accuses the other of failing to advise of medical conditions K. has experienced; the

giving or not giving of required medications; failure to properly interact with daycare providers who provided K. care; failing to report injuries K. suffered whilst in the care of the other party; and intimidation at exchanges. [42] Some of the conduct complained of was the subject of court applications and resultant orders; some was not. [43] On the whole, what they demonstrate is the poor communication skills of the parties and an underlying failure to appreciate the need to cooperate with one another to further K.'s best interests. Neither party is blameless, in my view, for the mistrust that exists between them. Having said that, each I find is motivated, in the main, by what they genuinely perceive as their daughter's needs. [44] In January 2017, the claimant lost her employment. She received some severance pay, and then applied for and began receiving Employment Insurance. [45] The Section 211 report was completed in the early part of 2017 in advance of the April trial date. It opined, generally, that the parties should share parenting time more or less equally and that the respondent should be the parent exercising the parenting responsibilities in the event of disagreement. [46] The respondent, at the trial's onset, sought implementation of the recommendations contained therein. By trial's end, the respondent sought primary care of K. [47] The claimant, despite the

report's conclusion that shared parenting was in K.'s best interest - an opinion contrary to her views - did not require Dr. Elterman for cross-examination. Her position is that the respondent's parenting time ought to be reduced from the current schedule ordered by Groves J. [48] Throughout, the parties have been in conflict over K.'s medical treatment, exchanged angry texts and emails with accusations of misconduct, failed to honour orders or agreements relating to parenting time, and demonstrated unfailing mistrust in the other parent's intentions and actions. [49] Although both have at times acted inappropriately and lost sight of K.'s best interests, I have no doubt that each is a good parent with much to offer K. Each loves her and that love is the driving force behind their conflicting views of what best serves her interests. [50] The Section 211 report's author Dr. Michael Elterman opined, and with this I agree, that each brings something different to K.'s life and the diversity of their respective approaches is a positive in K.'s nurturing; it is not a detriment. [51] The Indian proceedings remain outstanding but do not involve claims that are duplicitous to those at issue in this proceeding. The claimant is intent on seeing the action through until its conclusion and it remains a source of friction between the parties as they move forward with K. here in

Canada. Position of the Parties [52] The claimant opposes the recommendations of shared parenting expressed by Dr. Elterman in the Section 211 report filed with the Court, and seeks a reduction, rather than expansion of the respondent's time with K. [53] She provided a four-week template which would effectively have the respondent pick up K. after school on Friday afternoons of alternating weekends, dropping her back off at school on Monday morning. Further pursuant to the template, on two Wednesdays during the four-week period the respondent is to pick K. up after school and return her to the claimant sometime prior to her bedtime. [54] She seeks sharing of Christmas holidays in two equal weekly blocks and proposes a two-week period set aside for each parent to provide for summer vacation. [55] With respect to the many religious festivals that occur throughout the year, she suggests that each simply keep K. on their prescribed dates. The claimant suggests such will allow the parties to plan for such when K. is with them or arrange for 'their own separate celebration' when the festivals or holidays fall on a day when K. is in the care of the other party. [56] She wishes K. to attend school in Abbotsford and she has made inquiries with the local French immersion school. K. will commence kindergarten in September 2018. Subsumed in her desire to place K. into the Abbotsford school

system is the proposition that the claimant is best suited to make final decisions respecting K.'s well-being. [57] With respect to property matters, she wishes to revisit the sale of the South Surrey home to the respondent or, at the very least, the price she was paid for her interest in it. She argues that Groves J. was in error when he set the price at $800,000 - some $5,000 below the 2015 assessed value - and further seeks the return of jewellery she says the respondent has in his possession which is rightfully hers as per the Minutes. [58] She seeks child and spousal support based upon the premise that she will be the primary caregiver to K. and have K. over 60% of the time, thus resulting in support premised on the parties' current incomes pursuant to both the Federal Child Support Guidelines, S.O.R./97-175 [FCSG] and the Spousal Support Advisory Guidelines [SSAG]. [59] She seeks adjustments to the order of Groves J. retroactively to deal with increases that the respondent has enjoyed to his salary since 2015 and the loss of her employment income in early 2017. She remained unemployed at trial. [60] For assessing her contribution to Section 7 expenses and for determining the quantum of spousal support, she made no suggestion as to what income, if any, I should use for her. She is seeking work in her chosen field of food inspection and safety, but has been doing so since

January 2017 without success. She has not sought opportunities outside her chosen field despite the considerable period of unemployment. Nor has she sought to update her credentials or have an assessment done of her Indian degrees to provide prospective employers with the Canadian equivalency of her training. She has declined assistance from the respondent, who offered information on a contact person who might advance her employment prospects. [61] She also seeks an open travel permit that would allow her to travel without the respondent's consent to India for the purposes of visiting her extended family, all of whom remain there. [62] Finally, the claimant seeks a conduct order that, she argues, is necessary based on evidence that discloses that the respondent has exhibited aggressive and violent behaviour towards her. She seeks a protection order that, although not precisely articulated, would provide for no contact between the parties save for email on a continuous thread. That email would only relate to matters involving K., and not any personal matters as between the two of them. [63] The respondent seeks primary care of K., arguing that he is the better parent based on the totality of the evidence. Alternatively, he suggests implementation of the report of Dr. Elterman, whose recommendation is shared parenting based on a 3-day on/4-day off schedule or alternating week

on/week off. Such, according to both Dr. Elterman and the respondent, would have the positive effect of minimizing transfers between the parties and provide for more consistency in K.'s life than is apparent on the present schedule. [64] He, too, seeks a division of holidays, which would entitle each party to travel, albeit he is opposed to any carte blanche travel permit allowing the claimant to travel beyond Canada's borders arguing that India is not a signatory to The Hague Convention. He argues that the claimant presently has no particular attachment to British Columbia, and may have less so in the event that she is not successful becoming K.'s primary parent on an ongoing basis. [65] With respect to property issues, he says all have been resolved save for two pieces of jewellery in the possession of his parents. He says his parents are prepared to return the two pieces of jewellery in their possession to the claimant, but "they have not been asked for". [66] He argues that the order of Groves J., when combined with the Minutes, provide for a full and final resolution of all property matters save for those two pieces of jewellery and that the Court, in particular me, has no jurisdiction to upset that division. [67] Finally, the respondent says he is entitled to a lump sum payment of approximately $10,000 representing his share of the claimant's undisclosed RRSP and pension,

airfares incurred for the claimant's parents while the parties were together, credit card debt owed by the respondent at separation, and charges on the respondent's Visa for legal advice sought by the claimant prior to separation. [68] With respect to matters of support, the respondent acknowledges the issue of child support will reflect the parenting arrangement and my determination as to what, if any, imputation of income I make to the claimant. [69] On the question of imputation of income, he argues the claimant should be imputed an income of $54,000. He based this on her historic income with Vanderpol, coupled with statistical information provided by Mr. Carson, an economist, detailing that somebody with the claimant's qualifications could reasonably expect to earn $65,000 annually based on Canadian statistical information. He argues the median of those two figures is an appropriate imputed income, although he does not suggest when such should begin. [70] Further, he argues that while child support will obviously be based on the respondent's actual income, for considering spousal support, the income of the respondent should be set at what it was when the parties married - $67,000 - as opposed to its current level of approximately $126,000. He argues that the resultant changes in his income since the separation has everything do with his self-betterment through the upgrading

of his qualifications and nothing to do with roles assumed during cohabitation. Credibility of the Parties [71] Each of the parties presents very different versions of the factors that might influence the parenting plan each suggests is in the best interests of K. [72] At the outset, I note that at various times each of the parties, and to some extent witnesses called by them, have been less than objective in presenting their evidence as to "facts" as they recall them. [73] The parties, in particular, have viewed their own conduct through rose-coloured glasses while, at the same time, overstated, exaggerated or wholly misconstrued the actions of the other. [74] While such is not uncommon in family law proceedings, here the conflict has caused a schism between the parties with a resulting distrust that will be hard to overcome. If the parties have not taken a parenting after separation course, I order each to take one as a condition of the parenting orders I make. [75] In summary, the claimant depicts the respondent as abusive, aggressive, and manipulating from the onset of the marriage, but more particularly so during the later stages following K.'s birth. She accuses him of bullying her in her dealings with him post-separation, mainly in relation to K. [76] Through her cross-examination, the claimant pointed out what she characterized as parenting deficiencies of the

respondent including an inability to recognize and address K.'s medical and dietary needs. I conclude she does not think much of his parenting skills, and that is reflected in her proposed parenting plan. [77] Without her having stated it in so many words, I cannot help but be left with the impression the claimant believes K. to be less safe with the respondent than when in her care. [78] The claimant suggests that the respondent, or someone on his behalf, stalked her post-separation and that he acted inappropriately at exchanges to eventually require supervised exchanges as directed by Groves J. in October 2015. Those eventually ended because of the inconvenience and cost. It was the claimant, not the respondent, who ended the third party involvement. [79] The respondent denies he was abusive during cohabitation or after separation. Instead, he feels that he is the victim. He recounted the extensive difficulty he has experienced trying to gain parenting time and what he viewed as the claimant's ongoing lack of communication as to matters that affect K.'s well-being. The presence of his female friend at exchanges was, in his mind, a matter of self-protection from the allegations that arose from the exchanges rather than designed to intimidate the claimant. [80] Such led to him having a video cam on his dash to record the exchanges until the order of Groves J. prevented further

videotaping. [81] He testified K.'s care in his home is exemplary and that the relationship between himself and his daughter is a good one. Ms. Brar, who is a friend and business associate, supported his evidence. He referenced observations in K.'s medical records that opine that K. seems more comfortable in his care than that of the claimant. [82] The respondent questioned the claimant's judgment in a number of areas including what he perceives as her refusal to share pertinent information with him about K.'s health concerns and accidents which have occurred (in both their homes) where K. received minor injuries. She changed K.'s daycare provider following an instance where the respondent asked the daycare provider to administer medications to K. without informing the claimant that he had done so. [83] Both perceive that any action undertaken by the other of them is done maliciously and without regard to what is best for K. [84] According to one witness, Ms. Brar, K. spontaneously reported physical abuse by the claimant - that she slapped K.'s face. Ms. Brar went on to say that she had witnessed exchanges where K. was brought to an exchange with soiled diapers and inappropriate clothing having regard to the weather. [85] The claimant's parents both testified as to the respondent's aggressive behaviour towards them and the claimant during the several months in 2013 they all

resided together. [86] I deal firstly with the evidence of the claimant. [87] The totality of the evidence, including the inconsistencies in the claimant's testimony from her discovery to trial, documents, most email and texts between the parties, and the absence of specifics from Dr. Elterman about some of the claimant's complaints lead me prefer the evidence of the respondent, in the main, to that of the claimant. [88] There was no disclosure of her RRSPs or employer funded pension in either of the claimant's first or second Form 8 financial statements. [89] Her assertion that the marriage was unhappy from the outset is belied, somewhat, by a series of historical photos depicting travel and social occasions. Further, and contrary to the claimant's assertions, photos depict examples of her eating meat and drinking alcohol; both are contrary to her evidence as to her religious beliefs and dietary habits. [90] Assertions such as the one made concerning the empty fridge in the respondent's residence when she first arrived from India are belied by the evidence. Credit card records produced by the respondent show extensive shopping done at a Canada Safeway either the day of or the day following her arrival. [91] Another area where the claimant was less than candid, albeit wholly unrelated to the issue of parenting, concerns her appearance on a community based cable program wherein

she relayed on the show she was not fed on the first day of her arrival in Canada. [92] Quite apart from whether that assertion was true - and I find it was not - the claimant denied being on the show in question despite extensive reference to it on her Facebook profile. [93] Further, the claimant filed pleadings in the Indian "dowry case" which contain allegations going well beyond that which she testified to in court and clearly demonstrate a willingness to exaggerate. Admittedly, those allegations were not made under oath in this proceeding, but they are serious. One of the consequences for the respondent is possible imprisonment upon his entry into India. [94] One of the claimant's stated reasons for wanting to return to India with K. was to pursue the case in India that, apparently, requires her personal attendance to move forward. [95] I agree with the respondent's counsel that the case initiated in India post-separation and based, in part, on events said to have pre-dated the marriage (the dowry demands) makes little sense given the parties together visited India in 2011 and the claimant made no complaint to her parents concerning what she now describes as the harshest of conditions. [96] Nor did the claimant, having learned by 2011 of the respondent's previous marriage, seek to remain in India with her parents; that was something she readily could have done in view of

what she says regarding the conditions she was subjected to while living in Canada with the respondent. [97] The claimant testified that she had told the respondent of certain medical events in K.'s life, in particular, her iron deficiency discovered in January 2015, and the change in family doctors from Dr. Eleazar to Dr. Sandhu. Such is completely at odds with her testimony under oath at discovery. [98] Similarly, I find her evidence concerning her agreement to the respondent's proposed travel plans to San Diego to be at odds with her position set out in the affidavit she filed in opposition to the planned trip. She suggested two or three days would be sufficient time for K. to vacation with the respondent, overlooking, it would seem, the two months she had K. in India in 2014. [99] She then failed to comply with the requirement in the court order to provide the necessary travel authorization in five days because, she said, no notary or lawyer was available to witness her signature. I simply do not find that assertion credible. [100] The claimant, despite emails shown to her that were completely at odds with her recounting of events, maintained she was co-operative with the respondent in his efforts to see K. In fact, there are several incidents where the claimant denied the respondent scheduled parenting time: the first following the incident where he kept K. overnight when

she failed to retrieve K. as per the Minutes; and another when she claimed he didn't have a proper car seat to transport her, which turned out to be unfounded. [101] As to the first incident in the spring of 2014, she sold her car during that period. This was without arranging for a replacement vehicle for reasons not made clear, despite the Minutes requiring her to pick up K. after exchanges. She notified the respondent of her inability to comply with the Minutes shortly before a scheduled visit despite the fact the car was sold days before. [102] There was no good reason for the sale of the car she drove or why she did not arrange for alternative transportation prior to giving up possession of it. [103] The respondent eventually kept K. overnight resulting in a report to police. Thereafter, the claimant withheld K., insisting the respondent come with the RCMP and give assurances that he would then assume responsibility for the return of K. despite the fact the obligation was hers. [104] The claimant made no effort to negotiate a change to the provisions in the Minutes respecting travel, either through discussion or through court application, yet insisted on the respondent doing all the driving associated with the parenting schedule. [105] She did not obtain her own transportation again until the fall of 2014 after her return from India. [106] The claimant testified that K.'s

birth was because of non-consensual sexual relations yet she never reported that fact/allegation to Dr. Elterman, nor did she mention to him some of the physical abuse she testified occurred during cohabitation. Both, I consider, were allegations the claimant knew would have some impact on the resulting report. [107] The respondent, for his part, was less than candid about his marital status having made no mention of his previous marriage. Absent evidence from the alleged author, his sister, that she prepared the biography without showing it to him, I conclude he was aware of the non-disclosure. However, I am not prepared to conclude he was aware of his legal incapacity to marry the claimant. [108] Further, in his disclosure of recordings he made of the transfer of K., prior to the order prohibiting same, he produced only those which he felt displayed him in a good light or the respondent in a bad light until ordered during his testimony to produce the entire collection of digitalized images. [109] He provided the daycare with medication to provide K. without informing the claimant he had done so. I do not accept the proffered explanation as to why he felt such was necessary given the potential problem of K. receiving too much medication because the claimant was unaware the daycare was administering doses during the day. [110] On occasion, he ignored reasonable email requests

from the claimant including some pertaining to funds that he was to pay, whether for daycare or other proper expenses. [111] The respondent ignored the claimant's reasonable request to exchange a diary concerning K., explaining he had only been given a book with blank pages and not a diary. [112] Each, as I noted earlier, has escalated the level of mistrust by actions they have taken to foster the ongoing enmity between them without regard to the best interests of their daughter. [113] The evidence of the claimant's parents, while supportive of some of her accusations, are mainly indicative of a heightened level of discontent and lack of mutual respect. The allegations they make about aggression in the respondent's behaviour have to be seen in the context of my scepticism, and some outright disbelief, of the claimant's narrative. [114] Similarly, the evidence of Ms. Brar, the respondent's co-worker, while helpful in corroborating the opinion of Dr. Elterman as to the respondent's parenting style and the bond between him and K., was problematic when it came to her criticisms of the claimant. [115] Ms. Brar testified that K. disclosed the claimant had slapped her across the face and, when asked in cross-examination whether she was certain the disclosure was made prior to her consultation with Dr. Elterman, she replied in the affirmative. [116] There is nothing in Dr. Elterman's

report suggesting he was told by the respondent, or Ms. Brar whom he interview as a collateral, that there was a disclosure of physical violence. Nor was the matter ever brought to the attention of the Ministry. [117] Hence, I am sceptical of the evidence of disclosure of abuse by K. at the hands of the claimant. Section 211 Report [118] The respondent sought and ultimately obtained an order of the court providing for the preparation of a report on the matter of the guardianship and parenting of K. pursuant to s. 211 of the Family Law Act, S.B.C. 2011, c. 25 [FLA]. Dr. Elterman was the author. He prepared the report and delivered it in mid-January 2017. [119] It sets out the materials reviewed by Dr. Elterman and the persons to whom he spoke as collaterals. He spent time with both parents, administered psychological testing to each, and spent time in the home of each observing their interactions with K. As importantly, he observed K.'s response to the stimuli offered by each parent. [120] Of note, he opined that the claimant was "likely more angry with [the respondent] than she recognizes herself". Such accords with my view of the claimant's presentation and her focus on the respondent's negative qualities rather than accentuate the positive he brings to K. through a different parenting style. [121] Dr. Elterman reviewed, and then commented on, the various concerns expressed by

each of the parties in their evidence before me; specifically, he reviewed the claimant's concern that the respondent is aggressive, manipulating and controlling. [122] The respondent complained to Dr. Elterman that the claimant is unwilling to share parenting responsibilities of K. and makes poor parenting decisions respecting K. that, ultimately, are to the child's detriment. [123] Many of the complaints he received were repeated in court under oath by the aggrieved party. These included complaints concerning K.'s medical care and the difficulties that occurred in the parenting arrangements. He noted the significant communication breakdown between the parties. [124] The claimant, when interviewed in the modest basement suite she occupied, failed to mention to Dr. Elterman that she had purchased a home with her mother. This illustrates her unwillingness to share material information with an independent assessor. [125] The parties' divergent views as to the extent of K.'s need for medical intervention and the nature of the treatment stem, to some degree, from their differing cultural perspectives. The claimant, from shortly following K.'s birth, was a proponent of homeopathic remedies and traditional Indian use of spices for treatment of minor maladies. [126] The respondent expressed scepticism about the claimant's preference for homeopathic remedies - both for K. and herself.

Specifically, he was skeptical of the use of what I will refer to as a "smoke pot" used indoors to control bleeding following the claimant's caesarean section delivery, and the administering of a combination of spices and herbs following K.'s birth to deal with or avoid perceived problems with her development following birth. [127] The respondent adopts a more scientific approach to the medical needs of K., albeit he stated he was not opposed to homeopathic remedies if approved by a medical practitioner and used to augment - not supplant - required prescriptive medications. [128] In his interview with Dr. Elterman, the respondent advanced a view that shared parenting would best suit K. He resiles from that somewhat in his submission to the Court, suggesting that the evidence as it unfolded proves him to be the superior parent who should primarily look after K. [129] Dr. Elterman, for his part, noted the following which accords with my view of the parents generally: In my observation of the child in each home, I found that they are both loving, caring and involved with the child. I found that Mr. Bhupendra was more communicative and expressive with K. but that the child was equally happy with her mother and father. I think that it would be a serious mistake to over-value routine beyond the child's attachment to both parents. I thought that the idea of the child seeing one of the

parents for the weekend every 2 weeks is a misjudgment of K.'s needs. The parenting plan proposed by Mr. Bhupendra is substantially more congruent with what I perceive to be the child's best interests. The child's routine would simply be to spend half a week with each parent and I don't see that she needs any more routine than this. The idea that she would need to stay in one home and visit the other home is less important than the child's having a relationship and strong attachment to both parents equally. I would recommend that the parents share joint guardianship and parenting responsibility but in the event of an impasse that Mr. Bhupendra have the deciding vote. The reason is because I see him as more rational, less motivated by anger and more in touch with the child's needs to have 2 parents. [130] Dr. Elterman then went on to suggest a routine which would provide for: · K. to be with the respondent from Sunday morning until 8:30 on Wednesday morning; · K. to be with the claimant during the remainder of the week; and with · each parent to have a 10-day period in July and August for their separate time; and · the parties to alternate school holidays on a year-to-year basis. [131] He also suggested the implementation of a diary to be exchanged between the parties that would inform the other of them of all matters of note in K.'s life. This would include concerns relating to

K.'s health, including medication she is taking, any medical or other appointments, as well as her educational progress as that becomes more of an issue. [132] I say that the report of Dr. Elterman accords, generally, with my views after observing the parties and listening to their evidence over the course of three weeks of trial. I also note that the claimant seems far more invested in the ongoing dispute between herself and the respondent than does the respondent; the respondent's presentation of evidence included a wealth of information about his interaction with K., while the same cannot be said for the claimant. [133] While recognizing the claimant was unrepresented and perhaps misunderstood the need to present evidence as to the nature of her relationship with K. and the care afforded her, the claimant's evidence was noticeably devoid of such information. That was until she was prompted by the Court to explain K.'s day-to-day life while living with the claimant, including what activities she is engaged in, and her routine in the neighbourhood in which she resides. Even then, the information she imparted was somewhat superficial. Parenting Arrangements [134] The FLA governs parenting arrangements and parental rights. [135] The overarching concern driving the conclusion is K.'s best interests. The parents' views on parenting are helpful only insofar as they recognize that

objective. [136] I have the advantage of the Section 211 report prepared by Dr. Michael Elterman and the recommendations contained therein in concert with the oral evidence of the parties, other witnesses, and video presented, all of which assists me in my determination of the proper result. [137] The considerations I am obliged to consider in concluding what best serves the child's interest are enumerated in s. 37 of the FLA, which reads as follows: 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. The Child's Health and Emotional Well-Being [138] K. has had health issues in the past. She has been described as underweight, has had an iron deficiency, some digestive system problems, notably constipation, and a variety of minor child appropriate injuries: burns, squirrel bites, and infections picked up

at daycare. [139] Health concerns do not drive the prospective parenting scheme. Both parents have acted appropriately, if not co-operatively, in addressing health concerns as they have arisen. [140] As to K.'s emotional well being in the care of either parent, I need look no further than the observations of Dr. Elterman, who noted the warm loving relationship between each of the parties visible to him from his home visits to each household. The Child's Views [141] K. is too young for her views to play a role in the decision as to parenting time, save to say that the evidence makes clear she is well bonded to each of the parties. The Nature and Strength of the Relationship between K. and the Parties [142] The Section 211 report makes clear that K. is strongly connected to each of her parents although the report, together with observations contained in the records of Dr. Sandhu, make clear that she seems happiest and most carefree in the care of the respondent. Video presented by the respondent makes clear the bond between him and K. and leaves me with no doubt that he is an able and caring parent. [143] I should also make clear that K. appears well connected to the respondent's extended family whom she sees frequently while in his care. Given expanded time with K., the respondent will no doubt increase K.'s time with cousins, aunts and uncles, and her paternal

grandparents. [144] The respondent's mother, K.'s grandmother, has apparently agreed to assist the respondent with K.'s care while he works. I consider, in the circumstances before me, the presence of extended family in K.'s life to be beneficial to her. The History of Her Care [145] Since birth, K. has been predominantly in the care of the claimant despite the efforts of the respondent. K.'s Need for Stability [146] Dr. Elterman discusses the claimant's perception that the current schedule offers too much uncertainty and that K. experiences stress by not knowing which of her parents will pick her up at the day's conclusion. That concern can be addressed by reducing the number of transfers rather than restricting the contact of one or the other of the parents. I agree that longer continuous periods in the care of one parent will address this concern. The Ability of Each of the Parties to Exercise Parental Responsibilities [147] Each of the parties is well educated, well motivated, and capable of fulfilling all of the duties associated with parenting this young girl. [148] Each brings a different parenting perspective to K.'s care: the claimant by stressing K.'s cultural connections; the respondent through creatively expanding K.'s horizons through engaging her in learning activities as well as physical activities such as skating. [149] Their shortcomings are in the area of

communication and trust. Hopefully, time and experience will overcome the upset both still feel over their broken marriage and lead to more co-operative parenting in the future. The Impact of Family Violence [150] Despite the assertions of the claimant, I find no evidence to support that the respondent is or was violent towards the claimant or K. [151] Her evidence suggesting the respondent made as if to strike K. during the period the parties cohabited is simply implausible in view of the totality of the evidence pointing to the respondent's devotion to their daughter. [152] Similarly, I find the evidence of Ms. Brar unhelpful when she advised that K. told her that her mother had slapped her. She did not report the disclosure to Dr. Elterman despite Ms. Brar's testimony that the disclosure occurred prior to her interview with Dr. Elterman and, if so, would have been material insofar as his report was concerned. [153] Nor does physical violence towards K. seem a part of the claimant's make-up. She seems to be in control of herself, emotionally, and unlikely, in my view, to ever lose her temper in a manner leading to slapping K. [154] The respondent made no suggestion that he was aware of the claimant "over-disciplining" K. while K. was in the claimant's care. The Ability of the Parties to Cooperate Concerning Matters Pertaining to K.'s Well-Being [155] Neither party has

distinguished themselves as a party willing to cooperate with the other concerning matters affecting K. Her medical history and the role of each parent in failing to properly communicate with the other is the major example. As well, the claimant's unilateral actions concerning the change in K.'s daycare following her conclusion that the daycare administered antibiotics without telling her is another example of a failure to act cooperatively. The conclusion leads to the result that one parent shall have the decision-making ability in the event of disagreement. [156] The parties are encouraged to "up their game" when it comes to co-parenting K. to avoid the unhappy future of further court applications with possible long-term ramifications on the parenting regime. This is especially given that K. has just turned four and the parties have a long road ahead of them as co-parents. The Parties' Proposals [157] The claimant submits that a regime of alternating weekend parenting time with the respondent coupled with one afternoon weekly is best for K. [158] The claimant argues that the stability K. requires necessitates unflagging adherence to a consistent schedule with few transfers. [159] She says that the evidence demonstrates that the respondent is aggressive and confrontational and, on one occasion, threatened violence against K. when she was an infant. [160] She argues that she is

the preferred parent, but offers little to suggest that the bond between K. and the respondent is any less significant than with her. She offered no evidence suggesting K. lacks care, affection or the provision of necessaries when in the respondent's care. [161] She is dismissive of the views of other, more objective observers, such as Dr. Sandhu and Dr. Elterman; the doctors each offered observations attesting to the strong bond between K. and her father and that K. seems happy and engaged when with him. [162] In my view, the shared parenting arrangement proposed by Dr. Elterman is a sensible one. In view of the difficulty the parties have experienced historically in arranging for stress free transfers of K. from one to the other, I conclude K.'s interests will be best served with a week on/week off parenting regime. [163] Such will serve to reduce the travel time of the parties and K. A weekly exchange is appropriate given my view that the respondent is a perfectly fit parent who has achieved a strong bond with K. in the face of unwavering opposition from the claimant. [164] Hence, commencing the Saturday following release of these reasons, the parenting schedule will be from Friday at 5pm until the following Friday at 5pm. In week one, the respondent will have K. in his care; in week two, the claimant will have K. in her care. [165] Each of the parties will be entitled to

one two-week block of time with K. each summer. In year one, 2018, the respondent will have first option regarding the block of time and shall communicate it to the claimant before April 30, 2018. The obverse will occur in odd numbered years. In no event, unless the parties otherwise agree in writing, is K. to spend three consecutive weeks with either party. [166] The parties are at liberty to discuss and agree on other school holidays (as K. will be in Kindergarten presumably in the fall of 2019) or they may apply before me. [167] The claimant shall always have K. in her care on Mother's Day, regardless of whose week it falls on and the respondent shall similarly always have K. in his care on Father's Day. [168] The parties should agree on a formula for sharing other important dates such as K.'s birthday and religious holidays, be they Christian or Hindi. Failing agreement, there will be liberty to apply back before me. [169] The parties shall share the parenting responsibilities in s. 41 of the FLA but based upon a Joyce Model guardianship order with the respondent having the right to decide issues that are not agreed to; the claimant may apply to court for a review of any such decision if she feels such is not in K.'s best interests. For a period of two years following release of these reasons, I will remain seized of such applications. [170] I also direct that the parties

at the weekly exchanges shall exchange a diary or similar or web based program that will inform the receiving parent of any significant events that occurred over the week that K. has been in their care. Such events include, but are not limited to, any medical concerns, doctor's attendances, and, when appropriate, commentary received by the parent caring for K. from educators, coaches, etc. [171] Emergent incidents such as accidents or illnesses requiring immediate medical attention will be communicated to the other party immediately by text message. [172] Such communications should minimize the need for other modes of communication, namely email or telephone. In the past, such have been counter-productive to cooperation and provided a forum for the ongoing battle each parent has waged against the other. [173] As to the issue of K.'s school enrolment in 2018, it follows from the orders I have made that the respondent shall have the final say in determining the school she will attend. [174] As noted above, I order each of the parties to take a parenting after separation course if they have not already done so. Travel [175] The claimant, at the conclusion of the trial, sought leave to take K. to India for two months from mid-December to mid-February. I required her to bring a formal application. [176] I heard the application on November 30, 2017 and denied it with brief reasons. I

indicated I would expand on those reasons when I decided the matter as a whole. [177] I am sensitive to the vulnerable position of the claimant, brought to Canada in an arranged marriage. However, I am equally concerned that the claimant might avail herself of "self-help" given her limited ties to Canada, the lack of financial incentive for her to remain, and the result of these proceedings which is, no doubt, not what she hoped for. [178] The claimant has some modest equity in the property she owns together with her mother. There is little else financially tying her to Canada. [179] She has no job presently and, likely, will have less trouble finding employment recognizing her significant talents in India than in Canada. [180] India is not a signatory to The Hague Convention. The claimant has initiated proceedings in India against the respondent that could result in his imprisonment if not successfully defended. It is unclear what steps the respondent has taken, but the claimant testified part of the reason for her intended return to India with K. was to further those proceedings. [181] Given my findings, I have considerable concerns about the validity of the allegations. [182] The respondent's fear that the claimant will abscond with K. is not unfounded despite her earlier return to Canada following the 2014 court sanctioned trip. The claimant still had a significant

financial stake in the property in Canada, K. in her primary care, and a job she apparently liked. [183] None of those factors are currently in place. [184] In my view, it is appropriate, at least in the short term, to restrict the claimant's travel with K. to inside Canada. The plaintiff is at liberty to re-apply once she has established better roots in her community or can offer security sufficient to address the concerns regarding a potential flight risk. [185] In the meantime, the respondent shall be the parent in charge of K.'s passport. [186] I am seized of any application by the claimant to travel outside Canada with K. for a period of two years. Property [187] The only remaining issues pertaining to the parties' property are as follows: first, those dealt with by Groves J. in October 2015 - allowing for the purchase of the claimant's interest in the South Surrey home by the respondent at a price set by the court; second, the claimant's contention that the respondent remains in possession of jewellery of hers, described loosely as "wedding jewellery"; and third, the respondent's claim for compensation for various items. [188] As to the former, the respondent argues that the order of Groves J. is a final order leaving me no jurisdiction to deal with the sale of the family home or, more particularly, its price. [189] With respect to the issue of jewellery, save for two

items - earrings and a bangle which he says are in the possession of his parents - the respondent says that the claimant took all jewellery with her and nothing remains left in his possession. [190] In regards the home, the matter was settled in the Minutes. The respondent was given, by agreement, the right to buy the claimant's interest in the home at a price based on a formula contained within the Minutes. [191] When the parties could not agree on the accuracy of the appraisal, the property issue went to court on the narrow issue of the home's value. After hearing the parties, both unrepresented at the time, Groves J. dispensed what he referred to in his reasons as "very rough justice". [192] The resultant order, coupled with a reading of the transcript and reasons, lead me to no other conclusion but that the transfer of the home at the value found by Groves J. - $800,000 - was intended to be an implementation of terms contained in the Minutes and a final resolution of property issues save for the matter of chattels and RRSP division. Such were dealt with by way of a compensation order in the amount of $5,000. [193] The application made by the claimant for an interest in another property, agreed to be the respondent's alone in the Minutes, was dismissed. [194] After deducting the sums referenced in the Minutes, the claimant's net equity in the former matrimonial home was set

at $113,885 that the respondent paid to the claimant in conformity with the parameters contained in the reasons of Groves J. [195] In my view, such finalized the matter of the claimant's entitlement to a 50% share in the home equity given: (1) the Minutes; (2) a price determined by the Court; and (3) a timeline in which the respondent had to pay her or the home would be sold. [196] The claimant appealed. For whatever reason, she sought leave to appeal and appeared in chambers without the respondent appearing. The Court of Appeal, specifically Mr. Justice Frankel, advised that on its face it was not apparent whether the order was an interim order or final order and, given the trial had not proceeded, declined to grant leave to appeal. It is my understanding, perhaps an erroneous one, that the appeal was then abandoned. If so, the abandonment could, in my view, only have been in respect of the application for leave and not the underlying issue of whether a reversible error occurred which would cause the purchase price paid by the respondent to be re-visited. [197] Given the clear intention of the claimant to appeal the order of Groves J., it may well be she will be granted leave to re-file an appeal or extend the time to appeal the October 7, 2015 order if I am correct in my characterization of it as a final order which I cannot revisit. [198] As to the matter of the jewellery,

the claimant refers to a surreptitiously recorded conversation between herself and the respondent wherein he acknowledged there was jewellery in possession of his parents. He testified as to this and explained that it is two pieces of jewellery that had remained in India throughout, and not the jewellery that was contained in the parties' safety deposit box which is what the claimant refers to as the "wedding jewellery." [199] Based on the maxim he (or in this case she) who asserts must prove, I am unable to conclude that the respondent, or his parents, have the wedding jewellery in their possession. I say so for the following reasons. [200] An email sent by the claimant to the respondent as late as June 21, 2015 makes no mention of missing jewellery despite listing a variety of items she wished returned ranging from C.D.s to toiletries. [201] In early July 2015, she obtained a without notice order from Walker J. allowing her to retrieve her personal possessions from the former matrimonial home. [202] Before Groves J., the claimant, when asked by the court "by the way did you go to the matrimonial home and retrieve your personal belongings?" she replied "yes your Honour it was in July 2015". It is clear from the resulting order of Groves J. that she did not retrieve some of the furnishings. He made an order in that regard compensating her by way of a lump sum payment. [203]

However, in the extensive exchange between the claimant and the Court, the claimant never once mentioned the jewellery as being an item that was not returned to her. She did mention an extensive list of items, including a blender, which detract from her assertion that the respondent has significant jewellery of hers in his possession. [204] In submissions before me, when asked about the effect of Clause 8 in the Minutes which says, in effect, the claimant shall retain all furnishings, vehicles, jewellery and the like in her own name, she noted the jewellery was not specifically mentioned in the Minutes because they formed part of her "personal possessions". [205] It is acknowledged that the wedding jewellery, when not used by the claimant, was kept in a safety deposit box. The safety deposit box record of entry is unhelpful in determining whether the jewellery was removed for an event at which the claimant wore it, as suggested by the respondent, and then never returned to him so as to put back, or, as suggested by the claimant, he simply attended one day and removed it. [206] Given, however, the respondent's last attendance at the safety deposit box was over one year in advance of the claimant's surprise departure, I am not able to conclude that the respondent simply removed the jewellery and took it into his possession as a precautionary manner owing to the marriage's

collapse. I accept his evidence that the marriage breakdown arose from problems that began much later in the fall of 2013. [207] Hence, I am unable to conclude that the respondent is in possession of the claimant's jewellery save for the acknowledged pieces held by his parents. [208] I order that the respondent retrieve that jewellery from his parents and provide it forthwith to the claimant within 90 days. [209] If the respondent fails to deliver the items acknowledged by him to be in his parents' control, the claimant is at liberty to reappear before me and seek a compensatory order for the wrongful withholding of her jewellery. [210] As to the matters raised by the respondent - the credit card debt he paid, the airline tickets purchased, and the claimant's legal bills charged to the respondent's credit card - they are, in my view, subsumed by Clause 10 of the Minutes which expressly waives the entitlement by the respondent to seek indemnity for debt in his name at the time of execution of the Minutes, regardless of how the indebtedness arose. [211] The other claim, for a compensation order in respect of her RRSPs, is another matter. The evidence shows the claimant withdrew $9,712 from a previously undisclosed RRSP in 2016. [212] No documents were provided by the claimant which show its value at separation. The claimant's Form 8, sworn in July 2016 makes no reference to the

RRSP either as to its existence or disposal. [213] I conclude that the claimant should compensate the respondent for the disposal of the RRSP. [214] Given the amount she received was taxable, as the respondent's share would ultimately be if transferred via a spousal rollover under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), the fairest manner to deal with this property issue is to deduct the $4856 representing the respondent's interest in the RRSP from the retroactive spousal support payable to the claimant. Spousal Support [215] The respondent's line 150 income for 2016, the last available taxation year, is $126,637. [216] The claimant's income for 2016 is, in my view, irrelevant to the determination of prospective support, whether child or spousal, given her termination in early 2017. [217] Since January of 2017, the claimant has received either severance or Employment Insurance benefits. The later has likely expired or will soon. [218] The order of Groves J. set the parties' incomes at 45,000 and $100,000 for the claimant and respondent respectively in October 2015; support was ordered accordingly. Spousal support was set slightly above the low end of the range at $425 per month retroactively and $550 prospectively for 2015 until further order of the Court. The placement in the range resulted from the respondent's payment of family debt prior to his acquisition of the

claimant's interest in the former matrimonial home. [219] Child support was set as per the FCSG given K. was primarily in the claimant's care pursuant to the parenting regime put in place in the October 7, 2015 order. [220] The claimant seeks support calculated retroactive to the date of her termination, citing a material change in circumstances. She further argues support should be payable by the respondent on his current income, and not his income at separation or some lesser figure than he actually earns. [221] Entitlement to spousal support is opposed by the respondent who argues the claimant has not been economically disadvantaged by the marriage such that no further support is payable. [222] The relevant legislation is the FLA ss. 161-162, which read: Objectives of spousal support 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. Determining spousal support 162 The amount and duration of spousal support, if any, must be determined on consideration of the conditions, means, needs and other circumstances of each spouse, including the following: (a) the length of time the spouses lived together; (b) the functions performed by each spouse during the period they lived together; (c) an agreement between the spouses, or an order, relating to the support of either spouse. [223] The respondent argues, firstly, that the length of the marriage, coupled with the assertion that the claimant did not forego any opportunities career-wise, disentitles her to support. Alternatively, he argues the factors in s. 162 of the FLA militate in time limited support calculated at the low end of the range of the SSAG and using the respondent's salary as at 2014 as his income for support purposes. [224] With respect, I disagree with both propositions, although I agree a time for review should be set. [225] The claimant's entitlement to receive spousal support contains both compensatory and needs based components: See Moge v. Moge, [1992] 3 S.C.R. 813; Bracklow v. Bracklow, [1999] 1 S.C.R. 420; Chutter v. Chutter, 2008 BCCA 507. [226] While not the traditional homemaker who gave up career opportunities to fulfill the role of homemaker and

caregiver to the parties' child, I find the claimant sacrificed much to come to Canada. Prior to her immigration, the claimant had established a career in India with aspirations, possibly, to advance her academic credentials beyond the Masters Degree she earned in India. [227] Her prospects are significantly diminished by her immigration to Canada and the consequent impact on her career trajectory. [228] While I accept that the claimant has not done as much as possible to gain accreditation for her Indian degrees, I am satisfied that her vocational path has been negatively impacted by her move to Canada. [229] Further, the disparity in their incomes, coupled with the imbalance in the parenting of K. for the first four years of her life, have contributed to the disparity in their present earning capacities to the detriment of the claimant and advantage of the respondent. [230] In noting the disparity in parenting time, I am cognizant of the respondent's long-standing desire to equalize K.'s parenting time as between him and the claimant. Nonetheless, the claimant has borne a disproportionate burden of the parenting time since K.'s birth with the resultant adverse effect on her financial prospects. [231] As to the respondent's income, he suggests that for spousal support his income be declared something less than his actual income given the training and job advancement which has

come after separation. He argues such cannot be attributed to any contribution by the claimant and, therefore, should be beyond her reach. In support, the respondent references Judd v. Judd, 2010 BCSC 153, as to his salary increases since separation and Walker v. Maxwell, 2015 BCCA 282, in respect of his submission that his bonus should not be included in the determination of his income for spousal support purposes. [232] Dealing firstly with the question of the inclusion of the respondent's bonus, I note in Walker the bonus was discretionary and described as a "potential bonus". The trial judge declined to include an amount for the bonus, potentially $50,000, but placed the receiving spouse near the high end of the suggested SSAG range. [233] Here, the respondent's bonus is part of his employment package, albeit dependent upon both individual and branch performance. [234] In Judd, the application was on review, not an initial assessment as is the case here. In my view, such makes Judd distinguishable and of no application. [235] The respondent suggests his income, for spousal support purposes, is $67,000; his base pay in 2014. This despite earning $98,220 in 2014 after incentives. While it is true the respondent has obtained additional training over the years since separation, the courses have been online courses in furtherance of the same career in which he was employed at

the marriage's commencement. [236] There has been no change in his career trajectory or focus as was the case in a variety of the authorities referred to me by the respondent. The cases suggest that the inquiry as to whether to include post-separation income increases is fact driven and, in the main, dependent upon whether the income shift of the payor is driven by a change in employers or positions since separation: Hartshorne v. Hartshorne, 2010 BCCA 327. [237] Recalling this is an originating application and not a variation of an order based upon a material change in circumstances following a trial or separation agreement wherein support was set, I conclude the respondent's support obligation should be based upon his current income. Such income, in my view, is not the result of a career change, a change in the respondent's job description, or commitment to additional hours of work. I accept he has received a promotion and that he has achieved incentives based on stellar individual performance. [238] In the result I conclude that the claimant has established her entitlement to ongoing spousal support and that the respondent's income for assessing that obligation should be set as his 2016 Line 150 income; $126, 637. [239] Once entitlement is established, the respondent argues that the claimant should have an income of $54,000 attributed to her based on what he asserts is

voluntary unemployment or underemployment. He further submits that his spousal support obligation ought to be calculated using his income at the commencement of the marriage - $67,000 - with the result being that no sum is payable for spousal support, regardless of the parenting regime imposed. [240] He bases the $54,000 on the average of the claimant's previous income of $43,000 annually, and the "estimate" of $65,000 provided by the respondent's expert, Mr. Carson, as to the claimant's average income expectation. Mr. Carson, an economist, based his estimate on statistical information for like qualified women working in the same field as the claimant. [241] I have little faith in the statistical approach and decline to consider the figures advanced by Mr. Carson absent something correlating those broad employment categories to the claimant given the origin of her credentials. [242] Nonetheless, I accept that the time has arrived that the claimant must have income imputed to her given the very modest efforts I find she has made to acquire employment or to gain Canadian recognition of her Indian qualifications. [243] The respondent referred to Hanson v. Hanson (1999), 92 A.C.W.S. (3d) 1024, [1999] B.C.J. No. 2532 (S.C.) as providing the principles under which the court may impute income. The statutory authority is provided by s.19 of the FCSG. [244] In my view, the respondent

correctly asserts that the claimant, over the course of time, has persistently pursued employment beyond her reach resulting in now chronic unemployment. [245] Further, I agree that her efforts to find employment in her chosen field have been lacklustre in that her efforts seem, in the main, confined to registration with a caseworker at the Abbotsford Community Service Centre. [246] The claimant, of course, should continue to pursue employment commensurate with her skills and academic achievement. She should take concrete steps to have her credentials from India accredited in Canada. To date, I find she has not. [247] Having said that, the questions become: at what point does the claimant become obliged to change career trajectory, look for jobs for which she may be over qualified, and accept, even if temporarily, a job which compensates her less than her previous employment? Further, what then are the reasonable expectations wage-wise of expanding her search? [248] The answer to both questions requires some degree of speculation. [249] I begin my assessment noting that the claimant is young, well educated, well spoken, and has a strong employment history. [250] While I accept that she has been actively seeking employment, she has not spread her sights far enough in my view, nor has she properly explored means by which to have her degrees and work experience from India

recognized in Canada. [251] Section 19 of the FCSG provides for the imputation of income to a person, such as the claimant, whom I find is intentionally unemployed or under-employed. [252] The claimant was entitled to a reasonable period to explore employment opportunities within the area of food safety and inspection, but there comes a time when all persons seeking employment need to widen the scope of their inquiries so as to obtain meaningful employment. [253] For the claimant, I find that time to have been August 1, 2017, roughly six months following her job loss. For the period from January 1, 2017 until July 31, 2017, I invite the parties to agree on the income earned by the claimant based on the available records from her severance and EI payments that were not in evidence before me. [254] Thereafter, commencing August 1, 2017, I impute an income to her of $36,000 annually, an amount approximately 80% of her former earnings. [255] Each party, for so long as support is payable by one to the other, shall exchange their T-1 general tax form by no later than May 15th for the taxation year proceeding and, further, shall exchange their assessment for that year to the other of them immediately upon receipt. [256] It is my hope that the parties, once in receipt of the other's financial information, will be able to adjust support to reflect the changes in their respective incomes

without returning to court. Such will be based on the formula later found in these reasons. The required disclosure of tax documents will be effective the first day of June 2018 based upon 2017 incomes. [257] I shall come to the matter of retroactive and prospective support, both as to quantum and duration, later in these reasons. Child Support [258] The respondent acknowledges his obligation to pay child support based on his current income and suggests the set-off amount is appropriate prospectively given the result: a shared parenting arrangement that engages s. 9 of the FCSG. [259] Based on the foregoing, I find that there has been a material change in the parties' circumstances effective the date of the claimant's loss of employment. [260] I direct that the respondent's child support payable in respect of K. be varied to reflect the ongoing parenting arrangement in place up to the date of release of these reasons, effective January 1, 2017 based upon the respondent's 2016 income. The monthly base amount is $1167, and will be paid from June 1, 2017 until April 1, 2018 by which time the shared parenting regime resulting from these reasons will have been implemented. [261] Thereafter, given the respective income of the parties - $36,000 for the claimant and $126,637 for the respondent - and the provisions of s. 9 of the FSCG, I order that child support be payable by the

respondent to the claimant in the amount of $828 until varied by agreement or further order. [262] Section 7 expenses should be agreed upon in advance. The cost of those expenses shall be shared in proportion to the parties' incomes. Nothing shall preclude one of the parties from seeking indemnity from the other for that party's proportionate share of a s. 7 expense that is later found by the court as appropriate if one party unreasonably withholds consent. [263] I do not understand there to be issues surrounding past expenses but if I am wrong, the parties, or either of them, shall have liberty to apply. Retroactive and Prospective Spousal Support Orders [264] The claimant seeks retroactive support adjusted back to the date of the order of Groves J. In my view, the proper time for the coming into effect of the "new order" is April 2017, the month in which the trial commenced. Had the claimant sought variation of what was an interim order earlier than that date she would, in my view, have had to present evidence of a material change in the circumstances in place at the time of the Groves J. order. [265] The change to her employment occurred early in January 2017, but she received some severance from her employer. While the evidence is not specific as to the date she commenced receiving Employment Insurance, or the amount, that deficiency falls on the claimant; it does not fall

on the respondent. [266] Commencing April 1, 2017, and thereafter until August 1, 2017, the respondent is to pay spousal support based on the midrange in the SSAG premised on his income of $126,637 and the claimant's actual monthly income, pro-rated to an annualized amount, for those four months. Thereafter, the amount payable is $1980, the mid-range based on an imputed income to the claimant of $36,000 and the respondent's actual income. [267] In considering placement of the quantum within the range provided by the SSAG, I find the short duration of the marriage is counter-balanced by the disparate household incomes once support is calculated. [268] On the support amounts I have ordered, the respondent enjoys almost 70% of the parties' combined net disposable income. [269] Spousal support may be reviewed, both entitlement and quantum, on the application of either party any time after April 2020. I will hear the application. [270] By then, I will expect that the claimant will have made significant strides toward self-sufficiency such that support may be terminated or, alternatively, a termination date set. [271] As previously mentioned, the respondent is entitled to set off the amount of the RRSP entitlement earlier referred to as against the "arrears" of spousal support created by my order. Conduct Order [272] I have found no facts permitting me to make conduct orders of the

nature sought by the claimant. Other than providing a mechanism for dialogue that discourages, but does not prohibit, in person contact between the parties, I find no reason to make orders beyond those earlier referenced. Annulment [273] Given the respondent's admitted legal inability to enter into a marriage with the claimant, I grant the order of nullity respecting the parties' 2008 marriage. Costs [274] Despite the lengthy submissions by the respondent on the issue of costs, I make no order at this time. The parties are at liberty to appear back before me so as to allow the claimant the benefit of submissions now that reasons have been issued. [275] Of concern to me is the matter of the claimant's stated intention to appeal the Groves J. order, and its status as a result of the claimant seeking leave instead of pursuing the appeal as a matter of right. [276] Without making any determination of whether such an appeal has merit, my conclusion regarding costs will be affected if I am left with the notion that the issue of the house price and the amount paid to the claimant by the respondent is now beyond appellate review. [277] The parties are at liberty to set the matter down before me through Scheduling if they need to do so. "Harvey J."