K.D.T. v. J.W.C. Date:, 2012 BCPC 44

Citation: K.D.T. v. J.W.C. Date: 20120217 2012 BCPC 0044 File No: 14674 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: K. D. T. APPLICANT AND: J. W. C. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Applicant: D. D. E. Lacusta Appearing in person: J. W. C. Place of Hearing: Abbotsford , B.C. Date of Hearing: February 15, 2012 Date of Judgment: February 17, 2012 Background [ 1 ] The parties to this application are the parents of two sons: I. K. T.(born d.o.b., 2002) and N. R.

T. (born d.o.b., 2004). The parties separated in 2006, and since that time the children have been in the care of their father, the Respondent. In early 2008 (he says February, she says May) the Respondent and the children moved to Ontario, while the Applicant remained in British Columbia. The Applicant says that the three of them were only supposed to live in Ontario for a year, something that the Respondent denies. [ 2 ] The Respondent and the children remained in Ontario until October 31, 2011 when they returned to British Columbia with the intention of residing here.

The Respondent had met a woman from Oliver, BC and planned to reside with her. Unfortunately that plan didn’t work out very well and the Respondent ended that relationship very shortly after he arrived. He and the children then moved to Penticton and lived with the Applicant’s parents for a time, and are now residing with his brother in Campbell River. [ 3 ] On December 14, 2011, the Applicant applied ex parte before the Honourable Judge C. J. Rounthwaite for an order for custody of the children.

That order was not granted, but Judge Rounthwaite ordered that the children were not to be removed from an area in British Columbia that included Penticton and the lower mainland. The order was not served on the Respondent until after he had moved the children to Campbell River (outside of the boundaries of Judge Rounthwaite’s order.) The order has since been amended to allow the children to continue to reside in Campbell River.

[ 4 ] The Respondent would like to return to Ontario where he has employment. The Applicant opposes this and Judge Rounthwaite’s order continues until further order of the court. The Respondent asks that this order be set aside so that he and the children can return to Ontario. [ 5 ] This matter came on for hearing on the afternoon of February 15 th . Shortly before the hearing, counsel for the Respondent, Mr. Nudel, applied for and was granted leave to withdraw from the record. The Applicant’s counsel believed that the hearing would not proceed so his client was not present.

Both sides were asked if they would like the matter adjourned, and both indicated that they wished it to proceed. [ 6 ] At the conclusion of the hearing I reserved my decision on this matter because there are a number of issues to consider: 1. Does this court have jurisdiction over these children? 2. Should an ex parte order have been made? 3. Should the ex parte order continue? [ 7 ] Following are my reasons for the order that I now make.

(1) Jurisdiction [ 8 ]

Part 3 of the Family Relations Act deals with the jurisdiction of the courts of this province to make orders concerning children whose parents may live in other provinces. The purposes of

Part 3 are set out in

section 43 of the Act as follows: (

a) to ensure that applications to the courts in respect of custody of, access to and guardianship of children will be determined on the basis of the best interests of the children, (

b) to recognize that the concurrent exercise of jurisdiction by judicial tribunals of more than one province, territory or state in respect of the custody of or access to the same child ought to be avoided, and to make provision so that the courts of British Columbia will, unless there are exceptional circumstances, refrain from exercising or decline jurisdiction in cases where it is more appropriate for the matter to be determined by a tribunal that has jurisdiction in another place with which the child has a closer connection, (

c) to discourage the abduction of children as an alternative to the determination of custody rights by due process, and (

d) to provide for the more effective enforcement of custody and access orders and for the recognition and enforcement of custody and access orders made outside British Columbia. [ 9 ] For a British Columbia court to have the jurisdiction to make an order for child custody or access, a number of pre-conditions must exist. The child must be either be habitually resident in this province, or else all of the conditions set out in section 44(1) (

b) of the Act must exist, which are as follows: (

i) the child is physically present in British Columbia at the commencement of the application for the order, (ii) substantial evidence concerning the best interests of the child is available in British Columbia, (iii) no application for custody of or access to the child is pending before an extraprovincial tribunal in another place where the child is habitually resident, (iv) no extraprovincial order in respect of custody of or access to the child has been recognized by a court in British Columbia, (

v) the child has a real and substantial connection with British Columbia, and (vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in British Columbia. [ 10 ] In this case, at the time that the application was brought, the children were residing with their father in British Columbia. This was not intended to be a vacation, or a brief visit. The Respondent had moved the children to this province with the intention of residing here.

Their home was in British Columbia until such time as they returned home to Ontario and established a new home there (which they had not yet done.) [ 11 ] The test for jurisdiction is also met if one considers the factors set out in Section 44(1) (b). The children were in this province at the time that the application was made. Substantial evidence about their best interests can be found in this province in the form of testimony from their maternal grandparents and others in the community.

There were no applications before the courts of Ontario concerning these children, nor are there any court orders in Ontario regarding their custody or access.

At the time that the Applicant brought her application the children had a real and substantial connection with the province by virtue of the fact that it was where they had lived for the previous month and a half, it was where they lived before they moved to Ontario and because it was the place intended to continue as their residence had it not been for the breakdown of the Respondent’s newest relationship. [ 12 ] All of the foregoing leads me to conclude that this court has jurisdiction to make an order pertaining to custody and access in respect of these children in accordance with

section 44 of the Family Relations Act .

(2) Should an Ex Parte Order Have Been Made? [ 13 ] A different standard applies at law when an application to review an ex parte order is made before a judge other than the one who made the order (as in this case) and when it is made before the same judge. In Waruk v. Waruk [1996] BCJ No. 2822 , the BC Supreme Court held that when an application to set aside an ex parte order is not heard by the same judge who made the order, such

applications are heard “de novo” (anew), both as regards the law and the facts. In this case the application was not set before JudgeRounthwaite and neither party objected to my hearing this application. [14] In T.C.S. v.

T.A.M. 2004 BCPC 487 , 2004 BCPC 0487, the Honourable Judge Davis of this court noted at paragraph[22] that ex parte orders “should be rarely made and only in only in emergencies or special circumstances – circumstances that are themost urgent.” He added that “the person making the application must use the utmost good faith and disclose all of the relevant evidence– favourable and unfavourable – to enable the judge to make the proper decision.

Failure to do so may lead to the order being set aside,dissolved or discharged.” [15] Any order made in an application of this nature must be made with the best interests of the child as a paramount concern. Section24 of the Family Relations Act directs that a court must have the child’s best interest as its paramount concern when making any orderpertaining to child custody, access or guardianship. In assessing a child’s best interests, the factors to be considered are: (

a) the health and emotional well being of the child including any special needs for care and treatment; (

b) if appropriate, the views of the child; (

c) the love, affection and similar ties that exist between the child and other persons; (

d) education and training for the child; (

e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rightsand duties adequately. [16] It is difficult at this stage to decide what is in the best interests of these children without a full and complete hearing. Each of theparents is making contradictory assertions and in a climate of “he said she said”, it is virtually impossible to conclude what is in thechildren’s best interest. On a review however, there are certain facts which are not in dispute: 1.

Since the spring of 2008 (perhaps earlier) the Respondent has been the primary caregiver of these children and has functionedin that role with little or no financial support from the Applicant. 2. The Applicant has maintained a relationship with the children. The extent of that relationship is in dispute. 3. The Applicant has raised concerns about the Respondent’s parenting capacity which, in the children’s best interest, deservefurther scrutiny.

These include the Respondent’s arrest in Ontario for possession of marijuana for the purpose of trafficking while thechildren were present with him in his vehicle, and his candid admission at this hearing that he “smokes a lot of marijuana.” 4. In the absence of the order made by Judge Rounthwaite, the Respondent would likely have the children in Ontario right now,making it considerably more difficult for the Applicant to exercise access. [17] During the course of the hearing before me, a recording of the evidence given by the Applicant before Judge Rounthwaite wasplayed back.

There were no surprises in that evidence and while some of that evidence is in dispute, there is nothing to suggest bad faithon the part of the Applicant or that she hid facts beneficial to the Respondent. The Applicant told Judge Rounthwaite that the Respondenthad been the primary caregiver of the children for the past number of years and Judge Rounthwaite quite properly denied the Applicant’srequest for an interim custody order. [18] The urgency involved in the making of Judge Rounthwaite’s order arose out of the fact that the Respondent was planning toremove the children out of British Columbia.

The Respondent admits that this is what his plans were. The best interests of childrenentitle them to a relationship with both of their parents. Access to the non-custodial parent is not the right of the parent; it is the right ofthe child. There may be cases where access is not in the best interests of children, but in the absence of any evidence of this, a courtshould presume that the children have this right. In Young v. Young (SCC), [1993] 4 S.C.R. 3, Chief Justice McLachlanof the Supreme Court of Canada put it as follows: The custodial parent has no "right" to limit access.

The judge must consider all factors relevant to determining what is in the child's bestinterests. [19] On a review of this matter, I conclude that there was no bad faith or apparent misrepresentation by the Applicant, that this courthad jurisdiction to make an order in respect of these children, and that sufficient urgency existed to justify the making of the limited exparte order that was made in this case. Under these circumstances, I am satisfied that it was appropriate for Judge Rounthwaite to makethe ex parte order which was made.

(3) Should the ex parte order continue? [20] In Gordon v. Goertz (SCC), [1996] 2 S.C.R. 27, the Supreme Court of Canada warned about the danger ofimposing too many restrictions on the rights of a custodial parent. Madam Justice L’Hereux-Dube wrote: [98] Having regard to these statutory parameters, limitation on the rights of the custodial parent should not be imposed as a matter ofroutine. Only if they are found to be required in the best interests of the child, from the child's point of view, can such limitations bejustified.

Consequently, it is evident that restrictions to incidents of custody cannot be made for frivolous reasons, for the sole purpose ofinsuring a non-custodial parent's access, to frustrate the custodial parent's mobility, as a bargaining tool, etc. [21] In this case there is no existing order for custody of these children. Under section 34(1) (

b) of the Family Relations Act theRespondent has a right of custody to these children and may therefore properly be considered to be a custodial parent. (To avoid anyconfusion or temptation on anyone’s part to resort to self-help remedies, I will confirm this in the order that I make.)

[ 22 ] The Respondent and the children have resided in British Columbia for almost four months. It is a brief period of residence, although this is not the first time that they have lived in BC. The Respondent has been the primary caregiver for the children since the parties separated. He has cared for them during this time without much support from the Applicant. (In her affidavit, she states that she did not provide for the children’s support because she was “never asked”, but in an earlier paragraph claims that she had the financial means to provide for them.

In the same affidavit she complains that he did not pay for her visits to Ontario, apparently thinking it reasonable for him to pay all of the children’s expenses as well as to pay for her to come and see them.) [ 23 ] The parties disagree about how significant the Applicant’s contact with the children has been since their separation. However there are some issues which present themselves that invite a review by this court of the current custody and access arrangements pertaining to these children. The children are not without family support in this province.

In addition to the parties, they have their maternal grandparents with whom they and the Respondent are close, as well as with their uncle and aunt (the Respondent’s brother and his wife). The best interests of these children require that further evidence should be called in order that the court can properly determine if a move is in their best interests and whether or not the Applicant’s opposition is being made for valid or frivolous reasons. [ 24 ] It is usual in mobility cases for an order preventing relocation of the children to continue until trial and I find that to be appropriate in this case.

However, out of respect for the Respondent’s position as the custodial parent, such an order should continue for as brief in duration as possible. This matter should be set for hearing at the earliest available date and it should be peremptory on the Applicant to proceed with her application at that time. [ 25 ] Were it not for the arrest of the Respondent on a serious drug charge while the children were present, the Respondent may well be allowed to take the children back to Ontario.

An application for custody by a non-custodial parent who has had limited contact with the children in the past three and a half years and who has hardly provided for the support of those children may well be considered as having little chance of success. It could therefore a frivolous application that should not restrict the mobility of the custodial parent. However the criminal involvement of a parent in the presence of the children may result in a change of custody. (An example of this can be found in W.R.B. v. T.P.N. 2001 BCSC 595 ).

Therefore it can not be said that this application is necessarily a frivolous one. [ 26 ] The Applicant has established that there are issues pertaining to the best interests of these children that require further evidence before it can best be determined where the children should reside. Subject to the concern expressed that this matter should proceed expediently, the restriction on removal of the children will continue until judgement is rendered at the trial of this matter. Order [ 27 ] For the foregoing reasons, it is ordered as follows: (

a) The Respondent J. W. C. shall have interim sole custody and guardianship of the children I. K. T., born (d.o.b.), 2002 and N. R. T., born (d.o.b.), 2004. (

b) The Applicant K. D. T. shall continue to have access to the children on the terms set out in the order of the Honourable Judge B. G. Hoy made on January 31, 2012. (

c) Neither party shall remove the children outside of that portion of the Province of British Columbia inclusive of all of Vancouver Island, and all areas in the mainland of the province located south of 50.7 degrees of latitude and west of -119.3 degrees of longitude (i.e. all points on the mainland of British Columbia west and south of Salmon Arm) without the consent of the other party or an order of this court. (

d) The application brought by the Applicant shall be set for trial on an expedited basis (with a Family Case Conference to be set prior to that time if available court time can be found for it). It shall be peremptory on the Applicant to proceed with her application on the scheduled trial date. Dated at the City of Abbotsford, in the Province of British Columbia, this 17 th day of February, 2012. _______________________________ The Honourable Judge K. D. Skilnick