T.K. v. R.J.H.A., 2013 BCSC 2112

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: T.K. v. R.J.H.A., 2013 BCSC 2112 Date: 20131121 Docket: 12-2025 Registry: Victoria Between: T.K. Claimant And R.J.H.A. Respondent Before: The Honourable Mr. Justice Verhoeven Reasons for Judgment Counsel for Claimant: B. Contreras L. Weston-Baradoy Counsel for the Respondent: R.S. Gill J. Koch Place and Dates of Trial: Victoria, B.C. October 21-25, 28-31, and November 1 and 4, 2013 Place and Date of Judgment: Victoria, B.C. November 21, 2013 I.

Introduction [ 1 ] The issue in this case is whether the parties’ two children should be permitted to relocate from their present place of residence, Saanich, B.C., a suburb of Victoria, to the Greater Toronto Area of Ontario, as their mother desires. [ 2 ] As I will not be using the names of the parties or their children in this judgment, for convenience I will refer to the claimant as the mother and the respondent as the father. The children are a boy, aged 9, and a girl, aged 7.

As the initials of the children are the same l will simply refer to them as the son and the daughter. [ 3 ] In the circumstances of this case, an issue is the weight to be given to factors relating to the children’s bi-cultural heritage. The mother is of Chinese descent, and the father is Caucasian. The mother contends that the children would be better off in Toronto, where her family resides, and where there is a much larger Chinese-Canadian population than there is in Victoria.

She contends that in Toronto the children would have greater exposure to the Chinese aspect of their heritage and would be better able to learn to speak Cantonese, her native language, in part due to the greater degree of interaction with her family that would occur if they were to reside in Toronto. She also contends that, quite apart from the language and culture factors, the children would benefit from greater interaction with the many relatives both she and the father have in the Greater Toronto Area.

The father does not deny the value and benefit to the children of exposure to their Chinese heritage, or of learning Cantonese, but argues that the children are not culturally deprived in this respect while residing in Victoria, and that upon consideration of all relevant factors and considerations, the children’s best interests lie in them continuing to reside in Victoria. [ 4 ] The mother proposes that she be granted sole custody of the children, pursuant to the Divorce Act , R.S.C. 1985, c. 3 (2d Supp.) [ Divorce Act ], and that the children reside with her in Toronto.

Alternatively, she proposes that if the father relocates to Toronto, she and the father should have joint custody and that there be shared residency for the children on an approximately equal basis utilizing a week on and week off schedule. [ 5 ] The father proposes joint custody and shared residency and parenting of the children within the Capital Regional District, the region encompassing the city of Victoria and surrounding suburbs. II. Background Facts

[ 6 ] The parties were married in September, 2002. At the time they both resided in Victoria. The marriage ceremony took place in Toronto to accommodate the wishes of the bride’s family. A month before the wedding they purchased a three bedroom home in Saanich. Their son was born in October, 2004, and their daughter was born in August, 2006. They separated in January, 2012, when the mother demanded that they either move to Toronto as a family, or be divorced.

The father refused to agree to the move. [ 7 ] Although they separated in a formal sense, for the 22 months since separation they have continued to reside in the same home. Initially the parenting arrangements were quite informal but in the last nine or 10 months they have divided the parenting time on a roughly equal basis. [ 8 ] During the course of the trial they settled all property issues. As part of the settlement the father agreed to purchase the mother’s interest in the residence. She agreed to obtain alternative accommodation commencing December 1, 2013. [ 9 ] The mother is now 41 years of age.

She is a veterinarian. The father is 45. He is a mid- to senior-level manager in a local manufacturing company. [ 10 ] The mother was born in Hong Kong and came to Toronto with her immediate family in 1976 as a child of four. She has an older brother who is 43, and a younger sister, who is 40. Her sister is disabled and resides in a group home. Her mother is the youngest of five children. Her mother’s four older siblings all immigrated to Toronto prior to her mother’s immigration. Her father’s brother also immigrated to Toronto 10 or 15 years ago.

The mother has approximately 25 first cousins residing in the Toronto area. Her brother is married and has three children. His family resides in Markham, a suburb of Toronto. He has offered to assist the mother’s move to Toronto. If the children are permitted to move, the mother proposes that she would initially reside with them in her brother’s large home. [ 11 ] The father was born in Toronto. He is one of seven children. His father was born in Newfoundland, where his family has a long history. There was no evidence of his mother’s family history. Five of the father’s siblings continue to reside in Ontario.

He graduated from high school in Ontario. Early on he wanted to move to the West Coast, but his mother persuaded him to stay closer to home for his post-secondary education. He enrolled in chemistry studies at the University of Waterloo, in Ontario. However in 1990 before completing his studies there he explored moving to B.C. to complete his degree. He moved to Victoria. He completed a bachelor’s degree in chemistry at the University of Victoria. While studying at the University of Victoria he began working for his current employer, a manufacturer of plastic and other products.

Initially he worked in a summer job as a production worker. His work evolved over time. He began to focus on the company’s computer systems. He became a full-time employee in 1998. He continues to work for the same employer. Although his is not an accountant and has no formal information technology credentials, his title is now Financial Controller and Systems Manager. In early 2010 he enrolled in an Executive Masters of Business Administration (MBA) program at Royal Roads University, Victoria, which he completed in late 2011. [ 12 ] The mother grew up in Toronto.

Soon after the family immigrated to Canada her father started a small business manufacturing Chinese-style noodles. She, her brother and her mother all worked in the business. Through much hard work the business and the family prospered. Her parents are now retired. Her brother now owns and operates the manufacturing business, which continues to be successful. [ 13 ] The mother obtained a Bachelor of Science from the University of Guelph in 1994, and in 1998 graduated from the University of Guelph as a Doctor of Veterinary Medicine. Upon graduation she moved to Vancouver, B.C., where she had some friends.

As she put it, she initially moved to B.C. just to have some fun for a few years. She met the father in 1999. She was working as a locum (temporary, fill-in) veterinarian, and sharing accommodation in Vancouver with the father’s younger sister, who was studying at UBC at the time. He was living in Victoria where by then he had lived for several years. She moved to Victoria in 2000 in order to be with him. She began full-time work at a veterinary clinic in Victoria in 2000.

The parties lived in separate accommodation in Victoria until just before the wedding in September, 2002. [ 14 ] The mother worked full-time until the children were born. She took a maternity leave of one year on the birth of each child. She worked part-time, generally three days per week, until November, 2011. She has worked part-time since then as a locum veterinarian. If she moves to Toronto, she would like to continue to work part-time, three days per week. She contends that her employment prospects as a veterinarian are better in Toronto than in Victoria. She would like to buy a veterinary clinic there.

She contends that she has better prospects of buying a clinic in Toronto than in Victoria. [ 15 ] The father does not want to leave his current employer, where he has now worked for more than 20 years. He argues that in Toronto he is unlikely to be able to replicate his current employment, his employment prospects, and the lifestyle that he and the children enjoy in Victoria. [ 16 ] The son and the daughter are both enrolled in an elementary school very close to the family residence. The son is in Grade 4, and the daughter is in Grade 2. [ 17 ] The parties jointly retained a psychologist, Mr.

Robert Colby, to prepare an assessment under s. 211 of the Family Law Act , S.B.C. 2011, c. 25 [ FLA ].

Section 211 provides that the court may appoint a person to assess the needs of the children, their views, and the ability and willingness of the parties to satisfy the needs of the children, for purposes of legal proceedings relating to

Part 4 of the FLA (Care of and Time with Children) in a family law dispute. Although there was no court order formally appointing Mr. Colby under s. 211 , neither party objected to the admission of his evidence as an assessment under s. 211 and I will treat it as such. [ 18 ] At the age of 18 months the son developed a severe fever and temporary loss of muscle control, possibly in reaction to an immunization. His recovery took six months. It is thought that this attack may have caused some ongoing intellectual and physical deficits. He has had difficulties with gross and fine motor development.

He continues to have difficulties with fine-motor precision and dexterity. The son has been diagnosed with Attention Deficit Hyperactivity Disorder - Combined Type (ADHD). He is impulsive, hyperactive and easily distracted, and has difficulty maintaining focus and attention. His overall intellectual abilities are average. He has weaknesses in verbal and visual memory.

[ 19 ] The son also has a history of language and communications difficulties. In early 2011, when he was in Grade 1, the Saanich School District’s speech-language pathologist concluded that he had a mild to moderate language disorder, involving both his receptive and expressive language. The pathologist noted that he made excellent progress in speech and language following language therapy sessions from January to May, 2011. His academic performance has improved from Grade 1 to the most recently completed year, Grade 3.

His June, 2013 final progress report for Grade 3 indicates that, with special support, he can minimally meet grade level expectations in reading and writing. His performance in math was somewhat stronger. Although his language skills have shown improvement, he was recently formally diagnosed with “Communication Disorder Not Otherwise Specified.” These diagnoses have resulted in him being identified by the school district as a special needs student, based on a learning disability. He therefore qualifies for special educational support through an Individual Education Plan (IEP).

The IEP is a formal, detailed document that follows the student throughout their schooling and is updated on a yearly basis. The son’s first IEP was completed during the course of the trial. [ 20 ] The son is described by various teachers and professionals as being a happy child with a sense of humour. The mother described him to Mr. Colby as being a “fun kid” who is happy, inquisitive, gentle and playful, and who likes nature, science and animals. The father described him to Mr. Colby as a sensitive, caring and introverted child who is also capable of being gregarious and who loves both his parents.

He enjoys playing with his friends. The son reported to his Grade 3 teacher that he is happiest when he plays with his friends, and that his greatest accomplishment for the Grade 3 school year was “making new friends.” He gets along well with his classmates and is well-liked. [ 21 ] The daughter is an exceptionally bright student. She is articulate, outgoing, and sociable. She is enthusiastic and inquisitive in her schooling.

A psychologist’s assessment prepared in December, 2012 described her as a “... delightful, confident and mature 6 year old who enjoyed the novelty and challenge of the tasks” and is “sociable, thoughtful and interactive.” [ 22 ] A mother of three children of similar ages to the son and the daughter, familiar with the parents and the children, described them as “fun, active, happy, good kids.” A former care-giver described them as “awesome kids” and “wonderful.” All of the evidence points to both children being very happy, well-adjusted and well-liked, and thriving despite the present dysfunctional home environment and the son’s extra challenges. [ 23 ] The children are very busy with extra-curricular activities.

The children have (or perhaps have had) piano lessons on Mondays. The son receives tutoring at the University of Victoria on Tuesdays and Thursdays after school. On Wednesdays, both children attend Chinese language lessons for one hour and 40 minutes at the Chinese school in Victoria. The mother enrolled the children in Chinese language lessons commencing in September, 2012, after separation, but the father is supportive of the lessons. The son plays hockey. Currently he is in his third year of hockey. The mother is an assistant coach for the team and the father is the team’s safety person.

The daughter takes figure skating lessons on Tuesdays and Saturdays. Both children have taken swimming lessons in the past. They regularly engage in play-dates with their friends. [ 24 ] The daughter is doing well in her Chinese lessons. The son is doing less well in them. He reports to Mr. Colby that the Chinese lessons are “tough” and “awful” for him. [ 25 ] Mr. Colby’s assessment is thorough and comprehensive.

His initial report did not expressly consider the four scenarios that pertain, which are: (1) the mother relocating to Toronto with the children, but without the father; (2) the mother and the father remaining in Victoria with the children; (3) both parents relocating to Toronto with the children; and (4) the mother relocating to Toronto without the children. The mother took issue with the assessment on that basis. In response Mr. Colby provided a supplemental report expressly dealing with the four scenarios.

With that possible exception, neither party took any significant issue with anything contained in the assessment. Neither party required Mr. Colby to attend the trial for purposes of cross-examination. Of course each party emphasized certain aspects of Mr. Colby’s report in their submissions. [ 26 ] During the course of the trial I heard much evidence concerning the relative degree to which each parent had participated in or been responsible for various aspects of their children’s care over the years, both prior to and post separation.

The mother portrayed herself as the children’s “primary caregiver”, and contended that the father’s involvement was much less than hers prior to their January, 2012 separation, but that it increased after the separation, implying that this was deliberate and strategic on his part. The father countered by giving detailed evidence concerning his involvement in the day to day activities and care of the children since birth, to the extent of his ability given his long hours at work and intensive studies for his MBA in 2010 and 2011.

In support of this aspect of the father’s evidence, several witnesses testified to various activities and duties the father had participated in or undertaken. I considered the father to be a credible and reliable witness. As I will explain, I have some concerns about the mother’s credibility and reliability. [ 27 ] It is unnecessary that I review the evidence of the parents’ involvement in detail. I accept that both parents have been fully engaged in their children’s care, activities and lives generally since birth, with some degree of normal and necessary division of responsibilities.

The mother was on maternity leave for a total of two years, and otherwise worked part-time, while the father worked full-time and studied, so it is natural that the mother has been more involved in aspects of their care, such as, for example, taking the son to various medical appointments and assessments. I note that several witnesses also attested to the mother’s exceptional planning and organizational skills. [ 28 ] On all of the evidence including that of the parties, the other witnesses, and Mr.

Colby, and on the basis of my own impressions, I concluded that the mother is a very dynamic, energetic, intelligent, goals-oriented and determined person, who is very focussed on her perception of her children’s welfare. Mr. Colby’s psychological assessment suggests that she is self-confident and directive in nature. She is similar in profile to people who are dominant, independent, decisive and controlling. The father’s descriptions of her also fit within these themes. It is therefore not at all surprising that she would tend to take the lead in organizing and facilitating the children’s care and activities.

Even if the mother spent a greater number of hours involved with the children over the years, which may well be the case, the father was always substantially and significantly involved. In short, this is not a case where one parent has been the “primary caregiver” such that this should be a factor weighed in determining the children’s best interests. [ 29 ] As Mr. Colby observes, it is not unusual for partners in a relationship to divide and allocate certain aspects of household responsibilities, household finances and parenting duties. It is also not unusual for these roles and responsibilities to change upon

breakdown of the relationship. At this point in time, the father is involved in the children’s activities, both in the school and the community, and has a positive relationship with both of them. [ 30 ] Mr. Colby states that the mother and the father “have been two highly involved parents”. I agree with that assessment. He states that “collaterals on behalf of both parents attested to the parents’ involvement [of] a continuous and positive nature with the children.” This too is consistent with the evidence at trial. [ 31 ] Mr. Colby states that the children have a “strong bond with both parents.” Mr.

Colby states that they “present” both parents positively (by which I take him to mean that they have positive views and feelings about both of them), and that they relate well with both of them. It is clear to me that both parents love their children very much and that both children also love both parents very much. The children would like to spend time with both parents. They would like to spend more time with their father than has been the case in the past.

The report makes it quite clear that the children do not favour either parent in this respect. [ 32 ] Unquestionably, both parents are competent and capable caregivers. Although each has some criticism of the other’s parenting styles and decision-making, their concerns are not fundamental. The mother indicated to Mr. Colby that the father is not as well informed as she is about medical research and information, especially in relation to ADHD. They disagree about whether the son should use prescribed medication for his condition.

The father contends that the mother involves the children in too many activities, that they are over-programmed, and that they would benefit from more rest and relaxation time. The mother considers this criticism unjustified and unfair. However, neither parent suggests that the other is not a fit parent. Both are willing to share parenting time equally and, in general, to have joint custody depending on the children’s place of residence.

This is the issue that truly divides them. [ 33 ] The mother adduced several expert reports dealing with the benefits to the children of being bilingual, exposure to their Chinese heritage and language, and development of their dual cultural identity. These experts did not see the children or the parents. Mr. Colby reviewed these reports in developing his assessment. He concludes that the children’s needs are sufficiently addressed in their current community. [ 34 ] In Mr.

Colby’s primary report, he recommends that both children remain in proximity to both parents, and that both parents have an active and on-going relationship with them on a scheduled basis. He recommends against prolonged separation of the children from either parent. He recommends equal sharing of parenting time. He recommends that the parents share decision-making responsibilities, but he suggests that the mother have the final say in relation to some decisions, such as cultural and linguistic activities.

He reports that the children do not favour moving to Toronto, but notes that “this would be expected in terms of their current activities, friendships and security in their current home.” He states that having both parents available to them in a proximate residential community is of greater benefit to them than the proposed relocation to Toronto. He recommends that if the children remain in B.C., they travel twice annually to Toronto with the mother, for Chinese New Year and an extended summer vacation. [ 35 ] However Mr.

Colby’s primary report seems to assume that the father would not relocate to Toronto even if the mother moved there with the children. It appears to me that the children’s comments are at least partly predicated upon the same assumption. [ 36 ] In his supplemental report, Mr. Colby recommends against the children residing in either Ontario or B.C. without both parents also residing in the same community.

While noting Toronto’s advantages in terms of greater involvement with the mother’s extended family and Chinese cultural heritage, he states that the children’s cultural, educational and medical needs are adequately served in Victoria. Any losses to the children remaining in B.C. are “secondary to the vast benefits they get from being raised by both of these competent and caring parents.” He states that if the children remain in B.C., being raised by both parents, they will have sufficient exposure to and knowledge of their multicultural heritage.

He states that “should both parents decide to move and relocate to Ontario with the children that, again, would provide an optimal arrangement in relationship to maximizing both parents’ involvement with the children...”. It would also have the advantages of greater exposure to their extended families on both sides and involvement with the larger and more extensive Chinese cultural community there. [ 37 ] In short, it is clear that in Mr.

Colby’s opinion the mother’s contentions about the advantages of moving Toronto, as described in detail in his report, are not overwhelming or decisive, and he is not persuaded that a move to Toronto is preferred in the best interests of the children. III. Legal Principles [ 38 ] The preferable basis for consideration of a child mobility issue is s. 16 of the Divorce Act where available, as the federal legislation is paramount: Hejzlar v. Mitchell-Hejzlar , 2011 BCCA 230 at para. 20 ; Hansen v. Mantei-Hansen , 2013 BCSC 876 at para. 96 .

The parties agree that the Divorce Act applies to the custody and relocation decisions in this case. [ 39 ] In my view the relocation provisions of the FLA are inconsistent with the Divorce Act , and it is therefore appropriate to analyze the issue of relocation (mobility) under the Divorce Act and not the FLA .

Section 46(2) of the FLA expressly mandates that the court must consider the reasons for the proposed change in the location of the child’s residence, but must not consider whether the parent who is planning to move would do so without the child. (The FLA is strangely silent on the converse question of whether evidence of the other parent may be considered.) Similar provisions are not found in the Divorce Act .

The FLA also provides a list of factors in s. 37(2) that the court “must” consider, and further stipulates in s. 37(3) that the order is not in the best interests of the child “unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety and well-being.” In my view the FLA may well require the court to weigh relevant factors in a different manner than it would under the Divorce Act . This appears to be the intention of the legislature. [ 40 ] Section 16(8) - (10) of the Divorce Act provides as follows: Factors

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage asdetermined by reference to the condition, means, needs and other circumstances of the child. Past conduct

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct isrelevant to the ability of that person to act as a parent of a child. Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as muchcontact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration thewillingness of the person for whom custody is sought to facilitate such contact. [41] The leading authority on the question of whether a court should allow a relocation of the child’s residence is the Supreme Courtof Canada’s decision in Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27. [42] Although Gordon involved an application to change the terms of an existing custody order, the principles set out in Gordon arealso applicable to an initial custody determination, with such modifications as may be necessary: Hejzlar at para. 22. [43] In Gordon, the principles, insofar as they are relevant here, were summarized by McLachlin J. at paras. 49-50 as follows: 2. ...the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to allthe relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. … 4.

The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views areentitled to great respect. 5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances ofthe case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia: (

a) the existing custody arrangement and relationship between the child and the custodial parent; (

b) the existing access arrangement and the relationship between the child and the access parent; (

c) the desirability of maximizing contact between the child and both parents; (

d) the views of the child; (

e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs ofthe child; (

f) disruption to the child of a change in custody; (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location mustbe weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimatequestion in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? [44] These factors are not exhaustive: Stav v. Stav, 2012 BCCA 154 at para. 127.

A more comprehensive list of potential factorsand relevant considerations is set out in S.B.C. v. F.A.C., 2013 BCSC 211 at paras. 357-362. [45] In Hejzlar, the court stated the following additional principles: 23 The issue of a proposed relocation of a child against the wishes of the non-moving parent, is difficult. In the tangle of competingbenefits and detriments to the child it is not easy to determine best interests. This is particularly so where family members beyond theparents are an important part of the child's home life. 24 From the cases, however, certain principles arise.

The cases confirm the principle expressed in s. 16(10) of the Divorce Act that thecourt must consider maximizing contact between the child and parent. Yet, that same

section makes it clear that maximizing contact isnot an absolute principle, and is only to be pursued within the limits of that which is "consistent with the best interests of the child." 25 Second, Gordon v. Goertz tells us that, barring an improper motive for the proposed move, there must be an attitude of respect for acustodial parent.

This means, in part, that the party seeking to move need not prove the move is necessary, although any degree ofnecessity, such as for income-earning reasons, may bear upon the best interests of the child. 26 Third, the authorities generally do not favour the status quo as a 'default position'. In Nunweiler [v. Nunweiler, 2000 BCCA 300,] thiscourt observed that such an approach "reinserts into custody discussions a presumption which is contrary to the instructions in Gordon v.

Goertz to assess each case individually" and is "contrary to the observations of this court in Robinson v. Filyk (1996),(BC CA), 84 B.C.A.C. 290 that presumptions are inappropriate in custody cases and detract from the individual justice to which everychild is entitled ...". 27 Last, this court, and other courts in Canada, have discouraged reliance by a judge on any expression by the parent who is seeking tomove, that he or she will not move if the child cannot accompany him or her. S.S.L. was a case in which weight was given by the trialcourt to the mother's evidence she would not move without the child.

On appeal, this court referred with favour to Spencer v. Spencer,2005 ABCA 262, and Bourgeois v. Plante, 2009 PECA 12, leave ref'd [2009] S.C.C.A. No. 357. In Spencer v. Spencer the Court said, atpara. 18: [18] In conducting this inquiry, it is problematic to rely on representations by the custodial parent that he or she will not move withoutthe children should the application to relocate be denied. The effect of such an inquiry places the parent seeking to relocate in a classicdouble bind.

If the answer is that the parent is not willing to remain behind with the children, he or she raises the prospect of beingregarded as self interested and discounting the children's best interests in favour of his or her own. On the other hand, advising the courtthat the parent is prepared to forgo the requested move if unsuccessful, undermines the submissions in favour of relocation by suggestingthat such a move is not critical to the parent's well-being or to that of the children.

If a judge mistakenly relies on a parent's willingness tostay behind "for the sake of the children," the status quo becomes an attractive option for a judge to favour because it avoids the difficultdecision the application presents. Bourgeois v. Plante is to the same effect. [46] In S.S.L. v.

J.W.W., 2010 BCCA 55, the court held that in joint parenting situations where one or both parents’ needs (economic,educational or personal) are seen as requiring a change, the court’s task is to analyze the evidence in four possible scenarios, which areprimary residence with a parent in the new or present location, or joint physical custody in the new or present location, withoutpresuming that the current care-giving and residential arrangement is the preferred one. The status quo is not to be the default result. Itmust not be assumed that one parent cannot move.

Similarly it is not appropriate to rely on any assumptions as to what the parents willactually do depending on the decision of the court: Stav at para. 130. [47] Inevitably, the court must assess the resources available to each parent and the potential effect of those resources on eachscenario, which may require an assessment of a parent’s emotional and economic prospects, because the children’s interests arenecessarily intertwined with those of their parents: S.S.L. at para. 33; Stav at para. 88. [48] In R.E.Q. v.

G.J.K., 2012 BCCA 146, at para. 58, the court states that it is not clear how the principle of “great respect” for theviews of the “custodial parent” should apply where both parents are custodial parents and are co-parenting.

Subsequently in Stav atpara. 143, the Court of Appeal stated that where there are two “custodial” parents, who have diametrically opposed perceptions as to thebest interests of their own children, it is difficult to treat their views as other than neutral in the analysis. [49] The stricture set out in Gordon against considering the custodial parent's reason for moving other than in “the exceptional casewhere it is relevant to that parent's ability to meet the needs of the child”, has proven unworkable in practice: R.E.Q. at para. 58.

Areview of the authorities makes it plain that a parent’s reasons for seeking to move are almost invariably considered by trial judges,perhaps because these reasons are generally linked to the best interests of children, either by the parent seeking to move, or the parentopposing the move: Stav at para. 86. That is clearly so in this case, where the mother’s contends that her reasons for seeking to movecoincide with her views as to the best interests of the children.

The father mainly challenges the weight that should be given to thefactors the mother asserts, and urges that the court give greater weight to other factors. It would be pointless and artificial in this case toattempt to compartmentalize the mother’s views.

If the mother’s views as to her reason for wishing to move is to be considered then ofcourse so should the father’s reasons for not wishing to move. [50] There is a question as to whether in a case such as this the trial judge should consider what the parents say about what theywould do depending upon the custody and residency decision the court makes: Stav, para. 64. It is accepted that it is unfair to eitherparent to place them in a double bind by forcing them to state whether they would stay or go, without the children, and reliance on suchstatements by the court is “discouraged”: Hejzlar, para. 27.

Yet, according to Stav at para. 64, in obiter, arguably, the evidence of theparents in relation to this question could be relevant to the issue of the children’s best interests. I observe that the quote from thejudgment of Hayne J. of the High Court of Australia in U. v.

U., [2002] H.C.A. 36 set out in para. 26 of S.S.L. suggests that the evidenceof the parents as to their reasons for what they would do can be explored in evidence, but their answers to such questions are no morethan a prelude to a deeper inquiry about the child’s best interests and what arrangements best serve those interests. [51] It is awkward and unsatisfactory to be required to avoid hearing evidence concerning these central questions at trial. [52] Both parties, no doubt being mindful of the case law and uncertain about the potential application of s. 46(2)(

b) of the FLA,treated the question of what either parent would do as being either improper or irrelevant. As a result the father gave no direct evidenceof what he would do if the children were permitted to move to Toronto. On the other hand the mother volunteered on cross-examinationthat, at this point, she would be unlikely to move to Toronto without the children. In her closing submissions, counsel for the mothersuggested I disregard this evidence, and in the circumstances of this case, I agree. As I have said, neither party sought to raise thisquestion at the trial.

It would be unfair to rely on the mother’s evidence, if it is taken as evidence of the strength of her commitment tothe children, without hearing from the father on the converse question. The mother volunteered that evidence and, again in deference tothe authorities and the legislation, there was no further cross-examination on the evidence. In any case I accept that such evidence mustbe treated with a great deal of caution. The testimony may be strategic. Reliance on it may risk improperly favouring the status quo.

Inmany cases I doubt that either parent could be very sure as to what they would actually do, so the evidence may be unreliable. [53] Therefore the decision I make is based upon the circumstances as they exist today, not upon what the parties say they would do.

If, in future, a court is persuaded that the preconditions for variation of the order are met, as set out in Gordon, then of course the courtwould be required to consider the matter afresh, again in accordance with the factors in Gordon. [54] In custody decisions involving bi-racial and bi-cultural children, matters of racial identity, heritage and culture can be relevant

factors which may be considered in the context of the over-arching question of the children’s best interests. However such factors are not determinative. Their significance is highly variable and must be weighed by the court with the evidence and in the context of all relevant factors, on a case by case basis: Van de Perre v. Edwards , 2001 SCC 60 at paras. 36-43 . For example, in A.R.D. v. G.B.G.D ., 2004 BCSC 1080 , the child was bi-racial and bi-cultural, in that his mother was Chinese-Malaysian, and her first language was Cantonese, while his father was Caucasian.

The mother was culturally isolated in Comox, B.C., where there was only a very small Chinese community. She moved to Victoria, whose Chinese community Mr. Justice Shabbits described as “vibrant”. The court was satisfied that it would be easier for the child to appreciate both of his cultures if he was living in Victoria with his mother. However, this was only one factor, and the court ultimately concluded that it was in the child’s best interests to remain primarily resident with his father in Comox: A.R.D. at paras. 44-45, 54 . IV. Analysis and Conclusions A.

Relocation [ 55 ] In this case, the relevant considerations can conveniently be grouped into the following categories: 1. existing arrangements and the relationship of the children to the parents; 2. desirability of maximizing contact between the children and both parents; 3. views of the children; 4. disruption to the children of a change in custody; 5. disruption to the children on removal from family, schools, and the community he or she has come to know; 6. Chinese culture and language; 7. proximity to extended families; 8. careers and financial concerns; and 9. other factors. 1.

Existing Arrangements and Child/Parent Relationships [ 56 ] I have previously discussed the relationships between the children and their parents. Both parents have been very involved with both children throughout their lives. The bond and love between both parents and both children is obvious and strong. The children do not favour either parent. Both parents are competent, capable care-givers. The existing arrangements are in the nature of de facto joint custody. The children are healthy and happy, although they would of course benefit from more stable and sustainable arrangements.

The son is coping quite well with his challenges. [ 57 ] As noted, the parents have continued to live in the same household, although legally separate and apart, for approximately 22 months since separation. They have recently agreed to terminate that arrangement. The father agreed to purchase the mother’s interest in the former matrimonial home, where he plans to continue to reside. The mother will make other accommodation arrangements. The parents have, by informal consent, allocated parenting time equally. In this respect the parents have acted sensibly and reasonably.

Both parties struck me as generally reasonable, mature, and skilled care-givers to their children. Although there have been notable disagreements, they have largely been able to jointly make decisions in the best interests of their children, even in the strained and difficult circumstances they have endured since separation. [ 58 ] In these circumstances joint custody and shared parenting should continue. As there have been some disagreements, and both parties recognize the importance of avoiding future conflict and litigation, they agree that a parenting coordinator should be appointed. 2.

Maximum Contact with Both Parents [ 59 ] Maximum contact with both parents is a mandatory consideration under s. 16(10) of the Divorce Act . The

section states that the child should have as much contact with each parent as is consistent with the best interests of the child. The principle of maximum contact is not absolute and cannot always be achieved: Stav at para. 129 . [ 60 ] The

section also requires the court to consider the willingness of the person for whom custody is sought to facilitate such contact. Here, both parents are prepared to share parenting on an equal basis if the parents and children reside in the same locale. Both are prepared to offer generous access to the other if they reside in different cities. However, it is quite obvious that the principle of maximum contact will be sacrificed to a very significant degree if the children move to Toronto without the father or if the mother moves to Toronto without the children.

Either of these scenarios would be detrimental to the children. 3. Views of the Children [ 61 ] As noted, Mr. Colby’s report makes it quite clear that the children do not favour spending more time with either parent over the other. The daughter was six years of age when interviewed by Mr. Colby. She expressed reservations about moving to Toronto, while acknowledging that she has more family there. She would like her parents to get along. She likes her present bedroom, house, neighbourhood, school, and friends. She said that if she went with one parent, she would miss the other one. She seems to assume that if

she moves to Toronto, she will be separated from her father. [ 62 ] The son was eight years of age when interviewed. When questioned about a move to Toronto, he noted the conflicting wishes of his parents and said that maybe he should spend a year there and a year here, meaning a year in Toronto and a year in Victoria. I interpret this as reflective of a search or a wish on his part for a compromise that might satisfy his parents. On another occasion he said that he does not want to move anywhere.

As reasons for not wanting to move, he mentioned his friends, his belongings, and his dislike of studying Chinese. [ 63 ] Mr. Colby reports that in general the children do not favour moving to Toronto, but he notes that “this would be expected in terms of their current activities, friendships and security in their current home.” [ 64 ] I conclude that the children do not wish to be separated from either parent, and are content where they are. Neither expressed a desire to move to Toronto. 4.

Disruption to the Children of a Change in Custody [ 65 ] Joint custody in either Victoria or Toronto would not involve a significant change in custody as such. Clearly, a change to sole custody and primary residency for either parent would be a substantial change. It would be detrimental to the children. 5. Disruption to the Children of a Change in Place of Residence [ 66 ] A move to Toronto, even with both parents, would cause significant disruption to the children. [ 67 ] The evidence at trial indicates that both children enjoy several healthy and strong friendships.

They would lose these friendships and have to make new ones. This might not be difficult for the daughter, who is described as outgoing, talkative, and confident. However it might be much more difficult for the son. His mother said to Mr. Colby that he is a quiet individual who has “issues socializing with others”. His father said he is introverted, although he can be gregarious. He is sensitive and caring. He has ADHD and a communication disorder. I surmise that his motor skills issues might affect the manner in which he relates to others through sports.

I am concerned that the loss of the son’s current friendships will detrimentally affect him to a larger degree than most children his age. [ 68 ] The mother contends that educational support services are stronger in Toronto than in Victoria. I was impressed by the evidence of the vice-principal of the children’s current elementary school concerning the special educational services available in this region to support the son. Mr.

Colby’s opinion, which I accept, is that the Victoria educational system will sufficiently meet the children’s needs. [ 69 ] It is reasonable to expect that their lifestyle would be very different in Canada’s largest city and metropolitan region than it is in a small city like Victoria and the surrounding area. There are real, tangible reasons why the father chose as a young adult to settle in Victoria over Toronto, and why at least initially the mother also agreed to reside in Victoria.

I heard ample evidence about the children’s participation in activities such as walks, hikes and visits to Victoria region parks, trails, lakes and beaches, and about their recreational activities. Travel and commuting times in Victoria are modest as compared with Toronto. Mr. Joseph Leung, a long-serving former president of the Chinese Canadian Benevolent Association, made a point of saying that the travel time to attend the downtown Victoria Chinese Language School is short, in comparison with travel times in the Toronto area. The children reside close to their school.

Their father has flexible work hours and arrangements. His commuting time to work is typically 17 to 18 minutes. While life in a very large city such as Toronto has advantages, there are also disadvantages. 6. Chinese Culture and Language [ 70 ] The mother’s principal arguments in favour of the move to Toronto centre on the advantages to the children of participation in and engagement with the large Chinese population and rich Chinese culture and language opportunities there.

This is intertwined with her contention that the children will be able to interact in Cantonese with her extended family in Toronto, thus reinforcing their exposure to their Chinese culture and enhancing their language skills. [ 71 ] The mother adduced three expert reports which describe the benefits to children of learning a second language and being exposed to one’s cultural heritage. The father takes no issue with these general propositions. [ 72 ] Dr. Gary Tonks, a psychologist, reports that the Victoria Chinese community is very small in comparison with Toronto.

He provides 2006 census data indicating that out of a Victoria total population of 325,065, only 1.37%, report Mandarin or Cantonese as their mother tongue. In Toronto the percentage is 4.5%, out of a total population of 5,072,075. He states that while there are opportunities in Victoria for people of Chinese heritage to participate in Chinese language and traditions, those opportunities “pale in comparison” with such opportunities in “other geographic centres in Canada” such as Toronto. [ 73 ] On the other hand, Dr.

Tonks also observes that, “[i]n multicultural societies such as Canada, it has been shown that integrated identities (formed out of the foundations of heritage and host cultures) are optimal for immigrants and their descendants, as well as for society in general.” [ 74 ] Professor James Cummins, an educational psychologist with the University of Toronto, opines that “Toronto is the largest Cantonese-speaking community in Canada and accordingly, opportunities for using and interacting in that language are likely to be greater than in other Canadian urban centres.” Standing alone this comment is very generic and unpersuasive.

Dr. Cummins also provides census figures showing that the percentage of the population whose mother tongue is Cantonese is nearly twice as high in Vancouver as it is in Toronto. However I accept the general propositions in his report relating to the benefits of bilingualism, heritage language knowledge, positive self-identity, and exposure to and knowledge of one’s heritage culture for minority group or mixed-race persons.

[ 75 ] The report of Dr. Enrica Piccardo makes similar points to Professor Cummins, and adds that the son’s ADHD language difficulties “do not seem to constitute per se an obstacle to [s]econd language acquisition.” She states that language and culture are inextricably linked, and that the presence of family relationships and a strong Chinese community would multiply contacts with the Chinese language and culture. [ 76 ] None of these experts met the children, the parents or any family members. Their opinions are general in nature. [ 77 ] Mr.

Joseph Leung testified to the many Chinese cultural activities and resources available in Victoria. He immigrated to Canada in 1978 and raised his own family in Victoria. The Chinese community in Victoria has very deep roots. Its Chinatown is the second oldest in North America, after San Francisco. A small but well preserved Chinatown remains in downtown Victoria, where the Chinese School the children attend is located. The school has about 130 students, from Grade 1 to Grade 7. Classes are available daily, including Saturdays. The children attend only once per week. They could attend daily.

He stoutly denied that Chinese language training is better in Toronto than in Victoria. He testified that the Victoria Chinese population is growing, although not as fast as the Chinese populations in Vancouver or Toronto. [ 78 ] I accept the undoubted benefits that accrue to the children of exposure to their Chinese heritage, the benefits of bilingualism, and the related advantages that they could gain through more interaction with their Chinese relatives in Toronto.

I accept as well that Toronto has a larger Chinese population in both percentage and numerical terms, and that this could possibly but not necessarily lead to greater opportunities for involvement with Chinese language and culture in Toronto. [ 79 ] I also accept that the children are not completely culturally isolated in Victoria. Victoria has a small but vibrant Chinese community in which the children already participate by attending Chinese school.

In addition, the children have customarily visited Toronto twice yearly, once in January or February to participate with their mother and her family in Chinese New Year festivities, and once in the summer. Mr. Colby suggests that such visits continue. The father is supportive and the parents have the means to accommodate this. [ 80 ] The question is how much weight to give to this factor in the circumstances of this case. [ 81 ] Mr. Colby reviewed and summarized the reports presented at trial for purposes of his assessment.

He notes that although multilingualism is a benefit, the Chinese language studies are a source of stress to the son. He is also of the view that greater immersion in language training is not in their best interests at this time. In his supplemental report he states that if the children remain in B.C. being raised by both parents, they will have sufficient exposure to and knowledge of their multicultural heritage.

He also acknowledges that a move to Toronto would provide advantages in these areas. [ 82 ] It is clear that in the opinion of the professional psychologist charged with providing an independent and neutral assessment to the Court, the culture and language factor is not decisive. [ 83 ] In a case such as this, in deciding how much weight I should give to this factor, I also take into account the importance the parents placed on it prior to their separation.

In my view, it was only a modest consideration for them. [ 84 ] I accept the father’s contention that the mother’s emphasis on the benefit of exposing the children to Chinese language and culture is largely a recent phenomenon. [ 85 ] The mother contends that the father “always knew” that she would want to return to Toronto after her children were born. This proposition was not put to the father in cross-examination. In any event, the father says there were no discussions about this until January, 2008, and no significant discussions until January, 2009.

The father testified that in January, 2009, as they were in the process of departing for their annual Chinese New Year trip to Toronto, the mother suddenly informed him that she had told her mother they would be moving to Toronto, and he should inform his family as well. He refused. She had investigated schools in Toronto while there, and enrolled the son in a Toronto school for the 2009-2010 school year. The father only learned of the enrollment in September, 2009, when the school contacted him wondering why his son was not present.

I accept the father’s evidence that there was no serious discussion, much less any kind of plan or commitment on his part, to move to Toronto at some point. [ 86 ] Clearly, the mother was content to marry a man who was firmly entrenched in Victoria, and start to build a life together here, in 2002. One of the things they had in common was enjoyment of outdoor recreational activities which are easily accessed in this region. The parties purchased a suburban home together, after investigating local elementary schools.

The home they purchased is just a few minutes’ walk to the elementary school the children now attend. I do not accept that at the time these decisions were made the mother had major concerns about depriving her children of access to Chinese language and culture by settling in Victoria. I do not accept that the father would have entered into a marriage and started a family knowing that the mother would insist on a family move to Toronto. In

summary the evidence suggests that the mother was not overly concerned about cultural isolation or proximity to her family until relatively recently. [ 87 ] The mother converses with the children in English. She explains that the son’s speech and language hurdles forced her to prefer conversing with him in English as a young child. In any event the language of both children at home is English. Other than what they may have learned in Chinese school recently, they know only a few words and phrases in Cantonese.

In general the evidence is that Chinese language and culture has not been a major part of their lives, except to some extent on their twice yearly trips to Toronto, and very recently with their enrollment in the Chinese school in Victoria. [ 88 ] There are objective benefits to children of bilingualism and cultural identity as referred to in the expert reports, but the relative importance of such matters to parents is subjective and variable.

This is obviously true in a multicultural and geographically diverse nation such as Canada, where many people choose to intermarry, and choose to live apart from the largest concentrations of their ethnic or language groups. [ 89 ] In my view the mother’s recent emphasis on the importance of culture and language has a substantially strategic component, in that it provides a credible rationale for the move to Toronto, especially when buttressed by the arguments founded on exposure to the

children’s Chinese family members. [ 90 ] The sincerity of the mother’s contentions is suspect. On the evidence I must treat her assertions with a great deal of caution. The mother admits to fabricating a document for use in these proceedings, and giving false testimony on her examination for discovery about the document. The document purports to be a loan agreement dated September 1, 2002, evidencing a loan from her mother in the amount of $120,000, used to assist with the purchase of the matrimonial home in Saanich. The fact that the money was advanced was never disputed.

But, as is common in this kind of case, there were issues as to whether the money was a gift or a loan, and if a loan, whether it remained enforceable as such 10 years later, in view of the passage of time and potential limitations. The advancement of money and the document were relevant to the parties’ financial issues, which are now settled. However the mother’s conduct remains highly relevant to her credibility. [ 91 ] The mother lied about the document on her examination for discovery in December, 2012.

However in a Response to a Notice to Admit in late January, 2013 she admitted that the document is a fabrication. The Response states that the document was created in January, 2012, in Toronto, prior to the separation of the parties. This makes sense, as the document is signed by the mother’s mother and witnessed by her aunt, and the mother was in Toronto where they reside in January, 2012, before returning to Victoria when the separation occurred.

Attempting to explain her shocking behaviour, at trial she testified that she created the document in a state of distress after receiving the father’s pleadings in this action in July, 2012, in which he denied any such loan obligation. She testified that when she saw this she felt that in some way the father was “stealing” her parents’ hard-earned money. This led her to create the false document. However this evidence is inconsistent with her formal admission and so must also be false.

Moreover, her conduct in fabricating the document for use in court proceedings is even more disturbing if as she says at trial the document was created after the action was underway. [ 92 ] The father asserts that the mother only admitted to fabricating the document when faced with an application for its forensic examination. However, the evidence at trial on this is lacking. [ 93 ] This matter serves to rather vividly underscore Dr. Colby’s description of the mother as “goal-oriented”.

It forces me to doubt the sincerity and depth of her concerns about the importance of Chinese language, culture and identity for the children’s best interests, as compared with her own personal wishes. [ 94 ] I did not find her to be a credible witness generally. She tended to be argumentative in cross-examination. I do not accept her evidence that the parties had any kind of prior plan or understanding that they would move to Toronto. I also do not accept her assertion that when she brought four kittens into the home in May, 2013, well after separation, the father had been consulted ahead of time.

The episode caused a great deal of distress for the children, as the father was forced to demand that the kittens be removed immediately due to valid concerns about allergies for the son and himself. At trial the mother stated that the son’s allergies were only mild but that is not consistent with what she said to Mr. Colby, in criticizing the father for allowing his sister to visit with her dog. The father asserts that this conduct was for the purpose of turning the children against him during a critical period of time, when Mr. Colby was about to embark on his assessment. I am not prepared to make that finding.

Happily the episode did not affect his report in any way. [ 95 ] Mr. Colby notes the very large Chinese and Cantonese speaking communities in the Lower Mainland of B.C., relatively proximate to Victoria. However neither the mother nor the father suggested a move to the Lower Mainland as a compromise solution. The mother notes that a move to the Lower Mainland would not bring the children into better contact with their Ontario relatives. Clearly this is true; however it would have the very large advantage of relative proximity to both parents even if the father were to choose to remain in Victoria.

The position of the mother in this respect demonstrates that in her estimation greater exposure to Chinese cultural influences, standing alone, is not a sufficient reason to move the children, even just to the Lower Mainland. [ 96 ] Another consideration is that the cultural and language advantages of Toronto over Victoria are speculative. It is hard to assess whether they will actually provide real and substantial advantages to these particular children in their particular circumstances. The children are now seven and nine. They do not speak Cantonese.

I am not persuaded that if they move to Toronto they will actually become bilingual. [ 97 ] On the evidence I am not persuaded that the enhanced exposure to Chinese culture in Toronto as compared with Victoria will significantly, materially benefit the children. 7. Proximity to Extended Families [ 98 ] As noted, the mother has many relatives in Toronto. Her initial plan is to reside with her brother in Markham. He is married and has three children, two boys and a girl, whose ages are respectively five years, two years and one month.

He testified at trial concerning the close relationship he enjoys with his numerous cousins in Toronto, and that he would like his children to have the same kind of close and warm relationship with his sister’s children. He testified that the relationship between his children and the son and the daughter will not be the same as that among himself and his cousins unless they grow up together in the same city. His generation of cousins speaks Cantonese to their older relations. The younger generation is bilingual.

The mother testified that the children enjoy the company of their cousins and other relatives when they visit Toronto. Her brother is generous to the children on their visits, to the point that the children refer to him as their “Toronto Santa”. [ 99 ] A female cousin and close friend of the mother also testified at the trial. Like the mother’s brother, she testified to the strong and warm family relationships in Toronto. She has a son, aged 11. Her son, like the son and the daughter here, is bi-racial.

She testified that the family not only celebrates Chinese New Year together, but also other events such as Christmas, Mother’s Day, and Father’s Day. Naturally the family has adopted aspects of Canadian culture and traditions. [ 100 ] While the children visit Toronto twice yearly, it appears that their Toronto relatives do not visit Victoria on any regular basis. The mother’s parents came to Victoria on the birth of each child. Her mother is now very infirm. The mother’s brother and best friend had never visited the family in Victoria prior to attending for the trial.

[ 101 ] The father also has a large family in Toronto. His mother testified at trial. She has visited Victoria five or six times. She might visit with her husband in future. She enjoys a good relationship with the mother, who always makes a point of arranging visits with the father’s family when she visits Toronto with the children. [ 102 ] The father and the mother have no relatives residing in the Victoria region. The father’s best friend, a friend from childhood, resides in Victoria, as do his parents. The father’s friend testified that he and the father are very close. He said that they are like brothers.

The friend and his parents have a good relationship with the father and the children. The children refer to the father’s friend as “Uncle”. The father’s friend’s parents are also long-time friends of his own parents. Since separation his mother has stayed with them on her visits to Victoria. I accept that this family has a warm relationship with the children. [ 103 ] I accept that the proximity of both sets of relatives in Toronto would be of benefit to the children.

This is especially so with respect to the mother’s family, in the context of the benefits to the children of enhanced exposure to Chinese language and culture. I accept that, as the mother’s brother states, the relationship between these children and their Toronto cousins and relatives is not likely to be as deep and strong as it would be if they resided in Toronto. [ 104 ] However the children are not completely isolated from family while residing in Victoria. Their grandmother visits regularly. The mother and father have the means to visit Toronto regularly and for extended periods of time.

The children have a few surrogate relations in Victoria. 8. Careers and Financial Considerations [ 105 ] The mother and the father each advance competing considerations relating to their careers and finances. Clearly these matters can be expected to affect the welfare of the children. [ 106 ] The father is now in a mid to senior level executive position at the plastics manufacturing company that has employed him for more than two decades. He has worked full-time with that employer since 1999. It is a medium-sized, family-owned company with about 90 employees.

He is one of four senior managers among a middle management group consisting of about 12 employees. He expects that his 2014 earnings will be $90,381. He is 45 years of age. He has a Bachelor of Science degree in chemistry and has recently completed an Executive MBA. As noted, his title with the company is Financial Controller and Systems Manager, although he is not an accountant and has no formal IT qualifications. [ 107 ] His work hours are generally 9 a.m. to 5 p.m. but can be adjusted if family commitments require it. He can do some work remotely on his computer using VPN (Virtual Private Networking).

Proximity to his work (as noted the commute is about 17 or 18 minutes by car) and the flexibility of his work permit him to be involved with his children’s needs to a greater extent than usual for full- time executives. [ 108 ] His employment is relatively secure. He reports to the Vice President of Operations, who is the only non-owner member of the Company’s Senior Management Team. The Vice President testified that the company is performing well financially. The father is a highly valued employee whose prospects are bright. At approximately $90,000 per annum, his salary is above the norm for similar employees.

There is very tangible evidence of the father’s value to the company, in that the father’s litigation costs have been supported by a line of credit loan of $150,000 to him from his employer. As far as I could tell the mother’s litigation costs, also very substantial no doubt, have been supported by loans from her family. Her financial statement shows a loan of $200,000 from her mother in July 2013, in addition to the other loan. [ 109 ] The father says he is happy in his work and has no interest in looking for working in Toronto.

He testified that if he were to reside in Toronto he would have to spend many hours commuting each week, as his friends living there do. He says that buying a home similar to the home in Victoria would be financially difficult. [ 110 ] I infer that the father’s chances of replicating in Toronto the very favourable employment and career prospects and circumstances he enjoys in Victoria are questionable. His career has been tied to one employer.

Although he has done some independent IT consulting in the past he has not continued with that business, leading me to infer that in his view it was not his best career option. He is not an independent professional. In a worst case scenario a move to Toronto could be a career disaster for him. Of course there is also a chance that his career would flourish in Ontario. But in

summary, a move to Toronto would result in a significant threat to his career prospects. [ 111 ] The mother contends that her career prospects as a veterinarian are much brighter in Toronto than they are in Victoria. She says she would like to continue working part-time, that is, three days per week. She has been offered work at clinic in Toronto. She says that since her part-time employment at a Victoria clinic was terminated in November, 2011, she has been unable to find other similar work here. She has been forced to rely on locum work.

The mother testified that she sent out resumes looking for work in October, 2011 and again in June, 2013, without success. [ 112 ] However she acknowledges receiving three offers of employment which she refused. One offer was refused due to a one year non-competition clause in the contract of employment she had with the clinic that terminated her employment in November, 2011. Another clinic offered full-time work which she did not want to take. On the other hand a third clinic offered too few hours. [ 113 ] Her earnings have declined since her work as an employee ended.

While working part-time, in 2010 she earned $138,779 and in 2011 she earned $124,802. In 2012 she earned $62,334. She expects to earn about $60,000 to $65,000 this year. [ 114 ] She says that she would like to acquire ownership of a veterinarian clinic but continue to work part-time. She says that she has been unable to find a clinic to purchase in Victoria but she contends that in Toronto the opportunities are plentiful. She adduced a report from Dr. John Tait concerning her favourable employment prospects in Toronto. Dr.

Tait also opines that almost one-half of the owners of veterinary clinics in Canada are over 55 years of age, are in the pre-retirement age of life, and are exiting the profession, meaning that many practices are for sale. This evidence applies Canada-wide. I heard no evidence of the cost of practice, how the mother would

finance a purchase, or whether it would be realistic to own and operate a practice part-time. There was no financial evidence concerning clinic ownership. [ 115 ] No similar expert evidence was adduced concerning the market for veterinarian services in Victoria. Thus I have only the mother’s evidence concerning her career difficulties in Victoria. Given the circumstances her evidence is self-serving. I doubt its reliability, as it depends completely on the mother’s unsupported testimony. Her recent relative lack of career success is at odds with her pre-separation history of success.

A friend and veterinarian colleague testified that she is an extremely competent and respected veterinarian. She is a highly intelligent and resourceful person. [ 116 ] I conclude that the mother’s career prospects in either Victoria or Toronto are good. She can earn a very good living in either locale. I am not persuaded that her chances of owning her own clinic are seriously diminished in Victoria as compared to Toronto.

In any event there was no evidence beyond the mother’s speculative assertion that ownership of a clinic would bring financial advantages. [ 117 ] She does not go so far as to suggest that at move to Toronto is a career imperative. [ 118 ] In

summary, if the father were to move to Toronto he would give up a very good career and face a risk of permanent damage to his prospects. The mother has the ability to thrive in either location. 9. Other Factors [ 119 ] The father states that if the children move to Ontario without him, his relationship with them would be detrimentally altered. This is true, and would be equally true for the mother, in the reverse circumstances. Mr. Colby’s report supports that either of these scenarios should be avoided.

The father also points to the cost of travel as a factor to be considered, which it is. [ 120 ] Parental happiness is also a factor. In my view the simple fact is that the mother has a powerful personal desire to return to Toronto, where her family is. The depth of her feelings is demonstrated by fact that she ended the marriage over this question. A remarkable feature of the case is that the relationship ended after several years of apparent success over this single issue. Now that the relationship has ended she has even less reason to remain in Victoria.

Therefore if the children are not permitted to relocate to Toronto, she will be unhappy. This could be detrimental to the children, although in my view the mother has the skills to cope and is unlikely to allow it to do so. Of course, on the other side, the father has no desire to move to Toronto. As a young adult he made a very deliberate decision to move to Victoria. He loves this region and the lifestyle it offers him and his family. He sees his career as being tied to this region and he may well be correct about that.

These considerations balance out. [ 121 ] Neither party has re-partnered as yet, nor in fact is there is any evidence of any new relationships for either of them. New domestic relationships are not a factor in this case. 10.

Summary and Conclusion Regarding Relocation [ 122 ] In the circumstances of this case, on all of the evidence, and having particular regard for the views of Mr. Colby, in my view the benefits to the children of continuing to have maximum contact with both parents through continuation of the shared parenting arrangements outweigh the relative strengths of either Victoria or Toronto as a location in which to live. Therefore, in practical terms, the options that merit the most serious consideration are either joint custody and parenting in Victoria, or joint custody and parenting in Toronto.

It is clear that the other scenarios would be detrimental to the children, and contrary to their wishes. [ 123 ] In my view it is in children’s the best interest that they reside in Victoria. The benefits of Victoria outweigh the benefits of Toronto. The potential benefits in terms of greater exposure to the children’s Chinese language and heritage, even when buttressed with the factor of greater proximity to family in Toronto, are modest and debatable.

In my view the mother has likely overstated the importance of these factors and their possible benefits for the simple fact that she has a strong personal desire to relocate. The children are not culturally deprived while residing in Victoria, given the resources available to them here, the mother’s involvement, and the regular visits to visit family and participate in cultural events in Toronto. The factors relating to disruption favour Victoria. The benefits to the children from their parents’ career and financial prospects favour Victoria. B.

Custody Order [ 124 ] The parties will have joint custody of the children under the Divorce Act . The mother’s application to allow the children to relocate to Toronto is refused. Residency of the children is to be equally shared. [ 125 ] There is no need for an order appointing the parents as “guardians” under the FLA , as pursuant to that Act they are and remain guardians of the children unless there is an agreement or order otherwise: FLA s. 39(1)- (2) . Mr. Colby suggested that the parents share decision-making responsibilities for the children. However Mr.

Colby states that in the event of disagreement over such things as extracurricular activities, language and cultural involvement, the mother should have the final say. I do not accept this suggestion. In my view there is no difference between the parents in terms of competency to make decisions. I suspect Mr. Colby’s suggestion is rooted in a concern that the mother be allowed a stronger voice in cultural matters. The description of the topic is ill-defined and could lead to disputes. There is nothing to suggest that the father has been anything but supportive in relation to such matters.

I believe the mother overstated her concerns in these areas for strategic reasons. There is some evidence that the father is more open than is the mother to accepting reasonable professional advice in matters relating to the children’s welfare. I view that as a positive trait. Finally, such a direction may affect or distort the children’s perception of their parents or the order of the Court in ways that may not be positive. [ 126 ] Both parties are open to the appointment of a parenting coordinator under

Part 2, Division 3 of the FLA ( ss. 14 - 19 ). I order that the parties use the services of a parenting coordinator who shall have the authority set out in the FLA and Regulations. The parents will have liberty to apply in the event that they cannot agree on the selection of the parenting coordinator. The costs of the parenting coordinator are to be borne in proportion to the income of the parties for Federal Child Support Guidelines , SOR/97-175 (FCSG),

purposes. [127] The parties proposed differing schedules for equal sharing of parenting time. The mother suggested week on and week off(albeit in Toronto). Mr. Colby sets out two options: week on and week off, or 3-4-4-3 on a two week rotating basis. The father suggestsa two week rotation of 3-2-2-3-2-2. This would necessitate six exchanges over two weeks and is in my view likely to be overlydisruptive. I would favour either of Mr. Colby’s suggestions, subject to the parties’ mutual agreement or if necessary the parentingcoordinator’s decision. [128] At the conclusion of the trial I made an interim order pertaining to the details of the

schedule for parenting time and vacations. That order will remain in effect until a new order reflecting the terms of these reasons is pronounced or entered. [129] In their final submissions the parties each proposed fairly detailed forms of order, which of course depended on the outcome ofthe court’s decision in relation to the major issues. I will not address all of the details in these reasons. If the parties are unable to agreeon a form of order, or in any matter arising from these reasons requires clarification or further direction, they are at liberty to apply. C.

Child Support [130] Child support is to be paid in accordance with the FCSG. [131] I fix the father’s 2013 income for the purpose of child support payments at $90,381. [132] As noted, the mother expects to earn $60,000 to $65,000 this year, working part-time, as a locum. The father argues that incomeshould be imputed to the mother for child support purposes pursuant to s. 19 of the FCSG. [133] In my view there is no continued justification for the mother to limit her work to part-time.

The father argues that even with herreduced income as a locum for the past two years, if she worked full-time (five days per week) instead of part-time (three days per week)she could earn 1/3 more than she does; thus, her income should be imputed at $87,000. This is a modest gross up in my view. A purelyarithmetic gross-up would lead to an imputed income of about $108,000. I note that the mother earned $124,802 in 2011, working part-time as an employee. She has turned down offers of employment since leaving her employment in 2011. [134] I discussed the principles relating to imputation of income in R.W.L. v.

L.B., 2012 BCSC 457: Legal Principles [26] Child support payments are based on both earnings and earning capacity. Payments are based on what the parent actually earns,and also on what the parent has the capacity to earn. A parent has a legal obligation to earn as much as he or she is reasonably capable ofearning to meet the obligations to support the children: G. (S.) v. W. (G.), 2006 BCSC 991, [2006] B.C.J. No. 1463, and Earle v. Earle, (BC SC), 1999 BCSC 283, [1999] B.C.J. No. 383. [27] This principle is reflected in s. 19(1)(

a) of the Guidelines, which provides: 19.

(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstancesinclude the following: (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required bythe needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; [28] The principles applicable to the imputation of income were reviewed by the Court of Appeal in W

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