L.R.H. v. J.J.H. Date:, 2016 BCPC 310

Citation: L.R.H. v. J.J.H. Date: 20160623 2016 BCPC 310 File No: 16339 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: L.R.H . APPLICANT AND: J.J.H . RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. F. M. JACKSON Counsel for the Applicant: Z. Blanche Counsel for the Respondent: K. Seikhon Place of Hearing: Smithers , B.C.

Date of Hearing: June 16, 2016 Date of Judgment: June 23, 2016 History [ 1 ] The parties were married in Abbotsford, B.C. on July 24 th , 2004. [ 2 ] The parties separated on June 30 th , 2009. [ 3 ] Two children were born of the union: • B.J.H., born [omitted for publication] • M.B.H., born [omitted for publication] [ 4 ] The parties entered a separation agreement dated April 8 th , 2011 and filed in the Smithers Registry June 7 th , 2012. [ 5 ] The parties entered a second separation agreement dated March 14 th , 2013 and filed in the Smithers Registry April 7 th , 2016. [ 6 ] J.J.H. first became aware of the filing of the agreements in May, 2016. [ 7 ] In July 2011, J.J.H. relocated to Mission, B.C. and has lived with the children there since.

L.R.H. continues to live in Smithers. [ 8 ] L.R.H. filed an application to amend the second agreement on April 7 th , 2016. [ 9 ] J.J.H. filed an application to amend the second agreement on May 18 th , 2016. [ 10 ] J.J.H. filed a Notice of Motion in Smithers on June 2 nd , 2016. [ 11 ] In negotiations, J.J.H. offered L.R.H. parenting time from July 4 th until July 9 th in addition to his scheduled time if he collected the children in Abbotsford and paid the preregistration Day Care costs for that period. [ 12 ] J.J.H. has booked holidays already for the week of July 30 th to August 6 th , 2016 and has arranged a camping trip with the children for August 25 th to 28 th , 2016. [ 13 ] J.J.H. seeks an order that if B.J.H. is “called up” to play on an older lacrosse team during L.R.H.’s parenting time that either the parenting time should be in Mission or he lose the time as the children should not be separated as B.J.H. “had a hard time” when L.R.H. had separate parenting time with M.B.H. before. [ 14 ] L.R.H. seeks an order that his parenting time during the school summer holidays should be 6 consecutive weeks from July 4 th , 2016 to August 20 th , 2016 to reduce the amount of travel time for the parties and the children. [ 15 ] L.R.H. wants parenting time early August as the Sockeye fishing season opens and historically he and the boys enjoy fishing.

The Issues [ 16 ] The issues are whether the file is transferred to Abbotsford registry and how should the parenting time be divided during the school summer holidays of 2016. Re: The Transfer application [ 17 ] J.J.H.’s position is summarized as follows:

a) neither party provided evidence of relative income but that child support was agreed in the first agreement based on income of $49,050 for L.R.H. It is suggested the court conclude that L.R.H. has a higher income than J.J.H. The court also noted that L.R.H. was to pay $300/month spousal support for J.J.H. for the first two years of the first agreement.

b) J.J.H. will have to take time off work for the trial and take the children out of school or hire child care if she has to travel to Smithers.

c) J.J.H. is employed Monday to Friday and L.R.H. is self-employed implying greater flexibility of his schedule.

d) J.J.H. intends on calling three witnesses at any hearing. These are the day care operator, supervisor and soccer coach. All are from the Mission area.

e) The children shall continue to reside in the Mission area. [ 18 ] L.R.H.’s position is summarized as follows:

a) It is not certain that the matter will go to a hearing.

b) The Smithers file was opened with the first agreement when both parties lived in Smithers.

c) There is no evidence of financial hardship.

d) L.R.H. works at least 40 hours/week in the bush and is accountable to his partners and clients.

e) L.R.H. shall be calling unspecified witnesses.

f) There is insufficient evidence to shift the balance of convenience from Smithers. The Law [ 19 ] Concerning the transfer application the court was referred to two cases: S.V.B. v. S.L.A. 2005 BCPC 724 and J.T. v. N.D. 2014 BCPC 76 . [ 20 ] S.V.B. v. S.L.A. reviews the earlier case law concerning the Supreme Court of B.C. Rules.

The case itself held that change of venue applications in the Provincial Court are governed by Provincial Court Family Rules 1 and 19. [ 21 ] Rule 1(1) reads: “The purpose of these rules is to allow people to obtain just, speedy, inexpensive and simple resolution of matters arising under the Family Law Act. [ 22 ] Rule 19(4) reads: Before granting permission to transfer a court file to another registry or to file an application at another registry the judge must consider:

a) the balance of convenience and

b) any special circumstances that exist. [ 23 ] J.T. v. N.D. adopted the ratio of S.V.B. v. S.L.A. In particular at paragraph 18 it quoted paragraph 26 of the S.V.B. decision. I am of the view that these issues should, like all matters involving the care an upbringing of children be resolved in a timely fashion and should result in the least disruption of the lives of the parties and particularly, the life of J. I must also consider the expense involved to the parties. [ 24 ] Paragraph 26 of J.T. v. N. D. considered future proceedings under the balance of convenience.

The judge found that “as future litigation would more likely concern J.’s upbringing in Kelowna, this making it the more convenient and logical location for such matters to be heard.” Analysis of Transfer Application [ 25 ] The onus on the transfer application rests on the applicant, J.J.H. [ 26 ] There is a lack of evidence on the relative financial ability of either party to manage travel to a distance court location.

The reference to L.R.H.’s relatively better financial position in 2011 does not clarify how much of a burden the travel would be on either party at this time. [ 27 ] Both parties suggest they shall call witnesses and the availability of video testimony or affidavit evidence as an assistance is applicable to either party. [ 28 ] Both parties claim difficulty in arranging their work schedules for a hearing date.

J.J.H. has submitted that she will have to either remove the children from school if she must attend court in Smithers or pay unspecified extra child care costs. [ 29 ] L.R.H. relies on the doctrine of dominus litis as the file was commenced in Smithers when both parties lived here. However, that doctrine was not imported from the Supreme Court rules into the applicable Provincial Court rules.

As well, J.J.H. had no knowledge of the opening of the Smithers file until L.R.H.’s application to amend the second agreement was launched this year. [ 30 ] The most weighty factor supporting a change of venue is the effect on the children if they have to miss school for the length of the hearing in Smithers or the unspecified child care costs if they are left in Abbotsford. [ 31 ] Related to that is the convenience of having any future litigation occur at the court closest to the children’s primary residence as in paragraph 26 of J.T. v.

N.D. [ 32 ] The factors in paragraphs 30 and 31 above are not definitive in themselves. In considering the whole of the evidence and lack thereof on financial hardship witnesses and scheduling, I must conclude that at this time the applicant has not discharged her onus to establish Abbotsford as the more convenient forum under Provincial Court Rules 1(1) and 19.

Re: the Allocation of Parenting Time during School Summer Holidays [ 33 ] Both parties have in their application and reply sought an order varying parenting time during the summer holidays in 2016 and years hence, along with other “amendments” to the separation agreement. However, the Notice of Motion that is before the court today limits the relief sought to the school summer holidays of 2016. [ 34 ] The issue centres on the week of July 30 th to August 6 th and to a lesser extent the week of July 4 th to July 9 th .

[ 35 ] Clause 4.8 of the agreement specifies that L.R.H. shall have a minimum of five weeks of the school summer holiday split to be non-consecutive, starting after July 2 nd each year unless agreed otherwise. [ 36 ] Clause 4.9 of the agreement specifies that unless agreed otherwise, J.J.H. shall have one week of summer parenting time after L.R.H.’s first three weeks. [ 37 ] J.J.H. has already booked holidays in advance to have the children the week of July 30 th to August 6 th , 2016.

L.R.H. suggests his parenting time be continuous from July 4 th until August 20 th to reduce the amount of time spent in travel to affect exchanges. [ 38 ] J.J.H. wants L.R.H.’s parenting time to be in Mission if the child B.J.H. has a lacrosse tournament during that parenting time or to forego that parenting time. [ 39 ] In effect, J.J.H. is seeking to enforce the separation agreement while adding a condition concerning lacrosse camp that reduces or makes more onerous the parenting time of L.R.H. [ 40 ] In effect, L.R.H. is seeking to vary the separation agreement to increase his parenting time to six consecutive weeks. [ 41 ] The onus is on both parties to satisfy that court that the variation sought is in the best interests of the children.

Section 37 of the Family Law Act states that to determine what is in the best interests of the children the court must consider all of the child’s needs and circumstances including ten listed factors. [ 42 ] Again the evidence on this part of the application is sparse.

The court must try to weight the beneficial effect of spending the week of July 30 th holidaying with their mother or with their father. [ 43 ] The court must try to weigh the benefit of B.J.H. attending a lacrosse tournament compared with holidaying with his father and brother or alternatively separating the parties’ two sons during the time of the possible lacrosse tournament. [ 44 ] The court must try to weigh the benefit of reducing the amount of travel time on the children created by consecutive parenting time with L.R.H. and similarly the detriment to the children of an extra trip to Abbotsford and return to Smithers if there is a lacrosse tournament. [ 45 ] Without more evidence this court cannot determine if the proposed changes to the agreement are in the best interests of the children.

This court concludes that it cannot find on the evidence before it that any variation of the separation agreement is in the best interests of the children for the summer of 2016. [ 46 ] Accordingly, L.R.H.’s parenting time for the summer of 2016 shall be from July 9 th , 2016 until July 30 th , 2016 and from August 6 th , 2016 until August 20 th , 2016 and he is not required to return B.J.H. to Mission for any lacrosse tournament unless he chooses to do so. [ 47 ] Obviously, the balance of the separation agreement remains unchanged until agreed to or further order of the court.

Order [ 48 ] The application to transfer the court file 16339 to Abbotsford Registry for all purposes is dismissed. [ 49 ] L.R.H. shall have parenting time with the children from July 9 th , 2016 until July 30 th 2016 and from August 6 th , 2016 until August 20 th , 2016. ___________________ W. F. M. Jackson Provincial Court Judge