Sanborn v. White, 2016 BCSC 1290

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Sanborn v. White, 2016 BCSC 1290 Date: 20160323 Docket: 16803 Registry: Smithers Between: Michael Sanborn Claimant And Brittany White Respondent Before: The Honourable Mr. Justice Macintosh (Via Teleconference) Oral Reasons for Judgment In Chambers Counsel for the Claimant, via teleconference: Brian G. Anslow Counsel for the Respondent: Terry E. Hudson Place and Dates of Hearing: Smithers, B.C. January 29, 2016 March 18, 2016 Place and Date of Judgment: Smithers, B.C. March 23, 2016 [ 1 ] Ms. Sanborn, now named Ms.

White, has brought an application, filed November 23, 2015, in which she seeks seven orders, plus costs. The first two requested orders are consented to by Mr. Sanborn, and I granted them at the first day of the hearing, on January 29, 2016. [ 2 ] The first of those orders is that the parties be divorced 31 days from January 29, 2016. [ 3 ] The second is that the style of cause is amended so that the applicant henceforth will be named Brittany White. [ 4 ] Mr. Sanborn and Ms. White married on August 28, 2010, and separated in June or July of 2013.

They have one child, a boy named Kohen, who was born in Smithers, British Columbia, on October 24, 2011. From the start of their relationship to now, the parties have always resided in or near Smithers. [ 5 ] However, on June 25, 2013, Ms. White travelled with Kohen to her family's home in Powell River on the Sunshine Coast in this province. Mr. Sanborn commenced this proceeding July 26, 2013. He sought shared custody and joint guardianship of Kohen with equal parenting time and equal contact with Kohen. Ms. White filed her response July 30, 2013.

In her counterclaim, also filed July 30, 2013, she asked for an order that she be permitted to move to Powell River with Kohen. On July 31, 2013, the parties consented to an order of this Court that Ms. White return to Smithers with Kohen by September 1, 2013, and she did that. Kohen, now 4, lives with his mother approximately 60% of the time, and with his father approximately 40% of the time. [ 6 ] The third order Ms. White requests on this application gives rise to the central issue before me. Ms.

White now seeks the order, first requested in her counterclaim, allowing her to move with Kohen from Smithers to Powell River. The fourth order is linked to the third. It is a request to transfer this court file from Smithers to Powell River for all purposes.

I will return to addressing the third and fourth requested orders later in these reasons. [ 7 ] The fifth order requested is expressed as follows in the application: Pursuant to s. 17 of the Divorce Act , or alternatively pursuant to the inherent jurisdiction of the Supreme Court of British Columbia, an order rescinding and replacing paragraph 2 of the consent order entered on June 6, 2014 (the "Order") on the basis that it is void ab initio as guardianship must be under the Divorce Act , not under both the Divorce Act and the Family Law Act as custody was granted under the Divorce Act in paragraph 1. [ 8 ] Pursuant to that request, I will amend paragraph 2 of the June 6, 2014 order by deleting "and the Family Law Act " in line 1.

Authority for that change is found in Royal Bank of Canada v. Skene and Christie, (S.C.C.), and Lochhead v. Lochhead,2011 BCSC 1662, at para. 21. [9] Ms. White advises that she no longer seeks the sixth order requested in her application. [10] Regarding the seventh requested order, addressing child support, I note it is common ground that the reference there toparagraph 11 in the earlier order dated June 6, 2014, should be to paragraph 10 of that order. As I understood the submissions ofcounsel, they have reached common ground on the wording for paragraph 7.

On that assumption, I asked them to craft the wording forthat paragraph when the order from these reasons is prepared for entry. [11] If I am wrong in understanding that paragraph 7 has now been settled, and if it requires further adjudication, I ask counsel toarrange a hearing by telephone before me at 9:15 a.m. on a date to be arranged with the Registry. Prior to such a hearing, each sideshould file a memorandum of argument of no more than three pages.

Both sides should file their memorandum at least three court daysbefore the hearing. [12] I return now to the relocation issue, addressed in paragraph 3 of the requested orders. [13] As noted above, the parties consented to an order made on July 31, 2013. It provided in paragraph 1 that Ms. White return toSmithers with Kohen by September 1, 2013. I also noted above that Ms. White complied with that order. [14] The parties consented to another order. It was the one made on June 6, 2014. That order, among other things, gave the partiesjoint custody of Kohen.

By paragraph 3 of the order, Kohen was to reside primarily with Ms. White, with Mr. Sanborn having parentingtime at least 40% of the calendar year. Ms. White submits that the wording of paragraph 3 was supposed to be "up to 40 percent", ratherthan "at least 40 percent", but nothing turns on that distinction for the purposes of my determining the relocation issue. [15] Paragraph 7 of the June 6, 2014 order is important in the present application.

It provides: "Brittany Sanborn [White] agreesthat she will not relocate from the Smithers area in the absence of a written agreement or further court order." It is common ground thatparagraph 7 refers to Ms. White not relocating with Kohen from the Smithers area. [16] The first questions to address are whether Ms. White must show a material change in circumstances in order to move withKohen to Powell River, and if so, what would constitute such a material change.

In my view, there is no basis for dispensing with therequirement that a material change in circumstances needs to be shown for varying the 2014 order: see Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27, at para. 49(1). The more central question is what constitutes a material change on the facts of this case. [17] Ordinarily, relocation in itself could probably be regarded as a material change. Perhaps more accurately, the facts giving riseto the request for relocation could be treated as the material change, but that is not the case here. It will be recalled that this litigationbegan in response to Ms.

White taking Kohen to Powell River to stay with her family. In her counterclaim filed July 30, 2013,Ms. White sought the relocation order which is the subject of this application. After returning to Smithers with Kohen, Ms. White andMr. Sanborn negotiated their positions, and part of the result was paragraph 7 in the 2014 order noted earlier, that Ms. White would notmove from Smithers without an agreement or court order allowing her to do so. [18] In the result, the proposed moved to Powell River cannot be regarded as a change in circumstances.

On the contrary, it was oneof the circumstances giving rise to the 2014 order in the first place. [19] Ms. White submits that the 2014 order in effect dispenses with the need for her to show a material change, but I do not see thatin the order. It simply contemplates the need for a further order to permit relocation.

It does not say or imply either that there is no needto dispense with showing a material change or that relocation to Powell River constitutes a material change. [20] The next question is whether there is some other material change so as to trigger the balance of the relocation analysissummarized in paragraph 49 of Gordon. I set out here all of paragraph 49 in that decision before continuing with the analysis: 49 The law can be summarized as follows: 1.

The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a materialchange in the circumstances affecting the child. 2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child,having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 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 circumstancesof the 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 of the 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. [ 21 ] From my review of the evidence, I am unable to conclude that there is the required material change in circumstances. As to what constitutes a material change, I note the following from J.G. McLeod, Child Custody Law and Practice (Carswell: 1992), at page 11-5: What suffices to establish a material changes in the circumstances of the child?

Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way. [authority is cited] The question is whether the previous order might have been different had the circumstances now existing prevailed earlier. [authority is cited] Moreover the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order.

"What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place." [ 22 ] The 2013 counterclaim, which was immediately preceded by Ms. White's move with Kohen to Powell River, demonstrates that at the time of the 2014 order, and long before, Ms. White's eventual full-time move to Powell River was actually contemplated, as distinct from being merely foreseeable. The fact that it was actually contemplated means that it cannot be viewed as a material change now: see Dedes v.

Dedes , 2015 BCCA 194 , paras. 24-26 . [ 23 ] I note that in her counterclaim filed July 30, 2015, Ms. White also pleaded that in Powell River she has employment and career opportunities. That pleading in itself, filed approximately a year before the 2014 order was made, indicates that employment and career opportunities in Powell River do not constitute a material change. I am not satisfied from either the pleading or the evidence that Ms.

White's employment and career opportunities in Powell River constitute a material change. (I will refer to that evidence below.) As a result, the relocation analysis cannot proceed further. [ 24 ] In case I am wrong in concluding that the material change threshold has not been satisfied, I examine below the case under the remaining criteria from Gordon , quoted above. [ 25 ] From my review of the evidence, the picture that emerges is that Ms. White, with the breakdown of the marriage, simply wants to return to her home and her family.

That wish is entirely understandable, but I am not satisfied that it is enough to justify separating Kohen from his father to the extent that such a move would require. Ms. White has proposed that Mr. Sanborn would have parenting time of six weeks in the summer and other time at Christmas and spring vacation. That, however, does not compare with the approximately 40% parenting time, which Mr. Sanborn now has. [ 26 ] Ms. White met Mr. Sanborn when tree planting in or about 2009. Their relationship caused her to move north to the Smithers area.

As she said in her affidavit filed November 19, 2015, at paragraphs 7 and 8: [7] ... We married shortly after I completed my studies in traditional animation at Capilano University. Traditional animation was my dream job; however, it is no longer an option for me as it requires that you remain current with technology and software developments, and that you work with a studio during your formative years. ... [8] I knew when I chose to move to Smithers and married Mike, much as Mike did, I would be foregoing my opportunity to become employed as a traditional animator. [ 27 ] The marriage now is at an end. Ms.

White indicated in her affidavit evidence that it was effectively over by the time she took Kohen to Powell River in 2013. As her affidavit evidence makes clear, and as I have noted, Ms. White wants to be back in Powell River with Kohen, having the love and support of her family. She prefers life in Powell River over Smithers in all respects, starting with the weather. She has now arranged employment for herself in Powell River as a full time dental assistant. The dentist in Powell River has also agreed to pay the cost of her certification as a dental assistant.

That would be new work from her viewpoint. [ 28 ] I have no doubt that if the central issue in this application was Ms. White's best interests alone, Powell River would be the obvious choice for her. Instead, as both parties I am sure recognize, it is Kohen's best interests which are to determine the outcome of this application. A significant factor in determining his interests is the exposure he can have to both of his parents. [ 29 ] Ms.

White, in stressing the advantages as she sees them of Powell River over Smithers, is asserting, directly and sometimes indirectly, that her preferred environment of Powell River would benefit Kohen as well. [ 30 ] However, I am in no position to conclude that Powell River is a better location for children than is Smithers. There is no admissible evidence to show that the schools are better in one place than the other. Ms.

White testified that buying suitable clothing for Kohen is difficult in Smithers and is comparatively easy in Powell River, but it must be the case in this day and age that suitable clothing can be found for Kohen, whichever place serves as his home base. I also expect that both places provide abundant opportunity for outdoor activities for a young boy. [ 31 ] Ms. White paints a bleak picture of her employment prospects in Smithers. She has been employed in Smithers, but she testifies that her job prospects there are limited to retail sales or service.

I am not persuaded, however, that employment prospects in Smithers are worse than in Powell River to the degree that they can be a determining factor in this application.

[ 32 ] Gordon emphasizes that the best interests of the child are to govern the outcome, not the interests of the parents. Paragraph 49(7) in that decision sheds light on what factors affect the child's interests. Those criteria, in my view, favour Smithers over Powell River. Kohen is now with his father approximately 40% of the time. Paragraph 49((7)(

c) in Gordon directs a judge to consider the desirability of maximizing contact between Kohen and both parents. I note as well that s. 16(10) of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.), provides that the court shall apply the principle that a child should have as much contact with each spouse as is consistent with the best interests of the child, and for that purpose shall take into consideration the willingness of the person for whom custody is sought to facilitate such contacts.

That is a dominant factor here, where to rule in favour of relocating would reduce the father's contact with Kohen to about eight weeks in a year. In the filed evidence is found the report of a parenting coordinator as ordered in the 2014 order. It speaks in support of Kohen's best interests being served by him having substantial time with each parent. [ 33 ] To conclude, it is my view that Kohen's best interests are to remain in Smithers, where he can be with both his parents.

Furthermore, in my view, a material change in circumstances would be required to authorize the relocation when that has not been demonstrated on the facts of this case. The third paragraph of the requested order is not granted, and the court file will remain in Smithers. [ 34 ] I am assessing costs in favour of Mr. Sanborn, but only in the total amount, for costs and disbursements, of $1,500, not payable forthwith. "MACINTOSH J."