T.G.T. v. L.K.M.

2025 BCCA 251 T.G.T. v. L.K.M.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: T.G.T. v. L.K.M., 2025 BCCA 251 Date: 20250717 Docket: CA50183 Between: T.G.T. also known as T.G.T. Appellant (Respondent) And L.K.M. Respondent (Claimant) Before: The Honourable Madam Justice Horsman The Honourable Justice Edelmann The Honourable Justice MacNaughton On appeal from: An order of the Supreme Court of British Columbia, dated September 12, 2024 (L.K.M. v. T.G.T., 2024 BCSC 1675, Vancouver Docket E233069). Counsel for the Appellant: J. Desilets N. Bernardi Counsel for the Respondent: G.A. Lang M. Atwal Place and Date of Hearing: Vancouver, British Columbia May 30, 2025 Place and Date of Judgment: Vancouver, British Columbia July 17, 2025 Written Reasons by: The Honourable Justice MacNaughton Concurred in by: The Honourable Justice Horsman The Honourable Justice Edelmann Summary: The appellant challenges an order permitting the respondent to relocate with the child from British Columbia to Ontario to pursue an employment opportunity. HELD: Appeal dismissed. The summary trial judge did not err in determining the matter was appropriate for summary trial. He did not misapprehend the evidence and he had a sufficient evidentiary record to determine the child's best interests, which is the only focus of this application. Reasons for Judgment of the Honourable Justice MacNaughton: Introduction [1] This is an appeal from a

summary trial judge's determination that the respondent L.K.M.'s application to relocate with the parties' child to Ontario was suitable for determination in a summary trial and that it was in the child's best interests that she be relocated to Ontario. [2] T.G.T., the appellant, argues that the summary trial judge misapprehended the evidence and made legal errors in making both determinations. He seeks that the child be returned to British Columbia and L.K.M.'s relocation application be remitted to trial. Factual Background Relationship History [3] The parties met when both were living in Toronto. T.G.T. is a British citizen. He is in his mid-50s and emigrated to Toronto, Canada in July 2017. He lived and worked in a number of different countries before coming to Canada, including the Middle East and Mexico. He was married before and has a daughter, M., who is now a teenager, from an earlier marriage. M. lives in Mexico with her mother but visits T.G.T. in Canada each year. In 2022, T.G.T. and M. became permanent residents of Canada. [4] L.K.M. is in her mid-40s. When the parties started dating in 2017, she and a business partner owned two yoga studios in Toronto. [5] The parties began living together in Toronto in January 2018 and separated in 2023, on a date that is in dispute. In September 2018, the parties purchased a home together near Ottawa, Ontario. Their daughter, G,

was born on January 15, 2019. Move to Whistler [6] In March 2020, after the onset of the Covid-19 pandemic, L.K.M. closed her yoga businesses. In June 2020, L.K.M.'s friend, L.S., invited the parties to stay for a month at a vacant home she owned in Whistler. The parties did so and, while in Whistler, they agreed to sell their Ottawa home and move to Whistler. [7] Together with L.S. as co-owner, the parties bought a home in Whistler on Valley Dr. It was registered in T.G.T.'s and L.S.'s names. The parties' Ottawa home sold in September 2020 and the net equity was transferred into the Whistler home. [8] L.S. also provided funds to a charity that L.K.M. operated in Whistler, thereby allowing her to draw a salary. [9] T.G.T. worked remotely from Whistler. In April 2021, due to a restructuring at his employer, T.G.T. was terminated from his employment. He was paid a salary or severance for a year while he was subject to a non-compete clause, which prevented him from working elsewhere. [10] Starting in 2021, G. was enrolled in preschool in Whistler. [11] Anticipating the primary funding for her charity to end in the summer of 2023, L.K.M. took some steps toward pursuing a real estate career in 2022, but it does not appear that she ever completed the exams necessary to be licenced. T.G.T.'s Job in Kelowna [12] In September 2022, T.G.T. was offered a position in Kelowna, with a

November start date. The parties listed the Whistler home for sale. A short-term lease for a two-bedroom condominium was found in Kelowna. [13] The Whistler home did not sell quickly. L.K.M. did not move to Kelowna. T.G.T. worked remotely to start, and then moved to Kelowna in early 2023 to continue his employment. Thereafter, the parties spent time in both Whistler and Kelowna but L.K.M. and G. continued to reside in the Whistler home. [14] T.G.T. said that he told L.K.M. that he wanted to separate in February 2023. L.K.M. disputes this and says that although T.G.T. threatened to leave and they fought, they always reconciled and remained together until November 2023. [15] In any event, for most of 2023, T.G.T. travelled to and from Kelowna to Whistler to spend time with G. The parties also took holidays together in the United Kingdom and to Vancouver Island. L.K.M. and G. continued to reside in Whistler. Family Law Proceeding [16] L.K.M. commenced family proceedings on November 22, 2023. She did not seek to relocate G. [17] In March 2024, the parties received an offer on the Whistler home and, after negotiation, reached an agreement on the sale and on a move out date. [18] In April 2024, the parties and their counsel exchanged email correspondence about L.K.M.'s intention to travel with G. to Toronto for the summer, because after mid-May 2024, with the pending sale of the

Whistler home, she would not have living accommodation in British Columbia. L.K.M. then advised that she intended to relocate with G. for employment purposes. [19] Through counsel, T.G.T. objected to the relocation and withdrew his consent for G. to travel to Ontario. June 7, 2024 Application [20] On May 27, 2024, counsel for T.G.T. filed an application seeking short notice to have his application for a declaration that G. was habitually resident in British Columbia and that the British Columbia Supreme Court had jurisdiction to determine custody, access, and guardianship matters. He also sought an order under s. 77 of the Family Law Act, S.B.C. 2011, c. 25 [FLA], requiring L.K.M. to immediately return G. to Kelowna, and for parenting orders on her return. [21] Short notice was granted and on June 7, 2024, the parties appeared in chambers. On consent, they agreed that British Columbia had jurisdiction to determine issues of custody, access, and guardianship of G. They also agreed to certain parenting orders with respect to G. [22] In addition to the consent orders, a schedule was set under which L.K.M. would file and serve materials for a summary trial application for relocation of G, to be heard on July 4-5, 2024, and to remote examinations for discovery, the transcripts from which could be relied on at the summary trial. [23] Finally, the order directed the parties to set a

judicial case conference ("JCC") on the first available date to the parties and counsel. [24] Both parties were examined for discovery. The parties contested applications for the return of G. to British Columbia and to relocate G. to Pickering, Ontario were scheduled for hearing on July 4-5, 2024. Summary Trial [25] On July 5, 2024, after the hearing of the applications had commenced but did not complete, the judge adjourned the applications to continue on August 29-30, 2024. In the interim he made orders regarding parenting time and other matters (the "July Order"). In particular, he ordered that G. be returned to British Columbia for parenting time with T.G.T. in Kelowna for August 2024 and a process by which the exchange was to occur. Appeal of July 5, 2024 Order [26] On July 16, 2024, in this Court, T.G.T. filed a notice of appeal, notice of appearance, notice of urgent application, notice of application for leave to appeal the July Order, and written submissions. On the same day, in the British Columbia Supreme Court, T.G.T. applied for a stay of the July Order. On July 19, 2024, the summary trial judge dismissed T.G.T.'s stay application. Resumption of Summary Trial [27] After the August 29-30 hearing dates, judgment was reserved. On September 5, 2024, the judge made an order granting L.K.M.'s application to relocate G. to Pickering, with reasons to follow. The judge

issued written reasons for his decision on September 12, 2024. It is this order that is the subject of this appeal. Issues on Appeal Appellant's Position [28] T.G.T. contends that the judge failed to address his application that G. be returned to British Columbia. T.G.T. says that such an order should have followed on the judge's finding that G. was wrongfully removed from British Columbia. He says that G. should have been ordered returned before L.K.M.'s relocation decision was considered. [29] T.G.T. also contends that the judge erred in finding this matter was suitable for summary trial because almost all of the evidence was disputed and the judge's reasons did not reconcile the disputes. Although the judge found T.G.T. more credible, when considering G.'s best interests, he disregarded T.G.T.'s evidence regarding L.K.M.'s conduct in frustrating and obstructing his parenting time. [30] Finally, T.G.T. contends that the judge erred in granting L.K.M.'s relocation application, especially without specifying T.G.T.'s parenting time and the division of parental responsibilities. L.K.M. did not put forward a parenting proposal as part of her relocation application. T.G.T. argues that the judge ignored or misapprehended evidence in finding that L.K.M. proposed relocation in good faith and that there was no reason to doubt that she would follow court orders. Further, the judge

ignored or misapprehended evidence in finding that L.K.M. could not work in her current position from British Columbia. [31] T.G.T. seeks to have the order granting relocation remitted to trial and an interim order that, pending trial, G. is returned to British Columbia with the parties sharing parenting time. Respondent's Position [32] L.K.M. contends that, after four hearing days, the summary trial judge correctly allowed her to relocate G. to Toronto and that doing so was in G.'s best interests. [33] L.K.M. submits that the judge specifically addressed the conflicting affidavits and provided reasons for preferring one party's evidence over the other's. The judge determined that the matters were suitable for determination at a summary trial, citing urgency as an important factor in favour of proceeding summarily. He explained that the urgency was created because L.K.M. and G. no longer had a home in Whistler and neither had ever lived in Kelowna. As a result, G. would be relocating from Whistler and a choice had to be made between Kelowna and Pickering, based on what was in G.'s best interests. [34] The judge also noted that each party had conducted examinations for discovery and the transcripts, or parts of them, were in evidence before him. [35] The judge focused on and reviewed the evidence as it related to G.'s best interests, declaring that hearsay evidence was not

admissible. He determined that he was able to make the necessary factual findings, despite the contradictions in the parties' evidence on a number of marginally relevant issues. He relied on independent third-party evidence, and reasonable inferences based on the parties' behaviours. In doing so, the judge concluded, applying the correct test, that it was in G.'s best interests to primarily reside with her mother in Ontario. He also made interim, without prejudice, orders for parenting and parenting responsibilities. The Summary Trial Judgment [36] In his reasons, the summary trial judge concluded that L.K.M.'s application to relocate with the parties' child to Ontario was suitable for determination in a summary trial and that it was in the child's best interests that she be relocated to Ontario. [37] The summary trial judge began by summarising the parties' family history and setting out the two applications before him, explaining: [4] The fundamental issue in both applications is whether G. is to reside in Pickering, Ontario or in Kelowna, British Columbia. However, a preliminary matter is whether this matter is suitable for summary judgment. Suitability for Summary Trial [38] In his reasons, the summary trial judge found that he could, and should, determine the matter summarily. He wrote: [90] I am of the view that I can determine the necessary facts and that it is just to

determine the relocation issue by summary trial. Indeed, because of the urgency of the application and the potential adverse effects on G. of delaying the determination, I am of the view that it is essential to determine the matter summarily. [39] In reaching that conclusion, the judge explained that the facts were hotly contested as reflected in the four volumes of materials before him, the 35 affidavits (four from L.K.M. and five from T.G.T. including their financial statements), and the discovery transcripts. He noted that the affidavits were serial in nature, each commenting on the latest affidavit of the other and, often, disputing the evidence of the other. He explained that he had considered this as relevant for determining whether the matter was suitable for summary trial. [40] The judge also observed that the affidavits, particularly L.K.M.'s, were replete with hearsay and other inadmissible evidence and commented that, while hearsay evidence is admissible under Rule 10-4(13) of the Supreme Court Family Rules, B.C. Reg. 169/2009 [SCFR], hearsay was not admissible in respect of L.K.M.'s application seeking a final order. [41] After setting out the parties' general backgrounds, the history of their relationship, and their various moves in Canada (at paras. 25-35) the judge turned to the events of 2024 and to the history of the proceedings (at paras. 36-45). [42] With

respect to T.G.T.'s application regarding L.K.M.'s wrongful removal of G. and seeking her return, the judge wrote: [46] The parties made minimal submissions in relation to the respondent's application, presumably because the main declarations (jurisdiction and habitual residence) were expressly or implicitly made by Baker J. on July 4, and because the issue of the return of G. was rendered moot by my interim order made July 5. The parties did, however, make submissions on whether G. had been wrongfully removed from the jurisdiction. [43] The judge agreed with T.G.T. that he had not consented to G.'s permanent relocation to Ontario and, that as soon as T.G.T. became aware of L.K.M.'s intent to relocate permanently to Ontario with G., he objected, and withdrew his consent to travel. The judge said: [48] [G]iven the fundamental change in the purpose of the travel, the respondent's withdrawal of consent was done in a timely manner and not done in bad faith. His withdrawal of consent to travel was necessary to assert and protect his parental rights. [44] Citing A.T.H.N. v. J.L.K., 2023 BCSC 2350 at paras. 31-37, the judge said that: [49] Such a unilateral relocation is a wrongful removal of the child from the jurisdiction, a breach of the other parent's rights, and frustrates the purpose of s. 46 of the Family Law Act, S.B.C. 2011, c. 25 [FLA]. [50] In the circumstances, the

claimant's removal of G. from British Columbia was done without the consent of the respondent and was therefore wrongful. [45] The judge said that he would first address suitability for summary trial and, if he determined that the matter was suitable, would address the merits. [46] The judge cited Rule 11-3 of the SCFR and the well-settled test for suitability and the factors for consideration as set out in Bell v. Levy, 2011 BCCA 417 at para.

64. He set out and considered T.G.T.'s position that the relocation decision was unsuitable for summary trial because: · The mobility issues were too complex; · L.K.M.'s affidavits were replete with hearsay; · There was no urgency; · There was no prejudice from delaying the issue to trial, provided G. was immediately returned to British Columbia; · The proceedings were at an early stage; · The costs of litigation would be driven up; and · There were credibility and unresolvable disputes in the evidence, including regarding the date of separation, T.G.T.'s involvement with G. and his parenting capacity, L.K.M.'s allegations of family violence, and T.G.T.'s allegations of L.K.M.'s drug and alcohol use. [47] The summary trial judge reached the following conclusions on each of T.G.T.'s concerns. Complexity [48] At paras. 57-58 of his reasons, citing this Court's decision in Hellberg v. Netherclift, 2017 BCCA 363, at paras. 100-102, the judge concluded that the mobility issues in this case were not too complex to be decided summarily. He explained that Hellberg did not set out a presumptive rule that mobility applications should only be determined after a trial, so long as there is a record that thoroughly addresses the relevant factors. Hearsay [49] At para. 59 of his reasons, the judge agreed with T.G.T. that L.K.M.'s affidavits contained inadmissible hearsay evidence but

concluded that he could disregard it and find the necessary facts without taking it into account. Urgency [50] At paras. 60-62 of his reasons, the judge concluded that there was urgency in this matter because the Whistler home had been sold and L.K.M. had been offered a job in Toronto. He concluded that urgency was a "major factor [militating] in favour of deciding the issues summarily." He wrote that the sale of the family home, alone, created urgency because it meant that L.K.M. and G. no longer had a place to live in Whistler. He wrote: [61] [I]t is no answer to say that G. can live with the respondent in Kelowna or that [L.K.M.] can work remotely from Kelowna. These arguments fail to take into account that neither G. nor [L.K.M.] have ever lived in Kelowna and that requiring G. to live in Kelowna is itself a relocation. Prejudice [51] At paras. 63-64 of his reasons, the judge considered T.G.T.'s submission that no prejudice was likely to arise from delay in determining the issues in a summary trial, provided G. was returned to the jurisdiction. He wrote: [64] there will be significant prejudice and adverse consequences if the relocation issue is left for an eventual trial. Importantly, relocation issues are to be decided on the basis of what is in the best interests of the child. Delaying that determination until trial is both prejudicial and not in G.'s best interest[s].

It is critically important in these matters to do everything possible to minimize the disruption in the child's life. The best way to do that is to determine now whether G. will live in Pickering or Kelowna. Stage of Proceeding [52] At para. 64 of his reasons, the judge agreed that the proceeding was not very far advanced--the parties had not attended a JCC and no trial date was set. Nonetheless, he highlighted that the parties had conducted examinations for discovery at which they were able to fully cross-examine each other on the relocation issues. Litigation Costs [53] At para. 66 of his reasons, the judge acknowledged that the summary trial would increase the parties' litigation costs and that there would be some duplication of evidence at the eventual trial. However, he determined that increased costs were unavoidable given the urgency of the relocation issue, its importance to the parties, and the acknowledged significant, adverse impact that such applications have on one party's parenting time. He concluded that the costs, relative to the urgency and importance of the issues, did not militate in favour of a traditional trial. Credibility and Disputes in the Evidence [54] At para. 67 of his reasons, the judge acknowledged that almost all of the evidence was in dispute. However, he addressed each significant area of dispute and concluded that: (a) The disputed date of

separation was minimally relevant to the relocation decision (at para. 68). (b) There was almost complete disagreement about the extent of T.G.T.'s involvement in G.'s care and his capacity to parent G. Citing this Court's decision in Brissette v. Cactus Club Cabaret Ltd., 2017 BCCA 200 at paras. 26-27, and Justice Tysoe's admonition that the Court should not decide an issue of fact or law solely on the basis of preferring one conflicting affidavit over another, the judge found that T.G.T.'s evidence about his significant involvement in G.'s life was confirmed by eight third-party affidavits. He preferred T.G.T.'s evidence over L.K.M.'s and accepted that T.G.T. had the capacity to parent. He found that T.G.T. was actively involved in G.'s life and was a capable and caring parent who exercised parenting time with G. (at paras. 69-74). (c) At para. 75, the judge found that L.K.M. was G.'s primary caregiver since at least early 2023, when T.G.T. lived in Kelowna and L.K.M. and G. lived in Whistler. (d) At paras. 76-84, the judge rejected L.K.M.'s allegations that T.G.T. was verbally, emotionally, and physically abusive toward his former partners and her. As it related to T.G.T.'s former partners, the evidence was hearsay and was refuted by two of them. The judge said that the allegations were devoid of sufficient particulars and were inconsistent with the claimant's conduct in

offering T.G.T. parenting time with G. for the month of August 2024. The judge noted that T.G.T.'s notice of family claim did not allege family violence and the allegations were uncorroborated by the parties' text messages and emails until they began positioning for this application. (e) At paras. 85-86, the judge rejected T.G.T.'s allegations that L.K.M. abused alcohol and cannabis, to the extent that these allegations raised a safety concern for G. He determined that if T.G.T. had concerns about G.'s safety, or that she was in danger in L.K.M.'s care, he would not have left her in her mother's care when he moved to Kelowna. He concluded that the allegations appeared to be posturing for this application. (f) At paras. 87-88, the judge dealt with T.G.T.'s disputed position that the parties had a "longstanding" plan to move to Kelowna. He determined that this disagreement in the affidavits did not require resolution as, if made, the decision to move to Kelowna was when the parties were still together and was subject to change after separation. (g) At para. 89, the judge did not agree that there was a dispute in the evidence about whether L.K.M. could work remotely from Kelowna in her new job. He noted that the only person with direct knowledge of these facts was L.K.M., and he accepted her affidavit and discovery evidence in that regard. Relocation [55] Having concluded that the

matter was suitable for summary disposition, the summary trial judge turned to the analysis of L.K.M.'s application to relocate. He began his analysis by noting that the facts before him did not "sit easily" within the framework of a typical relocation decision because G. had always resided in Whistler before travelling to Ontario with her mother. Prior to T.G.T.'s August 2024 interim parenting time with G. in Kelowna, she had never lived in Kelowna. He wrote: [91] Accordingly, there will be a relocation regardless of whether G. lives in Pickering with the claimant or in Kelowna with the respondent. [56] The judge said that, as the parties had never married, his relocation decision was governed by s. 46 of the FLA because there was no prior agreement or order respecting parenting arrangements. His decision that s. 46 applied is not challenged on appeal. He set out s. 46 and its requirements that, (a) in determining G.'s best interests, he consider the reasons for the change in location of G.'s residence in addition to the factors set out in s. 37(2) of the FLA, and (b) he not consider whether L.K.M. would move without G.: at paras. 92-96. [57] At paras. 97 and 98, the judge set out the factors he was required to consider under s. 37(2) in determining G.'s best interests and the factors set out in s. 38 of the FLA in assessing family violence as required under s. 37(2)(g) and

(h) of the FLA. [58] Citing this Court's summary of the legal principles applicable to a decision under s. 46 of the FLA in Hayun v. Hayun, 2022 BCCA 34 at paras. 6-11, the summary trial judge then considered the evidence before him under each of the best interest factors in s. 37(2). [59] As it related to the reasons for the move, the judge firmly concluded that the reasons for the move were that the Whistler home had been sold, L.K.M. and G. had nowhere to live in Whistler, and L.K.M. had a new job which required her to be near her employer's Toronto headquarters. He also determined that the proposed relocation was reasonable and was in good faith. He rejected as "mere speculation" T.G.T.'s submission that L.K.M. could have searched for other jobs and might have obtained a job in Kelowna or elsewhere in British Columbia. He found, as a fact, that L.K.M. had looked for employment for a lengthy period and had considered alternative careers. The job offer that she received was in her field. There was no evidence to suggest that L.K.M.'s acceptance of it was in bad faith, particularly because the Whistler home had been sold. [60] The judge reviewed the parties' plans for G.'s care and noted that L.K.M.'s plan was somewhat less developed than T.G.T.'s as she was then living with her parents, in an interim arrangement, until a decision was made about whether relocation would be

permitted. [61] Nonetheless, the judge determined that L.K.M.'s plan for who would care for G. when she was unavailable due to work requirements, was somewhat superior to T.G.T.'s because she had extensive family in the Pickering area who could assist her and T.G.T. had no family in Kelowna to provide such assistance and would have to rely on third-party caregivers. [62] The trial judge then turned to the ss. 37(2) and 38 factors and concluded: · G.'s physical health was a neutral factor as both parties were equally capable of looking after her health needs: at para. 110. · G.'s emotional health was more complicated, as it would suffer whether she moved to Kelowna or Pickering. Either move would require an adjustment and would result in less time with one parent and more with the other. Nevertheless, the judge concluded that the emotional effects on G. would be less if she relocated to Pickering because L.K.M. had been her primary caregiver since at least early 2023, and she had extended family in Pickering who could help her adjust to the move. This factor favoured relocation to Pickering: at paras. 111-113. · Due to G.'s young age it would not be appropriate to consider her views: at para. 114. · With respect to the nature and strength of G.'s relationships with significant persons in her life, this factor "mildly" favoured relocation to Pickering. G. had a strong

relationship with both parents but, given her young age and L.K.M.'s role as her primary caregiver since at least early 2023, she had a marginally stronger relationship with L.K.M. As to her relationship with M., her half-sister, they only saw each other during holidays and L.K.M. also had a relationship with T.G.T.'s eldest daughter. Regardless of where G. lived, the half-sister's relationship was unlikely to be jeopardized. G.'s relationships with her maternal grandparents, aunts, uncles and cousins would likely improve if she moved to Pickering: at paras. 115-119. · The judge repeated his findings about the history of G.'s care that L.K.M. had been G's primary caregiver since at least early 2023, but noted that both parents were involved in her care since birth. L.K.M.'s primary care role mildly favoured a relocation to Pickering: at paras. 120-121. · As to G.'s need for stability, given her age and stage of development, the judge found that G.'s life had already been disrupted by the parties' separating, T.G.T.'s job in Kelowna, the sale of the Whistler home, and L.K.M.'s job in Pickering. G.'s life would be further significantly disrupted regardless of where she relocated, but Pickering would be slightly less disruptive due to the factors he had earlier discussed: at paras. 122-123. · As to the ability of the parties to exercise their parenting responsibilities, this was a

neutral factor as both were capable parents. He rejected their respective evidence undermining the other's parenting capacity. He was critical of L.K.M. for making unilateral decisions about G. without consultation and without T.G.T.'s consent but factored in the traumatic and turbulent events in early 2024 and the fact that there were no agreements or court orders regarding parenting time or responsibilities. He noted that L.K.M. had complied with court orders since they had been put in place and he had no reason to doubt that she would continue to do so: at paras. 124-125. · Having rejected L.K.M.'s allegations of family violence, the judge said this was not a relevant factor: at para. 126. · As to the ability of the parties to cooperate on issues affecting G., regardless of whether G. relocated to Kelowna or Pickering, they would need to cooperate on parenting arrangements, making this a neutral factor. He had no reason to believe that L.K.M. would undermine T.G.T.'s role as a parent by not abiding by court orders: at paras. 127-128. · There were no civil or criminal proceedings to be considered: at para. 129. [63] The summary trial judge concluded: [130] After careful consideration of the reasons for the proposed relocation to Pickering, the parties' respective plans for G.'s care and the best interest factors in s. 37 of the FLA, I have determined that [L.M.K.] is to be

permitted to relocate to Pickering with G. It follows that an order will go that G. will reside primarily with [L.M.K.] in Pickering, Ontario. [64] Because the parties made few submissions on parenting time and the division of parental responsibilities, the trial judge deferred those issues to the upcoming JCC. He made interim orders, subject to variation by agreement or application. In particular, he ordered at para. 132 that: a) the parties were to share all parental responsibilities under s. 41 of the FLA; b) T.G.T. was to have regular contact with G. by telephone or video call on a schedule to be agreed by the parties, but at least three times a week; and c) T.G.T. was to have generous parenting time with G. Discussion [65] I will summarize the basic principles that relate to the issues raised on this appeal before dealing with their resolution. Summary Trial [66] Rule 11-3 of the SCFR governs the procedure on a summary trial application. Pursuant to Rule 11-3(2), a party may apply to the court for judgment under this Rule, either on an issue or generally. This Court has discussed the purpose and nature of a summary trial in a number of decisions. The purpose of the Rule is to lessen the expense and time required to achieve a final resolution where doing so summarily is possible and just: Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d)

202, at 213-214, 1989 CanLII 229 (C.A.). [67] Rule 11-3 affords the summary trial judge broad discretion to render judgment, unless they determine that the facts necessary to do so cannot be found, or that it would be unjust to decide the issues in this manner. At any stage of the application, the judge may conclude that either of those conditions makes the case unsuitable for summary disposition: Foreman v. Foster, 2001 BCCA 26 at paras. 11-19. Standard of Review [68] The standards of review on appeal from a decision regarding suitability for summary trial, and on appeal from a relocation decision, are well-settled. [69] A chambers judge's determination that a matter is suitable for summary trial and a substantive decision on relocation are both exercises of discretion. It is well-established that discretionary decisions are afforded considerable deference on appeal. Deference must be afforded unless the judge's exercise of discretion was clearly wrong, in that no weight or insufficient weight was given to relevant considerations, or it appears that the decision itself is clearly wrong and may result in an injustice: Gichuru v. Pallai, 2013 BCCA 60 at para. 34: McGregor v. Van Tilborg, 2005 BCCA 217 at paras. 31-32. [70] As it relates to a relocation decision, and the determination of a child's best interests, a trial judge's decision is entitled to deference and should not be

interfered with in the absence of reversible error: Hellberg at para. 51, Barendregt v. Grebliunas, 2022 SCC 22, at paras. 100-104. [71] I turn now to apply those standards of review to the summary trial judge's conclusions in this case. Did the judge err in determining the relocation issue was suitable for summary determination? [72] I see no error in the judge's conclusion that, despite the competing and disparate affidavit evidence, he was able to find the necessary facts and determine that the matter was suitable for summary determination. He set out the test for suitability from Inspiration Management and considered each of the factors in light of the evidence in the extensive affidavits and the discovery transcripts before him. His assessment was not unbalanced; in fact, many of the factors were determined in favour of T.G.T. [73] The trial judge understood the factors he was required to consider in addressing suitability and considered and weighed each of them, explaining his reasoning clearly. Did the judge err in determining that G. should be relocated to Pickering? [74] On the trial judge's reasons and factual findings, I see no error in his conclusion that G. should be relocated to Pickering. [75] L.K.M. should not have taken G. out of British Columbia after T.G.T. withdrew his consent, or should have returned with her pending her application for relocation. However,

as a result of the trial judge's July 4, 2024 interim decision, G. was back in British Columbia at the time of this application, and had spent the month of August 2024 with T.G.T. [76] L.K.M. participated in the proceedings. The judge, correctly in my view, treated the parties' competing applications as raising a single issue--should G. reside in Pickering or in Kelowna. The parties and the child's circumstances, and the timing of the applications in this case, did not make it necessary for the judge to order G.'s return to reside in this jurisdiction before considering L.K.M.'s relocation application. Doing so would have been overly disruptive to G. and to L.K.M.'s employment in Ontario. As the summary trial judge found, there was no evidence that L.K.M. had acted in bad faith. She was not flouting existing, settled parenting arrangements or a court order. [77] Relocation decisions are notoriously difficult. Assessing what is in a child's best interests in a case in which parents no longer wish to reside in the same community, is done knowing that any decision is likely to significantly impact one parent's relationship and time with the child. Nonetheless, these applications are not unusual and the FLA provides a child-centred framework for making them. The focus throughout must be on the child's best interests. [78] It is apparent from the summary trial judge's reasons that

he considered the applicable statutory sections (ss. 37(2), 38 and 46 of the FLA) and the parties' extensive evidence. He considered all of the factors relevant to G.'s best interests based on the affidavits and discovery transcripts before him. He reached evidentiary conclusions that were available to him on the evidence, many of which favoured T.G.T. [79] This case presented a unique circumstance as G. had to relocate from her home in Whistler--it had been sold. The judge had two options: 1) have G. reside with T.G.T. in Kelowna, or 2) have her reside with L.M.K. in Pickering. G. could not live in both places at the same time. [80] T.G.T. did not point to any specific error in the trial judge's reasons, rather, in my view, he sought to reargue the summary trial application, seeking a different result. [81] The summary trial judge did not misapprehend the evidence and he had a sufficient evidentiary record on which to determine G.'s best interests which was the judge's only focus. [82] T.G.T. argued that it was incumbent on L.K.M. to provide a parenting time proposal as part of her relocation application and that the trial judge should not have left parenting time to be worked out between the parties or on a subsequent application. Given the fact that L.K.M. had made temporary living arrangements until her relocation application was decided, I do not fault the trial judge's

approach. From the trial judge's findings, it was apparent that this was not the subject of much argument, and he encouraged the parties to resolve it at the scheduled JCC or, if necessary, through a further application. In my view, it was not an error to take that approach in the circumstances of this case. Conclusion [83] In conclusion, I am not persuaded the summary trial judge erred in concluding this matter was suitable for summary trial and the judge's decision that relocation was in G.'s best interests was well-supported in the evidence. [84] I would dismiss the appeal. "The Honourable Justice MacNaughton" I AGREE: "The Honourable Madam Justice Horsman" I AGREE: "The Honourable Justice Edelmann"