D.U. v. B.D-H., 2016 BCPC 489

Citation: D.U. v. B.D-H. 2016 BCPC 489 Date: 20161201 File No: F39413 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: B.D-H. APPLICANT AND: D.U. RESPONDENT File No: F39441 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: D.U. APPLICANT AND: B.D-H. RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. GAFFAR Counsel for D.U.: J. Scouten Place of Hearing: Surrey , B.C.

Dates of Hearing: November 4 and December 1, 2016 Date of Judgment: December 1, 2016 [ 1 ] D.U. and B.D-H. married on [omitted for publication] in the United States. Their son, J., was born on the [omitted for publication] in Mexico. They lived in Mexico until the family relocated to Langley, British Columbia in August of 2015 - I should pause, in either June or August of 2015 - for educational and employment purposes. Mr. U. continued to attend at his business operations in Mexico and elsewhere intermittently after their relocation to British Columbia. [ 2 ] On 18 October 2016, Ms.

D-H. obtained protection and family court orders which I will now refer to as “the October 18th Orders”. She obtained the October 18th Orders on an ex parte or urgent basis without notice to Mr. U. On 20 October 2016, she disappeared with their child. It appears that Ms. D-H. and J. flew to Barcelona, Spain, via Toronto, Ontario, on 24 October 2016. [ 3 ] Since October 20, 2016, Mr. U. has launched several legal proceedings in both the Provincial and Supreme Courts of British Columbia regarding Ms. D-H. and J. Most of the Provincial Court proceedings have appeared before me and several orders have been made. Mr.

U. learned about the October 18th Orders for the first time in the midst of these legal proceedings. [ 4 ] After Ms. D-H. was served with notice of Mr. U.'s legal proceedings by email, Ms. D-H. participated by telephone during a court appearance in the Provincial Court of British Columbia. She indicated, amongst other things, that she was unwilling to disclose both her location and J.'s location. She indicated that she believed that the October 18th Orders and the sitting judge, the Honourable Judge E. Gordon, permitted her to leave British Columbia with J. and to withhold their location.

I will deal with the content of the October 18th Orders and court proceedings later in this decision. I ordered Ms. D-H. to appear in person before me on 10 of November 2016, to deal with this matter and other issues concerning Mr. U.'s parental rights. She did not appear before the court on 10 November 2016, either in person or by telephone. ORDER(

S) SOUGHT [ 5 ] Mr. U. now applies for a declaration that the October 18th Orders were obtained by fraud and should be found void ab initio , or in other words, that the October 18th Orders were invalid from the moment they were made. The consequence of such a declaration is that the October 18th Orders would be set aside as if they had never been granted. [ 6 ] Mr. U. also applies for a finding that Ms. D-H. unlawfully removed J. from British Columbia on 24 October 2016. It has been brought to my attention that I previously erred when I cited s. 77(1)(

b) of the Family Law Act as the basis for finding that Ms. D-H. had wrongfully removed J. from British Columbia. Mr. U. seeks a modification of that finding which specifies that the removal was unlawful, not wrongful, and deleting the reference to s. 77(1) (b). ISSUES [ 7 ] The central question that I must answer is whether Ms. D-H. obtained the October 18th Orders by fraud. Mr. U. must demonstrate that she concealed information, withheld information, or was untruthful when she provided information to the court on 18 October 2016.

The legal standard of "a balance of probabilities" requires that I find it was more likely than not that Ms. D-H. obtained the October 18th Orders by fraud. I must also consider the legal basis of any finding that Ms. D-H. unlawfully removed J. from British Columbia. [ 8 ] This is the portion where I now review all the materials that I have reviewed. Madam Registrar, do we have any assistance with regards to exhibits? (DISCUSSION) EXHIBITS & MATERIALS REVIEWED [ 9 ] In coming to my conclusions, I have reviewed and assessed the following materials provided by counsel.

The Notice of Motion and affidavit dated 18 October 2016, both by Ms. D-H.--it is at the bottom of the pile. [ 10 ] MR. SCOUTEN: There is a copy of her affidavit, the original version of the affidavit. [ 11 ] THE COURT: The Notice of Motion will be located in a different

section of the file folder, Madam Registrar. (DISCUSSION) [ 12 ] THE COURT: So that Notice of Motion and the affidavit that Mr. Scouten has in his hand will become Exhibit 1. EXHIBIT 1: Notice of Motion and affidavit of Ms. D-H. [ 13 ] The orders and transcript of the October 18 court proceedings before the Honourable Judge E. Gordon, including the sworn testimony of Ms. D-H. [ 14 ] That is located in the

section for orders. What I am going to do is hand this to Madam Registrar, these are my copies of the orders, and you are just going to have to erase what I have written in pencil and remove the stickies at the top, which is just the date of each one, to speed this up, so that there is an order for October 18, that is the very first one, there are two orders there, so extract those and attach them to the transcript which is found in the back of the file folder for October 18. It is a coiled transcript, October 18. Those documents all will be marked collectively Exhibit 2. EXHIBIT 2: October 18, 2016 transcript and two orders

[ 15 ] Now I am moving to the Notice of Motion and affidavit dated 24 October 2016, both by Mr. U. The Notice of Motion and affidavit by Mr. U., that is ex parte , that will be collectively Exhibit 3. EXHIBIT 3: Notice of Motion and affidavit by Mr. U. [ 16 ] Mr. Scouten, I appreciate that when we were conducting this, all of these hearings, we were always sandwiched in between other matters and we moved expeditiously and we had matters filed but we did not have them marked as exhibits. [ 17 ] MR. SCOUTEN: That's quite right. [ 18 ] THE COURT: The next will be the order and transcript of October 24.

The order would be in my pile, and the transcript for October 24 before the Honourable Judge J. Oulton, including the sworn testimony of Mr. U., that will be Exhibit 4. EXHIBIT 4: Order and transcript dated October 24, 2016. [ 19 ] Next will be that large affidavit that was sworn on November 1, 2016 by Mr. U., that will be Exhibit 5. EXHIBIT 5: Affidavit sworn November 1, 2016 by Mr. U. [ 20 ] Next will be the order and transcript, and we have to double check that there is a transcript, for November the 1st, 2016. [ 21 ] THE CLERK: I think there's November 10th and November 4th. [ 22 ] THE COURT: That is correct.

I do not have a transcript, my apologies. So it should be the order of the 1st of November, 2016. [ 23 ] THE CLERK: Exhibit 6? [ 24 ] THE COURT: Yes. EXHIBIT 6: Order of November 1, 2016 [ 25 ] THE COURT: Next will be the affidavit of Mr. U. sworn 3 November 2016 containing Canadian banking records on a joint account shared by the parties. That will be Exhibit 7. EXHIBIT 7: Affidavit of D.U. sworn November 3, 2016 containing Canadian banking records [ 26 ] Next will be the order made on 3 November 2016 in the Supreme Court of British Columbia court proceedings before the Honourable Mr. Justice N. Smith.

EXHIBIT 8: Supreme Court order made November 3, 2016 [ 27 ] Next will be the affidavit of J. Scouten, counsel for Mr. U., sworn 9 November 2016. Exhibit 9. EXHIBIT 9: Affidavit of J. Scouten sworn November 9, 2016 [ 28 ] The order and content of the November 10, 2016, court proceedings before me, including the sworn testimony of Mr.

U.--so it should just be the order that is marked as Exhibit 10. [ 29 ] THE CLERK: The order, sorry, of November 10th? [ 30 ] THE COURT: Yes, and that will be Exhibit 10. [ 31 ] THE CLERK: There's two orders, I believe, Your Honour… (DISCUSSION) EXHIBIT 10: Order dated November 10, 2016 [ 32 ] THE COURT: Then we have the affidavit of Mr. U. sworn 17 November 2016. Mr. Scouten, can you please provide that to Madam Registrar? Containing the records of electronic messages, travel documents and photographs. That will be Exhibit 11.

EXHIBIT 11: Affidavit of D.U. sworn November 17, 2016 containing records of electronic messages, travel documents and photographs [ 33 ] I have also considered the legal submissions and case law of counsel for Mr. U. submitted on 17 November 2016. Those legal submissions should be marked as Exhibit 12, please? Mr. Scouten, do you have a clean copy? [ 34 ] MR. SCOUTEN: I have a clean copy with one alteration that I made as a reminder to myself. [ 35 ] THE COURT: That's fine. [ 36 ] MR.

SCOUTEN: On page 6, I just marked out the word "wrongfully" and wrote in the word "unlawfully", but other than that I have a copy. [ 37 ] THE COURT: Thank you. Do you have a copy of the corrigendum as well? [ 38 ] MR. SCOUTEN: I do.

[ 39 ] THE COURT: File those both, please, as Exhibit 12. EXHIBIT 12: Legal submissions and corrigendum [ 40 ] And the last exhibit will be the booklet of some of the translated excerpts of the electronic messages contained in Exhibit 11; that will now become Exhibit 13. And I note that I have reviewed some of the translated excerpts of the electronic messages contained in Mr. U.'s 17 November 2016 affidavit prepared by an authorized translator in the Spanish language. EXHIBIT 13: Booklet of translated electronic messages in Exhibit 11 [ 41 ] THE COURT: I am moving now to my decision. [ 42 ] MR.

SCOUTEN: Your Honour, just before you proceed, I just -- I've realized that the copy of the affidavit that was marked, that's the large one, was a photocopy. I have the original here. I handed that up by mistake. [ 43 ] THE COURT: I'm sure Madam Registrar will be able to just switch that with you. Thank you. [ 44 ] MR. SCOUTEN: The court now has the original. ANALYSIS & APPLICABLE FACTS Did Ms. D-H. obtain the October 18 th Orders by fraud? [ 45 ] THE COURT: I will now address the analysis and applicable evidence relating to whether Ms. D-H. obtained the October 18th Orders by fraud.

Evidence of B.D. [ 46 ] I begin by summarizing Ms. D-H.'s evidence. [ 47 ] When Ms. D-H. sought the October 18th Orders, she swore an affidavit and provided sworn oral testimony before the court. I make the following findings about the nature and content of her evidence: (

a) In her affidavit, she stated that it was Mr. U.'s idea to move to Canada for improper purposes. He wanted her to become a student so that he could obtain an open work permit, according to her. She left the impression that she did not want to move to Canada. However, she decided to use this opportunity to leave Mr. U. She noted that Mr. "barely" visited her and J. in Canada. I observe that if she was left alone as often as asserted, she was in a position to leave Mr. U. during his absences from British Columbia in the yearlong period prior to 18 October 2016. (

b) Her testimony appeared to contradict the above assertion. I am going to refer to her as "Ms. H.", just for the sake of brevity from this point on. Ms. H. indicated that she lived in Mexico while married to Mr. U., but moved to Canada in the summer of 2015 after she separated from Mr. U. The clear implication or inference left by her testimony is that she and J. moved to Canada without Mr. U. and to get away from Mr. U. This contradiction diminishes her credibility. (

c) Her evidence suggests that Mr. U. had been abusive and controlling before and after J. was born. She was not allowed to leave the house or do many things. In her affidavit she states that he isolated her from her friends and family. She left the impression that he controlled their assets, cars and money. (

d) In her affidavit, she described only barely seeing Mr. U. in the last four years. She testified that she and Mr. U. had not seen each other much over the previous four years because he had to work outside the city. She saw him maybe three months out of the year altogether. (

e) In her affidavit, she deposes that Mr. U. does not like to remain in the house because J.'s crying disrupts his sleep. The implication is that Mr. U. infrequently or rarely saw J. and did not reside with them. (

f) In her affidavit, Ms. H. characterized Mr. U. and his parents as people who used illicit drugs, abused alcohol, and abused normally-prescribed medication. She intimated that Mr. U. was involved in illegal or criminal activity. In her affidavit, she also described him as physically, sexually and emotionally abusive towards her. (

g) Ms. H. referred to Mr. U. trying to be physically abusive towards J. in June 2016. Ms. H. prevented him, and Mr. U. got angry, indicating that he would use the same physical discipline on J. that he received as a child. Ms. H. believed that Mr. U. could not help himself. (

h) Ms. H. informed the court that she received information from Mr. U.'s first wife, which alarmed her about his past conduct and caused her to fear for her safety. It is unclear when she received this information. She indicated that she still had the emails. (

i) Ms. H. received information on 16 October 2016, that Mr. U. was telling people in Mexico that he was coming to retrieve her and J. because he wanted them to return to Mexico. She implied that he intended to force her and J. to return to Mexico. (

j) In her affidavit, she stated that she did not want to return to Mexico. While in court, she told the judge that she wanted to return to Mexico. Again, these contradictions impact her credibility. Mr. U. was in British Columbia in September 2016 and was very unkind to her, according to Ms. H. She had to call 9-1-1. Ms. H. implies that Mr. U. did something that was so serious that she had to call the 9-1-1 emergency number. (

k) It is clear that Ms. H. intended to convey that she lived in fear, both for her and J.'s safety.

(

l) On the basis of the above information, the court granted a protection order which prohibited Mr. U. from communicating with or contacting Ms. H. and J. He was also prohibited from attending any residence, workplace or educational facility of Ms. H. and J. He was prohibited from possessing weapons. The police were ordered to remove Mr. U. from any residence, workplace or educational facility of Ms. H. and J. The protection order was to expire in one year. I have serious concerns about the veracity of Ms. H.'s evidence from 18 October.

There are material internal inconsistencies, as well as a lack of plausibility in many of the things she asserted. For the reasons that follow, I also find that her evidence is substantially and materially contradicted by continuous and numerous electronic messages exchanged between the couple while she was in British Columbia, the banking records of their joint account in British Columbia, Mr. U.'s travel documents, and numerous family photographs. Evidence of D.U. [ 48 ] I will now deal with the evidence of Mr. U. which was referenced earlier in these reasons. Mr.

U. has sworn four affidavits and provided sworn testimony. Some of the affidavits contained exhibits. I do not intend to review the contents in detail; I intend only to summarize the following findings about the nature and content of the sworn evidence relating to Mr. U. (

a) Mr. U. indicated that the entire family moved to British Columbia from Mexico on 10 June 2015. He denied any marital estrangement or separation prior to or during the family's move to BC. Both he and Ms. H. were seeking educational and related employment opportunities in BC. He also attended to his existing business, servicing and repairing helicopters in Mexico and at other locations. Mr. U. is a trained helicopter pilot. He described working out of town on various occasions but he always returned to his family for continuous periods of time. I do not intend to specify the arrival and departure dates in detail. In

summary, it is clear that Mr. U. spent time away from his family, but he always returned to them for continuous periods of time. During these times, the family generally remained in British Columbia. They also spent days away on little or longer holidays, either with J. or as a couple. These holidays included visits to Bellingham, Washington; Phoenix, Arizona; downtown Vancouver; and Mexico. (

b) Mr. U. described their marital relations as happy and loving, including after they moved to British Columbia. Mr. U. described daily communications between them while he was working away and after he returned to their residence. He provided printouts of electronic communications between the couple, which occurred from the time period that J. resided in British Columbia, i.e. from late September 2015 through October 22, 2016. There are 626 pages of printouts. I have reviewed the messages. It is clear that the messages between the couple were affectionate and frequent. (

c) Contrary to her evidence, Ms. H. frequently expressed in the messages that she loved and missed Mr. U.; her desire for him; her concern that he was not thinking about her and J. enough while he was away; the details of her daily life with J.; family matters like healthcare concerns for J. and healthcare arrangements, referring to both her and Mr. U.'s residence in British Columbia; her loving nicknames for him; and the U.S. election in October of 2016, amongst other things. Mr. U.'s communications with Ms. H. are similar. Ms. H.'s communications about Mr.

U. and J. contradict the suggestion that he was controlling her movements; that he made her get pregnant; or that she did not want a child. (

d) It appears that Mr. U. deposited large sums of money into their joint bank account. The balance was over $90,000 in September of 2015. Ms. H. had control over the family's joint finances. She appears to have transferred large sums of money into monetary instruments, "GICs", and transferred funds electronically. This materially contradicts her evidence about lacking financial control or being financially controlled by Mr. U. (

e) I was unable to discern evidence of verbal, mental or emotional abuse by Mr. U. towards Ms. H. in the messages. I accept that Mr. U. has provided all of the messages he could retrieve for the stated time period. There are references to holidays, time spent together, and references to other telephone communications between the couple. (

f) Many of the messages are in Spanish, but excerpts have been translated. However, there were also sufficient comments in English to understand the general nature of the relationship and loving nature of their exchanges. I was not able to view any threatening or intimidating messages. The messages reveal that Mr. U. was thoughtful and encouraging towards Ms. H. This contradicts the impression left by Ms. H.'s evidence contained in the October 18th Orders. (

g) The messages also reveal that Ms. H. participated in many activities outside the home related to her education, her volunteer work, social events and fitness. The bank's spending records show that Ms. H. was actively engaged in her community and attended numerous businesses in the community. They contradict her assertion that she was isolated from the community or that Mr. U. caused her to be isolated. (

h) He recalls the police attending the residence after he had returned with J. from a walk. Ms. H. appeared to have called the police about their son being missing. Ms. H. told the police that she had been "mistaken". This contradicts Ms. H.’s evidence that she called the police when Mr. U. had been unkind or had committed some sort of serious conduct. That was the impression she left with the court on October the 18th. (

i) Mr. U. denies all allegations of physical abuse or sexual abuse regarding any person. He also denies the allegation of drug and alcohol abuse, as well as illegal or criminal activity. The text messages substantially and materially contradict Ms. H.'s assertions. He points out that he cannot be under the influence of drugs or alcohol while working as a pilot. He also testified that he takes heart medication for a cardiac condition. (

j) He referred to the couple taking marriage counselling in August and / or September of 2016. The text messages reference communication and long-distance problems that were discussed between them in October of 2016. (

k) In October 2016, Mr. U. and Ms. H. exchanged messages in which they discussed and organized their joint relocation to Calgary in November of 2016. The messages reveal that the move was planned so that Mr. U. could take identified work there. (

l) I observed more brevity in Ms. H.'s responses to Mr. U. in October, but loving messages continued to be sent by her. The

messages also contain a lot of symbols to express emotion, although the printouts have obvious gaps and squares where it appears that asymbol or photo had been used during a message that was not represented or did not show up on the printout. (

m) In particular, Ms. H. continued brief but responsive and caring messages between October 18 to October 20, 2016. On October20, 2016, Ms. H. told Mr. U. to "have a great day" at 12:53 p.m., time zone unknown. By 1:20 p.m., Mr. U. had discovered that Ms. H.had left him, taking J. She later messaged him that she could explain and that J. was fine. Those are her last messages to him. Mr. U.'sanguish at her actions is clear from the messages. He has not seen his son since 20 September 2016. (

n) The exhibits also contained photographs and copies of airline tickets. The photographs depict the family together on holidays.Ms. H. appears to be enjoying herself. The airline tickets do not cover all of the periods of time referred to by Mr. U. in his November 17affidavit. However, I accept his evidence on the general nature of his travel and time with his family as described above. [49] I find that the exhibits to Mr. U.'s evidence support and corroborate his affidavit and testimonial evidence. These exhibitsdirectly contradict the substance and implications of Ms. H.'s evidence.

The supporting materials reveal that Ms. H. has withheld,concealed and fabricated substantial and material parts of her evidence. The Honourable Judge E. Gordon relied on that evidence. Hadshe been aware of the full circumstances of the relationship and supporting evidence, she would not have granted the October 18thOrders. Legal Analysis [50] I now turn to the legal principles that I must apply. I am guided by the decision in Ahmed v. Hawthorne, 2016 ONSC 571, whichcites the decision of Meek v.

Fleming, [1961] 3 All E.R. 148, at p. 154: Where a party deliberately misleads the court in a material matter, and that deception has probably tipped the scale in his favour (or even,as I think, where it may reasonably have done so) it would be wrong to allow him to retain the judgment thus unfairly procured… The court in Ahmed at para. 24 further describes the harm in ex parte proceedings where the other party has received no advance noticeof the proceedings.

This is especially the case where a party’s conduct includes failing to serve the party opposite and coming to court, effectively, on awithout notice basis. Case law governing the obligations on parties who come to court without notice establish a very high standard oftransparency and accountability. Parties who seek relief without notice must make full and frank disclosure of all material facts.

Thefailure to do so can itself lead to the order made being set aside even where the moving party establishes that he ultimately had goodgrounds for the relief sought. [51] Accordingly, I accept that I have a duty to protect the integrity of the court process and inherent or residual powers, which maybe used when it is necessary and just. I also accept that I have the authority to find that an order was obtained by fraud, and set aside sucha judgment ab initio. [52] I rely upon the case of R.K. v. McBride, [1994] B.C.J. No. 2791 (BCPC) at paras. 30 to 33.

The Honourable Judge Mondinrefers to numerous decisions to support the existence of his authority: Craig v. Gidyk, [1994] B.C.J. No. 1591 (BCPC) at pp 10-11;obiter dictum in Dr. "A" v. Mr. "C" and Mrs. "C", (BC SC), [1994] B.C.J. No. 488 (BCCA) at p. 11, which wascited in the Craig decision; pages 24 and 51 of an

article entitled "The Inherent Jurisdiction of the Court", (1970), 23 Curr. Leg. Prob.23, which was cited by Chief Justice Esson in the Dr. “A” v. Mr. “C” and Mrs. “C” decision; Cocker v. Tempess, (1841), 151 E.R. 864(Exch.), cited in the Craig decision. By concealing, withholding and fabricating material information, I find that Ms. H. obtained the October 18th Orders by fraud, on thebalance of probabilities. Should I declare that Ms. D-H. unlawfully removed the child from BC? [53] I now turn to the analysis of evidence relating to Mr.

U.'s application to have me modify my previous November 10, 2016,ruling, and declare that Ms. H. unlawfully removed the child from British Columbia. [54] I have assessed whether Ms. H. had any lawful authority (at any time) to remove J. from British Columbia on that date. First, Ihave considered whether Ms. H. had lawful authority to remove or relocate J. from BC based on the October 18th Orders. The shortanswer is: no. [55] On October 18th, 2016, Ms.

H. specifically asked the court whether she had legal custody of J. since he had been living with her.The court confirmed that she was the guardian and the primary caregiver of J. because she was the birth parent and J. lived with her. Sheinquired whether the information needed to be in writing. The court made an order that Ms. H. was the guardian and primary caregiver ofJ. The court referenced that Ms. H. may want to move. Ms. H. specifically told the court that as a student she did not intend nor want tolive in Canada. She wanted to leave Canada and return "home". She agreed that "home" was Mexico. Ms.

H. specifically stated that "Iwant to leave Canada when I'm -- I'm allowed to do that…" I find that the Honourable Judge E. Gordon's reference to moving related toMs. H. moving from her current residence, not from BC. The order sought and obtained related in part to her residence in Langley, BC. [56] Ms. H. also informed the court that she was currently doing her practicum and working with immigration organizations. After sheconcluded her practicum, she clearly indicated that she intended to seek employment with a hospital.

She left the impression that she wasnot leaving British Columbia in the near future, due to her educational obligations. I find that the Honourable Judge E. Gordon at no timeauthorized or permitted Ms. H. to leave BC with J. either during the court proceedings or in the October 18 Orders. While the courtindicated that it understood her desire to return to Mexico, Judge Gordon did not legally authorize the relocation of J. from thejurisdiction. I note that Ms. H. was aware that she needed legal permission for such relocation. [57] Also, Mr.

U. was always permitted in law to apply to set aside the October 18th Orders since he was not given prior notice of

those proceedings. I find that he did not receive service of the October 18th court documents or orders prior to Ms. H.'s removal or relocation of J. from BC on October 24, 2016. [ 58 ] Second, I have considered whether Ms. H. had any other lawful basis for moving or relocating J. outside of BC. The short answer is: no. The Family Law Act (“the FLA ”) contemplates the following applicable principles to this case. (

a) A court does not need to make an order declaring guardianship. The court is permitted to acknowledge guardianship. Biological parents are considered parents and generally guardians unless a court otherwise orders, pursuant to s. 26(1), 39(1) and (2). An exception exists if a parent has never resided with a child, pursuant to s. 39(3). In this case, Ms. H. attempted to portray Mr. U. as having little or infrequent contract with her and J. after his birth, and not residing with them in BC. I am unable to accept this portrayal given the evidence before the court.

The default position is that both parents are guardians unless a parent applies to the court to remove the other parent as a guardian. (

b) The location of a child's residence impacts the parental rights of the other parent. A child's guardian cannot simply change the location of that child's residence if that change can reasonably be expected to have a significant impact on the child's relationship with the other parent, pursuant to s. 46(1)(c). (

c) The Family Law Act requires the guardian who wants to change the child's residence to comply with very specific procedures, including providing advance notice of the proposed location to the other guardian, pursuant to ss. 65 to 67. If the other guardian objects to the relocation, the original guardian or the first guardian must apply to the court and seek a court order to expressly permit the relocation pursuant to ss. 68 to 70. The court may refuse to allow the child to be relocated. (

d) The court may order that a person not remove a child from a specified geographical area, pursuant to s. 64(1). The FLA also provides for conditions if a person proposes to remove a child and is unlikely to return to BC, which includes the surrender of passports, pursuant to s. 64(2). [ 59 ] Ms. H. provided no notice whatsoever to Mr. U. of her intention to remove or relocate J. from BC. She did not comply with the requirements of the FLA . Accordingly, I find that the October 18th Orders and Ms. H.'s non-compliance with the relevant provisions of the FLA render her removal or relocation of J. unlawful.

I declare that Ms. H. unlawfully removed J. from BC on October 24, 2016. [ 60 ] Third, I have considered whether my finding of fraud concerning the October 18th Orders impacts whether I should declare that Ms. H. unlawfully removed J. from BC. Since I have found that she was not permitted to remove or relocate J. from BC by virtue of the October 18th Orders, and / or the relevant terms of the Family Law Act , it is not necessary for me to decide this question.

However, for clarity I will say this: Given my finding that the October 18th Orders were obtained by fraud, those orders were invalid at the time they were pronounced. Consequently, the requirement to comply with the Family Law Act , as well as the now-existing orders concerning J., all establish that Ms. H. has unlawfully removed J. from BC.

SUMMARY OF CONCLUSIONS [ 61 ] I now will provide a

summary of the conclusions. [ 62 ] On 10 November 2016, I set aside the October 18th Orders due to the significant contradictions between the evidence of Ms. H. on the 18th of October, and the subsequent evidence of Mr. U. I found that the veracity of Ms. H.'s evidence was seriously questioned. [ 63 ] Today I conclude that Ms. H. concealed, withheld and fabricated evidence for the purpose of obtaining the October 18th Orders. [ 64 ] This court finds that the protection order granted by the Honourable Judge E. Gordon in favour of B.D-H., dated October 18, 2016, and the order granted by the Honourable Judge E.

Gordon that B.D-H. is the guardian and primary caregiver of the child, J.U., a.k.a. J.U-D., a.k.a. J.D-H., were obtained by fraud. [ 65 ] Accordingly, this court finds that the protection order granted by the Honourable Judge E. Gordon in favour of B.D-H. dated October 18, 2016, and the order granted by the Honourable Judge E.

Gordon that B.D-H. is the guardian and primary caregiver of the child, J.U., aka J.U.D., aka J.D.H., are void ab initio , meaning invalid, and are hereby set aside as if they had never been granted. [ 66 ] I modify my ruling of 10 November 2016, such that the term relating to the removal of J. shall read as follows: The court finds that B.D.H. unlawfully removed the child, J.U., a.k.a. J.U-D., a.k.a. J.D-H., born the [omitted for publication], from BC on October 24, 2016. As part of this order, any party affected by this order may apply to vary or set aside this order on 14 days notice to Mr.

U. or his counsel. [ 67 ] Also, counsel for Mr. U. will draft this order forthwith. I will sign it today. My order of December 2, 2016, shall append or have appended to it all previous court orders from the Provincial Court, excluding the 18th of October orders. The BC Supreme Court of November 3, 2016, relating to J. shall also be appended to today's order. [ 68 ] Any transcript that is prepared of these reasons will include a copy of all court orders made up to today's date in relation to Ms.

H. and J. in the Provincial Court, including the October 18th Orders, as well as the Supreme Court decision of November 3, 2016. (ORDER CONCLUDED)