P.E.K. v. R.A.A., 2022 BCPC 278

Citation: P.E.K. v. R.A.A. 2022 BCPC 278 Date: 20221212 File No: F-19485 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: P.E.K. APPLICANT AND: R.A.A. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Counsel for the Applicant: N. Tiwana Counsel for the Respondent: K. Heinrichs Place of Hearing: Port Coquitlam , B.C. Date of Hearing: October 6 and November 25, 2022 Date of Judgment: December 12, 2022

Introduction [ 1 ] The parties are the parents of a child born on [omitted for publication]. [ 2 ] A trial is scheduled for April 3 to 5, 2023 on the issues of parenting arrangements, child and spousal support, and Ms. K.’s wish to relocate to Pasadena, California. [ 3 ] Ms. K. asks for an interim order permitting her and the child to relocate to Pasadena, California ahead of the scheduled trial date. Mr. A. objects to this request. At this hearing, I am dealing solely with the issue of Ms. K.’s interim relocation to Pasadena, California.

Background [ 4 ] The parties began to live together in a marriage-like relationship on December 1, 2019. Their child was born on [omitted for publication], 2020. Ms. K. also has a child from an earlier relationship who was born in 2014. The parties separated on December 18, 2021. [ 5 ] On December 29, 2021, charges were laid against Mr. A. under the Criminal Code, R.S.C. 1985, c. C-46 (“the Criminal Code ”), alleging that:

a) On or about January 4, 2021, he assaulted P.E.K.

b) Between July 1 to July 31, 2021, he sexually assaulted P.E.K. [ 6 ] A trial concerning the Criminal Code charges is scheduled to commence on July 4, 2023. [ 7 ] On December 30, 2021, Ms. K. filed an Application About a Family Law Matter . Ms. K. applied for orders regarding parenting arrangements, child support and spousal support. Ms. K. opposed any order allowing Mr. A. parenting time and sought to have all parental responsibilities. [ 8 ] Mr. A. filed a Reply on January 20, 2022.

He sought shared parental responsibilities, equal parenting time, an order for child support based on a set-off, and he disagreed with paying spousal support. [ 9 ] On March 8, 2022, Judge Brown ordered that Mr. A. have parenting time on Wednesdays from 4 p.m. to 7 p.m.; Sundays from 10 a.m. to 7 p.m.; and such other time as agreed. [ 10 ] On May 10, 2022, Judge Campbell made an interim without prejudice order that Mr. A. pays child support of $1,121 a month and spousal support of $1,151 a month. Ms. K. was also allowed to travel to Washington State with the child. [ 11 ] On May 12, 2022, Ms. K. emailed Mr.

A. to advise him of her intent to relocate to Pasadena, California effective August 1, 2022. [ 12 ] On May 17, 2022, Mr. A. filed an Application for Order Prohibiting the Relocation of a Child . [ 13 ] On August 5, 2022, Judge Campbell made an interim without prejudice order allowing Mr. A. parenting time each week from Friday 2 p.m. to Sunday 4 p.m. and permitting Ms. K. to move to Bellingham with the child. Judge Campbell held that this move was not a relocation as it was a temporary stay.

At the time, the hearing of the relocation application was set for Tuesday, September 6, 2022. [ 14 ] On the afternoon of Friday, September 2, 2022, counsel for Ms. K. sent a further affidavit to counsel for Mr. A. Monday, September 5, 2022, was the Labour Day holiday. [ 15 ] On September 6, 2022, the relocation application came before me. Given the late delivery of Ms. K.’s affidavit, I adjourned the application to October 6, 2022, to allow Mr. A. an opportunity to respond. I granted permission for the parties to rely on previously filed affidavits and I allowed Mr.

A. the opportunity to file a responding affidavit. I ordered that the parties not file any further affidavits unless permitted by the court. [ 16 ] At the September 6, 2022 appearance, the parties advised me that the issue for the hearing was whether there should be an interim order to allow Ms. K. to relocate to California pending the trial set for April 3 to 5, 2023. [ 17 ] On September 20, 2022, Mr. A. filed an Application About a Priority Parenting Matter to seek an order that Ms. K. relocate back to the Lower Mainland, which was returnable on October 6, 2022. On October 6, 2022, Ms.

K. filed a Written Response to Mr. A.’s application opposing the order sought. [ 18 ] At the hearing on October 6, 2022, I was told of a new development that occurred on September 8, 2022. Mr. A.’s evidence concerning this was set out in his affidavit filed on September 16, 2022. I ruled that Ms. K. could testify and respond to Mr. A.’s affidavit evidence about this incident. Mr. A.’s counsel was permitted to cross-examine Ms. K. afterwards. [ 19 ] The evidence of the new development was as follows. On September 8, 2022, Ms. K. sent Mr.

A. an email attaching a COVID- 19 test result for their child, showing that she tested positive for COVID-19. The test result displayed an identifier, Accession ID: [omitted for publication] and was performed by a company called Avero Diagnostics. This positive test result led to the cancellation of Mr. A.’s scheduled parenting time. [ 20 ] Mr. A. raised concerns about the validity of the test result taken on September 8, 2022. He learned of two prior negative COVID- 19 test results for the child, occurring on August 25 and September 1, 2022.

The September 1, 2022 test result had an Accession ID [omitted for publication], the same identification number as the September 8, 2022 test result.

[21] Mr. A.’s counsel contacted Ms. K.’s counsel to seek further information about the test results, but to date has not received asatisfactory explanation. Mr. A.’s concern is that the September 8, 2022 test result was falsified and that this raises a question of whetherMs. K. is acting in good faith in seeking the relocation. [22] Ms. K. disputed the suggestion that she falsified the September 8, 2022 test result. She said the test result was emailed to her.After she sent the test result to Mr. A., Ms. K. noticed that the test result had some errors on it.

The result showed an incorrect testinglocation and listed the wrong doctor. Ms. K. said she requested that Avero Diagnostics release the test results to her but she has notreceived a response from the company. [23] The relocation application commenced on October 6, 2022, and was completed on November 25, 2022. [24] One of the reasons for Ms. K.’s wish to relocate to California was a job offer to work at a restaurant, which is referred to in heraffidavit materials. On November 25, 2022, counsel for Ms. K. advised me that this job offer was withdrawn.

I was told though that theprospective employer may open a second restaurant and would like Ms. K. involved with that. There is of course no actual evidence ofthis offer. Use of Affidavit Evidence [25] The parties have filed multiple affidavits without prior court permission. In Provincial Court proceedings, affidavit evidence canonly be relied upon with court permission. As I stated in the decision K.T. v. M.Z., 2022 BCPC 70: [21] Under the Provincial Court (Family) Rules, which were repealed May 17, 2021, Rule 13(3) required the court’s permissionbefore evidence could be given by way of an affidavit.

The current Provincial Court Family Rules do not contain an equivalent provisionto s. 13(3) of the old Rules. However, Rule 112(1)(i)(iii) does allow a judge at a trial preparation conference to permit affidavit evidenceat a trial. Rule 62(

m) allows a judge to make a case management order as permitted under Rule 112(1). Rule 61 allows a judge to make acase management order at any time. It is therefore through this convoluted process that I am able to permit the use of affidavit evidenceat trial. [26] In this case, I granted permission for the use of affidavits only for the interim relocation application. Application About a Priority Parenting Matter [27] Mr. A. applied by way of an Application About a Priority Parenting Matter filed on September 20, 2022, for an order that Ms.K. return to the Lower Mainland.

Such an order does not fall within the definition of a “priority parenting matter” as found in Rule 2 ofthe Provincial Court Family Rules. If anything, this is a request to vary Judge Campbell’s interim order of August 5, 2022, which isgoverned by s. 217 of the Family Law Act, S.B.C. 2011, c. 25 (the “Family Law Act”) and Rule 156(1)(f). [28] The Application About a Priority Parenting Matter filed on September 20, 2022, is dismissed. Family Law Act [29] Both counsels agree that this application is governed by Division 6 of

Part 4 of the Family Law Act, specifically ss. 65 to 71.These sections apply if there is an existing order or agreement dealing with parenting arrangements. At the time the Application About aFamily Law Matter was filed, there was no existing parenting arrangement order in place. The relocation issue arose after Judge Brownmade the interim parenting time order on March 8, 2022. Therefore, I agree that Division 6 of

Part 4 of the Family Law Act governs. Interim Order for Relocation [30] Counsel for each party provided me with caselaw about the appropriateness of making an interim relocation order, which may bepotentially prejudicial to Mr. A. [31] In D.R.K. v. S.G.G., 2013 BCSC 2107, after the commencement of legal proceedings and one interim parenting time order, theapplicant gave notice of her plan to relocate with the child to Vernon, B.C. The respondent objected and sought an order preventing therelocation.

Master Scarth adjourned this matter to trial, stating as follows: [16] Mobility cases are generally recognized to be one of the most difficult decisions the Court is asked to make in family law cases.D.K. says that S.G. will have as much time with S. as he does under the JCC order. However, in relying on Division 6 of the Family LawAct, she acknowledges that her proposed move is a "relocation", i.e. that it can reasonably be expected to have a significant impact onS.G.’s relationship with S.: s. 65(1); Berry v.

Berry, 2013 BCSC 1095, at para. 32. [17] In my view, the issue as to whether D.K. can move to Vernon with S. is not one which should be decided on an interimapplication. Rather it should be addressed at a trial, along with the issue of custody: see Falvai v. Falvai, 2008 BCCA 503, para. 25,citing Nunweiler as to the blended approach to be followed in determining issues of mobility and custody.

An interim order allowingD.K. to move would have the effect of a final order and interim proceedings are not geared for final determination of issues: Newson v.Newson (1998), (BC CA), 65 B.C.L.R. (3d) 22 (C.A.), at para. 11; S.J.F., at para. 50. An interim determination onthe merits is especially difficult where there is conflicting affidavit evidence on the factors to be taken into account when assessing thechild's best interests. [18] In this case, S.G. has taken the position that D.K.'s reasons for the move to Vernon are suspect.

Ulterior motives which amountto a "thinly disguised attempt to thwart contact" are relevant as to whether a parent is acting in a child's best interests (Stav v. Stav, 2012BCCA 154, para. 89). If Division 6 of the Family Law Act applies, reasons for relocating may be taken into account when assessing“good faith”: s. 69(5); Hadjioannou v. Hadjioannou, 2013 BCSC 1682. If D.K.’s reasons are to be assessed, that is an exercise bestundertaken at trial, on viva voce evidence.

[19] It is D.K.’s position that this application needs to be addressed urgently because of her precarious financial and employment position. If the circumstances were that D.K. had received notice from Canada Post, and that she was admitted to an educational program in Vernon early in the new year, it might be necessary to address the important issue of relocation on an interim basis. However that is not the case here. While Canada Post faces an uncertain future given the reduction in reliance on traditional mail delivery, D.K. has not received notice as yet.

She has made a consumer proposal to address her debt load. The family home is under threat of foreclosure but, to my understanding, no foreclosure proceedings have been commenced. In addition, D.K. has yet to determine which educational programs she will be able to follow. I am not satisfied that the programs she says she will apply for are available to her with her current qualifications. [20] All in all, there is no urgency made out such that the application cannot be addressed at trial. Early trial dates are available on family matters.

In the interim, S.’s best interests are addressed by the parenting arrangements agreed to by the parties and reflected in the JCC order, with variations as necessary. [ 32 ] In Nolie v. Reece , 2016 BCSC 2201 , the respondent Ms. Reece applied for an interim order to allow her and the children to relocate from Campbell River to Massett, B.C. Mr. Nolie opposed the order. [ 33 ] Madam Justice Fleming stated in Nolie v. Reece : [27] Relocation is, as Master Scarth said in D.R.K v. S.G.G. , 2013 BCSC 2107 , one of the most serious decisions the court is asked to make.

It can have a lifelong impact on a child and his or her relationship with a non-moving parent. When granted at the interim stage, it can be tantamount to a final order [ Emphasis added ]. [28] The authorities indicate that courts are reluctant to consider relocation applications at the interim stage particularly where the move would significantly reduce the non-moving parent's time with the child. [29] In D.R.K. , Master Scarth granted the father's application to prevent the mother from relocating their three-year-old child from Pitt Meadows to the Okanagan.

The mother who was the child's primary caregiver had notified the father of her intention to move the child to Vernon. She argued the application was urgent because of her precarious financial and employment position. Master Scarth concluded that urgency had not been established and the issue of relocation should be addressed at a trial along with the issue of custody. [30] By contrast in C.A.P. , 2015 BSCS 183, Justice W. Harris granted the mother's interim application to relocate the parties' two- year-old child from the interior of British Columbia to White Rock.

Unlike here, the proposed relocation did not significantly reduced the father’s time with the child. The father was the chief of a Band located somewhere in the Province's interior. After separation, the mother and child had remained in the family home located near Ashcroft and the father had moved to Ashcroft. The father's work commitments, however, took him to the Lower Mainland and Merritt most of the week. The mother had already moved when the hearing occurred. She proposed returning with the child to the father's community three days every other weekend, to accommodate his work

schedule and allow the child to spend time not only with the father but also his paternal grandparents. She also proposed additional time in the Lower Mainland where the father worked two to three days a week. The father argued the mother should return with the child to his parents' ranch located close to the family home.

There was no dispute the mother had been the primary caregiver to the child. [31] Acknowledging the cases where the courts had refused interim applications for relocation, Justice Harris found the circumstances before her made it unreasonable to expect the mother to remain living with the father's parents, and determining relocation on an interim basis, appropriate. She concluded it was in the child's best interest to allow the move. [ 34 ] In the decision K.W. v N.Q , 2021 BCSC 2495 , Mr. Justice Taylor commented on Nolie v.

Reece , stating: [34] I fully agree with the statement of Madam Justice Fleming that a relocation application is one of the most serious decisions the court is asked to make, even on an interim basis. However, I do not accept that the seriousness of the decision, on its own, has the effect of legally transforming an interim relocation order into a final order. If this were true, I would expect this principle to be reflected legislatively in the FLA , which clearly does permit interim relocation orders.

Indeed, I note that the relocation application being considered in Nolie was itself an application for an interim order. [35] In my view, the principle asserted by K.W. that interim relocation orders should necessarily be treated as final orders does not follow logically or necessarily from the reasoning in Nolie .

Rather, I interpret Madam Justice Fleming’s use of the words “tantamount to a final order” as standing for the more modest proposition that, due to the serious implications for the child, courts should be reluctant to grant relocation applications on an interim basis and should in many cases defer such applications to trial, where more fulsome evidence can be presented and a final order can be more adequately crafted. [36] Applying the logic in Nolie to the fact of this case, in my view, leads to a conclusion that is quite opposed to the proposition asserted by K.W.

K.W. is suggesting that a great deal of deference at trial should have been given to the Motion Judge Order because it involved a serious issue. However, in my view the logic in Nolie leads in the opposite direction, namely, that the interim order in this case should properly have been given little weight by the Trial Judge because the preferred approach set out in the case law is to defer interim relocation decisions and allow these matter to be decided at trial.

This is particularly the case in this proceeding, given that the Motion Judge actually denied the interim relocation application, and therefore did not create the kind of “lifelong impact on a child” referenced as a risk in Nolie . [ 35 ] I agree that an interim order for relocation is not effectively a final order. However, the consequences of an interim order may have a significant impact on any final order, and I will discuss this further in my Reasons. [ 36 ] There is no absolute prohibition against interim relocation orders. In the decision K.H.D. v.

O.O.M ., 2022 BCSC 1525 , Master Bilawich made an interim order permitting the relocation of two children from Surrey, B.C. to Florida. The court stated in para. 121: [121] While it did not involve an interim application for relocation, the court of appeal’s decision in Hellberg v. Netherclift , 2017 BCCA 363 is instructive. It addresses the importance of the court having a fully rounded evidentiary record when addressing a child’s

best interests. That case involved an appeal from a

summary trial decision where the chambers judge had allowed the respondent to relocate the parties’ child from BC to the United Kingdom so she could pursue more lucrative employment. At the initial hearing, the parties had agreed the matter was suitable for disposition by

summary trial. They lacked the financial resources necessary for a traditional trial and desired a prompt resolution. At para. 72, the court of appeal commented on the importance of a fully-rounded analysis of the child’s best interests: 72 The importance of considering the best interests of the child "in the round" can be traced to this Court's judgment in Hejzlar v. Mitchell-Hejzlar , 2011 BCCA 230 per Saunders J.A. at para. 46.

Although the expression was used in a particular context in Hejzlar , it is one of general application and simply means that consideration of the child's best interests requires a fully-rounded analysis that takes into account all relevant factors. [ 37 ] Master Bilawich went on to say: [122] A preliminary issue is whether it is appropriate to decide the respondent’s relocation application on an interim application, as opposed to requiring that this be addressed at trial.

While there is considerable conflicting affidavit evidence and some gaps in the available evidence, there is also substantial uncontested evidence indicating a pattern of recent questionable actions on the claimant’s part. In my view these qualify as harassment which can be fairly characterized as a form of ongoing family violence. This appears to be having an adverse impact on the well-being of the children and is contrary to their best interests.

In these circumstances, I consider it to be appropriate to address relocation on an interim basis, relying on the available uncontested evidence. [ 38 ] The decision in C.A.P. v. M.S.P , 2015 BCSC 183 , referred to in Nolie v. Reece , is another example where an interim order for relocation was made.

In discussing whether an interim order permitting relocation should be made, Madam Justice Harris stated: [63] The respondent argues that, on an interim relocation application, the court should maintain the status quo, and the status quo is that C.P. should remain in the Territory, which has been his home since birth. [64] The respondent relies on decisions of the court which have refused interim applications for the relocation of children. I note that those decisions were based on the specific circumstances of the cases before the court and unlike the circumstances here.

For example, in D.R.K. , the court concluded that there was no urgency to the application, such that the application could not be addressed at trial, and held that, in the interim, the parenting arrangement in the JCC order, with variations as necessary, should continue.

Similarly, in McKenzie the court found that the relocation application was premature and not justified where there was insufficient evidence that the parent seeking to relocate had to move at that time. [65] In this case, I have accepted that, in the circumstances, it is not reasonable to expect the claimant to remain at the Three Sisters given the particular demands associated with the remote location, and the tensions which have developed between the claimant and the respondent.

The Best Interests of the Child [ 39 ] An order for relocation deals with parenting arrangements for the child, even if an on interim basis. Therefore, I must only consider the best interests of the child. The factors I must consider include but are not limited to those which are listed at s. 37(2) of the Family Law Act . The child's health and emotional well-being [ 40 ] Ms. K. said she has been the child’s primary caregiver since birth. She denies that Mr. A. was involved in caring for the child during the relationship. [ 41 ] Mr.

A. said an interim relocation will result in the loss of regular parenting time with the child. At this time, Mr. A. sees the child on weekends. Ms. K.’s proposal for parenting time if she is allowed to move would have Mr. A. seeing the child for a period ranging from 5 days to 14 days, every two months. Ms. K. proposes to pay for the costs of the flights on the assumption she will be working. She is not opposed to additional time if Mr. A. pays for the travel costs. [ 42 ] Ms.

K. also asked me to consider the best interests of her other daughter, however, this is not a consideration under the Family Law Act . [ 43 ] Mr. A. said an interim relocation order would result in a loss of regular consistent parenting time with him, and interfere with their deep and loving relationship, as well as the child’s relationship with Mr. A.’s family. The child's views, unless it would be inappropriate to consider them [ 44 ] Both parties agree that at the age of two, the child is too young for the court to consider her views.

The nature and strength of the relationships between the child and significant persons in the child's life [ 45 ] Ms. K. said she has been the child’s primary caregiver since birth with minimal assistance from Mr. A. Ms. K. also referred to a close relationship between the child and Ms. K.’s other daughter. [ 46 ] Mr. A. said he has been a full and equal partner in the raising of the child since birth, and that the child enjoys spending time with his family in B.C. The history of the child's care [ 47 ] Ms. K. maintained that she has been solely responsible for the child’s care.

[ 48 ] Mr. A. said both parents have been joint caregivers of the child and that they both equally raised her. The child's need for stability, given the child's age and stage of development [ 49 ] Ms. K. said the child should be allowed to create connections with both sides of her family, and that the child is too young to create connections to a province or city. I presume she refers to connections to Vancouver, B.C. [ 50 ] Mr. A. said the child has lived in B.C. her entire life and has never been to California. He argued that a move to California will result in instability.

Furthermore, the potential that the child is ordered to return to Vancouver following the final trial would create additional instability. 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 [ 51 ] Ms. K. said the parties have been able to communicate with each other to facilitate parenting time, and she is agreeable to facilitating electronic/virtual parenting time visits. [ 52 ] Mr.

A. said an interim relocation would detrimentally affect the amount of time he can spend with the child and his ability to parent the child. He argued that Ms. K. seeks to minimize his role in the child’s life. 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 [ 53 ] Ms. K. alleged that there has been family violence against her and referred to the fact Mr. A. is facing trial for assault. [ 54 ] Mr. A. disputed the allegations of violence. He referred to Ms.

K. contacting him despite a Criminal Code release order prohibiting contact. [ 55 ] There has been no finding by a court as to whether there has been family violence. 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 [ 56 ] As I stated above, there is a dispute about whether any family violence has occurred.

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 [ 57 ] Ms. K. said the parties have been able to communicate to arrange parenting time. [ 58 ] Mr. A. said Ms. K. has disregarded past court orders, and he referred to the allegedly falsified COVID-19 test results which I discussed earlier.

Any civil or criminal proceeding relevant to the child's safety, security or well-being [ 59 ] A trial is set for July 2023 regarding the criminal charges against Mr. A. [ 60 ] Mr. A. is entitled to be presumed innocent until proven otherwise beyond a reasonable doubt. Other Considerations [ 61 ]

Section 37 lists various factors to consider when looking at the best interests of the child. However, the list is not exhaustive and I will consider other factors in determining what is in the best interests of the child in the context of an application for an interim relocation order. From my review of the case law, relevant considerations include the following:

a) To what degree will an interim relocation order change the status quo between the parties?

b) Will an interim relocation order result in the creation of ties between the child and the new home?

c) Will an interim relocation order cause a loss of ties between the child and the former home?

d) What can be done on an interim basis to preserve the child’s ties with a former home or the non-relocating guardian? What is the relocating guardian’s proposal in this regard?

e) Would a final court order reversing an interim order of relocation be contrary to the child’s best interests?

f) Is there any urgency requiring an interim relocation?

g) Would an interim relocation order unfairly prejudice the position of the party opposing the relocation at the hearing for a final order?

h) Is there a sufficient evidentiary basis to make an interim order? [ 62 ] An interim order permitting relocation based on incomplete evidence is potentially prejudicial to the non-relocating parent. I must be sure that a sufficient evidentiary basis exists for the order.

[63] In this case, the parties agreed that this application may proceed based on affidavit evidence. However, Mr. A. argued that theevidence before me is incomplete and I should not make an interim order. [64] In the Supreme Court, an application based on affidavit evidence is commonly referred to as a

summary trial. The suitability of amatter for a

summary trial is the subject of considerable discussion and the leading case is Inspiration Mgmt. Ltd. v. McDermid St.Lawrence Ltd., (BC CA). This decision discussed what was then Rule 18A of the BC Supreme Court Rules dealingwith a

summary trial application. [65] I refer to the reasons of Chief Justice McEachern: [54] The test for R. 18A, in my view, is the same as on a trial. Upon the facts being found the chambers judge must apply the law andall appropriate legal principles.

If then satisfied that the claim or defence has been established according to the appropriate onus of proofhe must give judgment according to law unless he has the opinion that it will be unjust to give such judgment. [55] In deciding whether the case is an appropriate one for judgment under R. 18A, the chambers judge will always give fullconsideration to all of the evidence which counsel place before him but he will also consider whether the evidence is sufficient foradjudication.

For example, the absence of an affidavit from a principal player in the piece, unless its absence is adequately explained,may cause the judge to conclude either that he cannot find the facts necessary to decide the issues, or that it would be unjust to do so. Buteven then, as the process is adversarial, the judge may be able fairly and justly to find the facts necessary to decide the issue. [66] Mr. Justice Lambert stated: [71] On an R. 18A application the chambers judge must find the facts necessary to decide the issues of fact and law.

That does notmean that he should be asked simply to choose between one affidavit and another. He is not supposed to be guessing at a set ofhypothetical facts. He is seeking the real facts of the dispute, just as he would be doing at a full trial. So, as at a full trial, he must be ableto turn his mind to which participant and which observer of the events underlying the dispute could be expected to contribute, throughaffidavit or oral testimony, to a finding of the real facts.

And since ample notice, namely 14 days, must be given on an R. 18Aapplication, the chambers judge is entitled to know why the evidence of a relevant witness has not been made available in an appropriateform. It is not unjust for a chambers judge to give judgment without the evidence of a significant participant or observer of the events indispute, if the evidence has not been put forward and there is no good explanation. [72] So judgment should not be given under R. 18A(3) without asking these two questions: Has any party been denied an opportunityto produce relevant testimony?

Is there a conflict in the evidence, which the judge can not readily resolve, on a point of fact which couldaffect the result? If the answer is "Yes" to either question then the case is probably not ready for judgment. And the steps that must betaken to answer those questions "No" will indicate whether the best course is to manage the case to judgment under R. 18A(5) and (3) orto send the case to the trial list. Matters in Dispute [67] Each party has submitted multiple affidavits. Based on a review of them, the following are some of the issues in dispute:

a) The level of care of the child provided by Mr. A. during the relationship.

b) The extent of Mr. A.’s contributions to household duties such as shopping.

c) Ms. K.’s ability to work and earn income while in British Columbia, including her efforts to seek employment. Ms. K. said Mr. A.prevented her from seeking work, but Mr. A. said that Ms. K.’s immigration status in Canada prevented her from working. Mr. A. saidMs. K. now has her permanent resident status and can work in Canada. Furthermore, she operated an online business while in Canadaand continues to do so.

d) Ms. K.’s efforts to seek accommodations in British Columbia. Mr. A. has provided considerable evidence of availableaccommodations, and said Ms. K. has made no efforts to look for a place to live.

e) Whether there has been any family violence in the relationship, including whether Mr. A. is guilty of assault or sexual assault againstMs. K.

f) Whether Ms. K. is acting in good faith in seeking relocation. The validity of the September 2022 COVID-19 test is relevant here.

g) Whether Ms. K. has any bona fide employment opportunities or access to accommodations in Pasadena, California.

h) Whether Ms. K. has any bona fide ties to Pasadena, California. Before moving to B.C., Ms. K. had not lived in California for manyyears. The child has never lived in California. [68] In the decisions Nolie v. Reece, and C.A.P. v. M.S.P., both of which I referred to earlier, the applicant was living in unreasonablecircumstances, such as being forced to reside with the respondent’s family. In the decision K.H.D. v. O.O.M., there was substantialuncontested evidence of family violence to support the interim relocation. [69] Neither of those situations applies here. Furthermore, Ms.

K. is already living in Washington State by choice as a result of theAugust 5, 2022 order of Judge Campbell. Decision [70] I have concluded that I must dismiss the application for an interim relocation to Pasadena, California. [71] There are significant disputes in the evidence that can only be resolved at trial. I am not satisfied that the affidavit evidence

before me is sufficient to allow me to fully and properly adjudicate the application. [ 72 ] There is no urgency to relocate before the trial. [ 73 ] There are no recent allegations of family violence. Past allegations of family violence remain unproven and are contested. [ 74 ] There is no evidence that Ms. K. is in a precarious financial situation. She does not hold employment that she is at risk of losing if she does not relocate. [ 75 ] Mr. A. is prejudiced if an interim relocation is permitted as it will significantly affect his current parenting time schedule. Ms.

K.’s proposal for interim parenting time would allow Mr. A. to see the child every other month. She argues that her proposed

schedule will result in Mr. A. having a similar number of parenting time days with the child compared to the current schedule. In my view, this ignores the importance of frequency of parenting time. [ 76 ] I am concerned that if a final relocation order is refused, the child will be required to return to B.C., causing further instability in her life. [ 77 ] Overall, I am satisfied that it is not in the child’s best interests to relocate on an interim basis.

Summary of Orders [ 78 ] My order is as follows: The Application About a Priority Parenting Matter filed on September 20, 2022, by R.A.A. is dismissed. The application of P.E.K. for an order permitting an interim relocation of the child is dismissed. [ 79 ] I ask Mr. Heinrichs to draft and file the order after obtaining Ms. Tiwana’s approval as to the form of the order. _____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia