K.B.M. v. D.B.I., 2022 BCPC 170

Citation: K.B.M. v. D.B.I. 2022 BCPC 170 Date: 20220826 File No: 1830249 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: K.B.M. APPLICANT AND: D.B.I. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.M. RIDEOUT Counsel for the Applicant: B. Danaei and R. Ingram Counsel for the Respondent: R. Chambers Counsel for the Children: S. Narbonne Place of Hearing: Vancouver , B.C. Dates of Hearing: July 20-23, 26-30, September 21-23, October 18, 19, 29, December 7-10, 2021, January 10-13, February 28, March 1, 2, 29, 30, May 6, 16, 27 and July 29, 2022 Date of Judgment: August 26, 2022 INDEX

I. INTRODUCTION .. 2 II. ISSUES .. 4 III. STATUTORY FRAMEWORK ON RELOCATION .. 5 IV. THE CASE FOR THE APPLICANT . 7 (

i) Anna Johnson . 7 (ii) Francine Leblanc . 8 (iii) Dr. Avraham Cohen .. 10 (iv) The Applicant 11 V. THE CASE FOR THE RESPONDENT . 18 (

i) S.W. 18 (ii) E.O. 20 (iii) Dr. H.K. 21 (iv) G.K. 21 (

v) K.M. 21 (vi) The Respondent 22 VI. THE S. 211 VCR .. 30 VII. The Children’s Advocate Reports .. 31 VIII. LITIGATION HISTORY .. 36 IX. ISSUES TO BE RESOLVED .. 37 1. Relocation .. 37 A. Position of the Parties . 37 (

i) The Applicant 37 (ii) The Respondent 39 (iii) The Children’s Advocate . 41 (iv) Views and Preferences of the Children .. 48 (

v) Application of S. 69(4) & (5) of the FLA .. 55 B. Best Interests of the Children .. 62 C. Ruling on s. 37(2) of the FLA on the Issue of Relocation to PEI 64 D. Relocation .. 64 2. Child and Spousal Support 65 A. Position of the Parties . 65 (

i) The Applicant 65 (ii) The Respondent 66 B. Analysis and Findings . 67 C. Ruling on Child and Spousal Support 71 X. GUARDIANSHIP .. 71 XI. PARENTAL RESPONSIBILITIES .. 71 XII. PARENTING TIME .. 72

XIII. OTHER CONDITIONS RELATING TO PARENTING TIME .. 74 XIV. CONDUCT ORDERS .. 74 XV. EXTRAORDINARY EXPENSES .. 75 XVI. FINANCIAL STATEMENTS .. 75 XVII. OTHER ORDERS .. 75 I. INTRODUCTION [ 1 ] K.B.M. (the “Applicant”) and D.B.I. (the “Respondent”) are the biological parents of a son, M.A.M, born [omitted for publication], and a daughter, Z.K.M., born [omitted for publication], (the “children”) who are at the centre of this family litigation. [ 2 ] The Applicant and the Respondent started a relationship in or around September 2001 in Kyiv in Ukraine. They were both attending university at that time.

The Applicant is Canadian and the Respondent is of Ukrainian/Russian heritage. [ 3 ] The parties were married on February 14, 2002 in Ukraine. In the latter part of 2002, they moved to Winnipeg, Manitoba. In 2004 they moved to Vancouver, British Columbia. [ 4 ] In December 2010 the Respondent’s father died. Her mother (“Baba”) came to live with them in January 2011. Baba recently died. [ 5 ] The Applicant has a Bachelor’s Degree in music and a Master’s Degree in Business Administration. He is also a Chartered Accountant but he does not have an active accounting practice.

He currently works out of his home as an officer and director of [omitted for publication] (the “company”). The company markets online organic products through two subsidiaries known as [omitted for publication] and [omitted for publication]. [ 6 ] The Applicant also works from home on his computer offering online coaching services, including outsourcing, to help clients pursue their business prospects with Amazon. [ 7 ] The Respondent has a Specialist Degree in music from the Ukrainian Academy of Music in Kyiv.

When she moved to Vancouver she attended the University of British Columbia (“UBC”) and received a Master’s Degree in Music Education in 2013. She is currently enrolled in a PhD program with the Cross-Faculty Inquiry in Education at UBC. [ 8 ] The Respondent is an accomplished pianist, and teaches piano on a part-time basis for a fee of $16.00 per hour. [ 9 ] The Respondent is of the view that they separated on December 22, 2017. The Applicant is of the view that they separated on March 7, 2018. In any event, the Applicant remained in the former matrimonial home in Vancouver.

The Respondent and the children were forced by the Applicant to move to alternative accommodation in Vancouver. Baba was also told to leave by the Applicant after a few days. [ 10 ] The marriage was in trouble before the birth of their daughter. That trouble deepened over time, and it resulted in toxic arguments that often took place in front of the children.

Both parties have alleged that their toxic relationship resulted in some physical violence, between both of the parties, but not involving the children. [ 11 ] The Applicant has surreptitiously and selectively recorded some of the toxic arguments that took place between the parties. At times the children were present during these arguments. [ 12 ] The Applicant initiated the family litigation when he made an ex parte application on March 2, 2018 seeking various orders, including a non-removable order and a conduct order.

The orders were granted, and the Applicant personally served the Respondent with a filed copy of the court orders on March 7, 2018. [ 13 ] Since that time, a further ten interim court orders have been pronounced dealing with various issues. The majority of the court orders turned on parenting time issues. [ 14 ] On December 16, 2020, a s. 211 Views of the Child Report (the “VCR”) was ordered.

The Family Justice Counsellor (the “FJC”) submitted a report on June 25, 2021. [ 15 ] On January 25, 2021 there was a further court order pursuant to s. 203(1) of the Family Law Act (the “ FLA ”) that a lawyer for the children be appointed (the “Children’s Advocate”). [ 16 ] The Applicant was opposed to both the VCR and the appointment of the Children’s Advocate. [ 17 ] The Applicant seeks various orders, including that his residence be the primary residence for the children, or, in the alternative, there be an equal division of parenting time. [ 18 ] The Respondent seeks various orders, including that her residence remain as the primary residence for the children.

She has also applied pursuant to Division 6 of the FLA to relocate the children to Prince Edward Island (“PEI”). The Applicant is “vehemently” opposed to the proposed relocation.

II.

ISSUES [ 19 ] The most pressing issue to be determined is whether it is in the children’s best interests to relocate with the Respondent to PEI. [ 20 ] In determining if it is in the children’s best interests to do so, has the Respondent proposed reasonable and workable arrangements to preserve the relationship between the children and the Applicant? [ 21 ] If it is determined that it is not in the children’s best interests to relocate with the Respondent to PEI, then it must be determined whether it is in their best interests to have the Respondent’s residence as their primary residence, or the Applicant’s residence as their primary residence. [ 22 ] Whether or not the Respondent’s residence or the Applicant’s residence is the primary residence for the children, a parenting time

schedule needs to be determined. [ 23 ] The Applicant has proposed that the parties share parental responsibilities in accordance with the “Joyce Model”. [ 24 ] The Respondent seeks retroactive and ongoing child and spousal support. III. STATUTORY FRAMEWORK ON RELOCATION [ 25 ] Division 6 of the FLA defines the meaning of relocation and establishes the framework for its application: 65

(1) In this Division, "relocation" means a change in the location of the residence of a child or child's guardian that can reasonably be expected to have a significant impact on the child's relationship with (

a) a guardian, or (

b) one or more other persons having a significant role in the child's life. 69

(1) In this section, "relocating guardian" means a guardian who plans to relocate a child.

(2) On application by a guardian, a court may make an order permitting or prohibiting the relocation of a child by the relocating guardian.

(3) Despite section 37 (1) [best interests of child] , the court, in making an order under this section, must consider, in addition to the factors set out in section 37 (2), the factors set out in subsection (4) (

a) of this section.

(4) If an application is made under this

section and the relocating guardian and another guardian do not have substantially equal parenting time with the child, (

a) the relocating guardian must satisfy the court that (

i) the proposed relocation is made in good faith, and (ii) the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life, and (

b) on the court being satisfied of the factors referred to in paragraph (a), the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise.

(5) If an application is made under this

section and the relocating guardian and another guardian have substantially equal parenting time with the child, the relocating guardian must satisfy the court (

a) of the factors described in subsection (4) (a), and (

b) that the relocation is in the best interests of the child.

(6) For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following: (

a) the reasons for the proposed relocation; (

b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities; (

c) whether notice was given under

section 66 [notice of relocation] ; (

d) any restrictions on relocation contained in a written agreement or an order. [ 26 ] Section 69(3) of the FLA requires that the court consider the best interests of the child factors as set out in s. 37(2): (

a) the child's health and emotional well-being;

(

b) the child's views, unless it would be inappropriate to consider them; (

c) the nature and strength of the relationships between the child and significant persons in the child's life; (

d) the history of the child's care; (

e) the child's need for stability, given the child's age and stage of development; (

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (

g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being. IV. THE CASE FOR THE APPLICANT (

i) Anna Johnson [ 27 ] Anna Johnson is a FLA clinical family counsellor. She is employed by West Coast Family Resources in Vancouver. [ 28 ] On March 23, 2018, Social Worker (“SW”) Kathryn Morgan with the Ministry of Children and Family Development (the “MCFD”) referred the parties to Anna Johnson after an MCFD Incident Report was initiated. In the Referral Assessment SW Morgan reported, in part, that in “2018 MCFD was contacted four times between January and March regarding reports of domestic violence”: Exh. 2, Tab E, 4, p.1. [ 29 ] Ms.

Johnson provided counselling services separately for the parties for approximately six months. She worked with the parties to encourage and improve co-parenting skills. [ 30 ] One of her goals was to try to find ways for the parties to improve communications with each other and to improve the transitions of the children from one parent to the other. Another of her goals was to encourage the parties to come up with schedules that were “child-focused”. [ 31 ] She testified that the Respondent truly believed in the children’s autonomy in deciding whether or not they wanted to go with their father. It was Ms.

Johnson’s opinion that while the children can have input, at the ages of 7 and 10 respectively, it was not developmentally appropriate they make that decision. [ 32 ] She was also of the opinion that the children had appropriate routines and structures at both households. [ 33 ] She met with the Respondent and the children at the Respondent’s residence on February 12, 2019. She confirmed in her Progress Report dated April 18, 2019 that the children “proudly” showed her around their house and showed her their favourite books and toys.

She described M.A.M. as “relaxed and articulate”: Exh. 6, Tab 21, p. 21. [ 34 ] M.A.M. agreed to meet privately with her for approximately 20 minutes. During the one-on-one session, M.A.M. told her that he found his visits with his father to be “boring” and that he only liked doing things with his mother. When that discussion was taking place, Ms.

Johnson noted in her report that M.A.M. became tearful: Ibid . [ 35 ] She denied in cross-examination that she recommended to the Applicant that he should apply for a police enforcement order in the event the Respondent denied him parenting time. (ii) Francine Leblanc [ 36 ] Francine Leblanc is a Supervising Social Worker with the MCFD. She testified that she assigned the MCFD Incident Report involving the parties in March of 2018 to SW Morgan. [ 37 ] She testified that once an Incident Report has been received, the next step is to gather information to determine whether or not an investigation is required.

The assigned social worker and other team members would interview all involved parties, including collateral contacts. [ 38 ] The information received in relation to an Incident Report is electronically downloaded into MCFD records. [ 39 ] She confirmed that the Incident Report in this case involved an allegation of domestic violence, during the course of which the Applicant allegedly broke one of the Respondent’s fingers.

[ 40 ] Ms. Leblanc recalled that, prior to this allegation by the Respondent, the Applicant had complained to the MCFD that the Respondent was physically violent towards him. [ 41 ] Ms. Leblanc identified a report that was made following an interview with Z.K.M. on March 9, 2018. The social worker who conducted the interview reported that Z.K.M. said that the Respondent wanted her to tell the social worker that the Applicant had broken her finger and had hit her: Ex. 3, Tab E, 13, p. 10. [ 42 ] Ms.

Leblanc identified a Safety Plan Report and a Family Plan Report designed to address the needs of the parties and their children, including goals and strategies to reduce the risk of conflict: Ibid , pp. 331 and 343. [ 43 ] She confirmed from records kept by the MCFD that the Respondent met with SW Morgan and one of her colleagues on March 14, 2018. During the course of that meeting it was reported, in part, that there were concerns the Respondent was alienating the children from the Applicant.

SW Morgan noted: [The mother] refuses to acknowledge any of the information disclosed by her children - and does not identify any concerns with how she is directing her children’s behaviours/feelings towards [their father]: Ibid , p. 15. [ 44 ] Ms. Leblanc identified a record in which she met with SW Morgan and they exchanged information concerning the Incident Report and a Vulnerability Report.

There was agreement that the Respondent “continues to demonstrate escalating inappropriate interactions/discussions/behaviours towards her children via the parental alienation of [the father] resulting in emotional harm to the children”: Ibid , p. 21. [ 45 ] Ms. Leblanc identified a Strengths and Needs Assessment Report prepared by SW Morgan on July 24, 2018.

In that report, SW Morgan opined that the children were experiencing emotional/behavioural problems leading to Z.K.M. making poor academic progress. “In sum”, the children were unable to cope with [the mother’s] psychological manipulation of them, resulting in [the father’s] role as a parent being undermined: Ibid , p. 82 at p. 5. [ 46 ] In cross-examination by the Children’s Advocate, Ms.

Leblanc agreed that the various Needs, Risks and Vulnerability Reports are structured along the lines of a risk assessment tool, in which interview information is inputted by a social worker and a conclusion is then generated. [ 47 ] Ms. Leblanc identified a report dated June 5, 2018 in which SW Morgan noted that [the father] “agreed” to inform his lawyer about requesting MCFD information: Ibid , p. 53. [ 48 ] It was brought to Ms.

Leblanc’s attention by the Children’s Advocate that Z.K.M.’s Primary Progress Report for 2017-2018 indicated that in all areas she either met or fully met academic expectations, in contradiction to SW Morgan’s opinion that Z.K.M. was experiencing poor academic progress: Exh. 6, Tab 5, p. 5. [ 49 ] The Children’s Advocate also brought to Ms. Leblanc’s attention a report generated by SW Dujmic following a home visit with [the mother] on October 11, 2018, in which it was noted that [the mother] was told by Ms. Dujmic that she was going to review her file and consult with the Team Leader about the future of the file.

Ms. Dujmic then noted, “ At this time it is clear to me that there is no evidence of parental alienation and that she is supporting visits between [the father] and the children ”: Exh. 3, supra , Tab E, 13, p. 49 (Emphasis added). (iii) Dr. Avraham Cohen [ 50 ] Dr. Avraham Cohen is in private practice. His areas of expertise include psychotherapy and relationship counselling. [ 51 ] The Applicant retained Dr. Cohen in April 2016 for marriage counselling. The Applicant advised Dr.

Cohen that he was experiencing a great deal of conflict with the Respondent, and all of this conflict was taking place in front of the children. [ 52 ] Dr. Cohen recalled that after his first counselling session with the Applicant, the Applicant sent him his passcodes for his iPhone and his iMac, to be used in the event “something happened to him”. Dr. Cohen described being surprised when he received the passcodes. [ 53 ] It was Dr. Cohen’s opinion, when he first met the Applicant, that he presented as a “very wounded, hurt” individual who also had some anger management issues.

As the counselling sessions proceeded, there was a definite improvement in the Applicant’s attitude. He is described by Dr. Cohen as “more polite and objective”. [ 54 ] Dr. Cohen opined that the Applicant’s children “mattered to him”. [ 55 ] Dr. Cohen testified that the Applicant attended upward of sixty-five individual sessions commencing in April 2016, and seven couples sessions with the Respondent commencing in November 2016: Exh. 4, Tab H, 6, p. 1. [ 56 ] Dr.

Cohen recalled that he may have suggested to the Applicant that if he could not reconcile his differences with the Respondent, he might want to prepare what he described as a “deadline letter” to be delivered to the Respondent. (iv) The Applicant [ 57 ] The Applicant’s testimony in both direct examination and cross-examination ranged over several days. I do not find that it is necessary to examine the minutiae of his testimony in determining the best interests of the children. Rather, I will distil the salient aspects of his testimony that will assist in determining the best interests of the children.

[ 58 ] As noted in the Introduction, the Applicant surreptitiously and selectively recorded toxic arguments he had with the Respondent. He testified that he commenced recording some of the arguments in 2016 because he was “fearful” that no one would believe him when he said the Respondent had a violent streak. [ 59 ] Counsel for the Applicant filed twenty-eight transcripts of audio recordings that commenced on September 7, 2016 and ended on October 5, 2018. The majority of the recordings were in 2018. There was only one recording in 2017.

Counsel for the Applicant played some of the recordings in court: Exh. 2, Tab D, p. 16. [ 60 ] I admitted the audio recordings in the trial as part of the Applicant’s case, but cautioned the Applicant that the weight I would give the audio recordings would very much be an issue in my decision. [ 61 ] One of the audio recordings played in court related to an incident on March 4, 2018. The Applicant had some family members visiting from Alberta. They decided to go to Grouse Mountain for a day trip.

The Respondent and the Applicant got into a heated argument in front of the Applicant’s family members. [ 62 ] On the drive back from Grouse Mountain to their residence, the two children were in the backseat of their car. The heated argument continued, with the Respondent using a string of profanities. The Respondent was clearly upset that the Applicant was not signing any separation agreement or divorce documents: Exh. 2, D, pp. 128-155. [ 63 ] After the MCFD became involved with this family, the Applicant sent weekly updates, including numerous audio recordings he made, to SW Morgan.

For example, on March 13, 2018, he sent an email with the subject heading “2 nd Physical Assault” containing a link to an audio file. [ 64 ] In the body of the email the Applicant notes, in part, “She is still yelling in the home after we come home. I attempt to interfere and ask her to stop yelling at the children, specifically my son.

She then unleashes her anger on me both physically and verbally… Hope this helps ”: Ex. 3, p. 273 (Emphasis added). [ 65 ] From the audio recording it cannot be determined what circumstances led up to the argument, though it would appear that the Respondent again wanted the Applicant to sign divorce documents and to get out of their lives. The Respondent clearly was upset, and liberally used profane language directed at the Applicant. At one point the Applicant can be heard to say “Ouch!

Don’t hit me”: Ibid , at pp. 274-287. [ 66 ] The Applicant testified that on July 1, 2018, while he was exercising parenting time with M.A.M., the Respondent and M.A.M. were exchanging text messages. Later that day, after M.A.M. fell asleep, the Applicant electronically copied the text messages from M.A.M.’s device and sent it to SW Morgan. It was his concern that the Respondent was interfering with his parenting time, and that she needed to “respect boundaries”. [ 67 ] In April 2018, the Applicant purchased a spy camera from the Spy Store in Vancouver to record the parental exchanges of the children.

He testified that the spy camera was not particularly effective, and, in his opinion, there was nothing of any evidentiary value in whatever he may have recorded. [ 68 ] In 2013, the Applicant accepted employment in Edmonton, Alberta. Excluding bonuses, the base salary was $140,000.00. Originally the plan was to move the entire family to Edmonton. The Applicant testified that the Respondent decided that she wanted to stay in Vancouver with the children. [ 69 ] The Applicant flew back to Vancouver twice per month to be with the family.

After six months, he resigned, and returned to Vancouver to seek other employment prospects. [ 70 ] In 2015, he was working as a controller for a company in Vancouver. However, that employment ended when he broke his right elbow on December 25, 2015 that required surgery to repair the injury. [ 71 ] In the fall of 2015, the Applicant was also providing online advertising services to clients. One of his clients went by the name of F.L. Apparently she was a massage therapist.

F.L. retained the Applicant to build a website to promote her business. [ 72 ] He testified that on occasion he went to F.L.’s place of business to receive payment for services that he had provided. On occasion she also drove him back to his residence. [ 73 ] He testified that on October 24, 2015, he was at home with the Respondent when there was a knock on the front door. He opened the door, and F.L. stormed in and began yelling about their relationship and hitting him.

He testified that he had no idea why she was acting in such a violent manner. [ 74 ] During the altercation she ripped his shirt, and he received a small cut. Though unclear, it appears he somehow managed to get her out of the residence and lock the door behind her. [ 75 ] After this incident (“the F.L. incident”), the Respondent “kicked” the Applicant out of the house. For six weeks he stayed with a friend of his who went by the name of D.

However, although he stayed with D. for six weeks, he never learned D.’s last name. [ 76 ] Counsel for the Applicant filed a series of emails exchanged between the Applicant and F.L.: Exh. 14. [ 77 ] In an email sent by the Applicant to F.L. dated November 13, 2015 at 2:33 PM, he writes, “Then why did you tell her that we were in a relationship? That you are my girlfriend? I never gave you such attention.” [ 78 ] In an email sent by the Applicant to F.L. dated November 19, 2015 at 11:21 PM he writes, in part, “It’s been 4 weeks now and you still have not answered my question: Why did you come to my home??

And she keeps asking me about naked pictures.”

[ 79 ] Many of the email responses from F.L. were confusing and, at times, bizarre. For example on November 12, 2015 at 9:30 AM F.L. sent an email to the Applicant in which she writes, “wanna talk! Talk what?? To talk ur ex-wife hurt? Talk ur family how sweet?? Ur wife don’t care about u!!

Even if sell you to the devil, she did not care! lol.” [ 80 ] The Applicant testified that he forwarded the string of emails to the Respondent, and they eventually reconciled and he was allowed to return to the family residence. [ 81 ] In January 2016, the Applicant established his company and began working online from the family residence. He testified that the company has ten full-time staff members, with a monthly payroll of $23,200.00.

The company staff reside in the Philippines. [ 82 ] He takes a monthly draw of $5,000.00 out of the company for his salary. [ 83 ] He operates the company business as well as his online coaching services from his computer station in the living room of the residence. [ 84 ] In cross-examination, he testified that he writes off a portion of the cost of the residence against his yearly taxes as a business expense.

He claims that he is “ very conservative ” when it comes to claiming business expenses on his tax returns (Emphasis added). [ 85 ] He testified that his online coaching business is, in his words, a “cash-in and cash-out” business. [ 86 ] He testified that he reports all business-related funds that he receives to the Canadian Revenue Agency (the “CRA”). He receives payment mostly by PayPal, e-transfers or mobile cheque deposits.

He has been audited by the CRA for eight consecutive tax years with no negative results. [ 87 ] He was taken through many of his bank statements with the Royal Bank of Canada (the “RBC Account”): Exh. 5, Tab L – 1. [ 88 ] Some of the bank statements with the RBC Account revealed significant account activity. For example, for the period of February 15, 2019 to March 15, 2019, there were 19 deposits either by way of PayPal or e-transfer. As of March 1, 2019, there was $15,256.21 in the account.

The closing balance on March 15, 2019 was $7,804.60. [ 89 ] He could not recall the clients responsible for the 19 deposits. He reiterated on several occasions that he was trying to be as “transparent” as possible in explaining his banking practices. [ 90 ] He explained that most of his client contacts are made through Facebook in which he offers online and outsourcing services.

Fees for his services are arranged through oral contracts, and there are no written contracts or written invoices. [ 91 ] He described his business as a “one-on-one business”, but adjusted his business approach in December 2020 in response to COVID-19 by offering online group coaching sessions via Zoom. [ 92 ] He testified that a personal friend of his, a nurse by the name of G.B., offered to help him make ends meet with respect to his personal expenses, notwithstanding the fact that she apparently had limited means herself. [ 93 ] For example, he agreed that in the month of October 2020, G.B. e-transferred funds in excess of $7,000.00 into his RBC Account with no strings attached.

However, he reiterated on several occasions that while there was no formal agreement to repay the money that she gave him, she did expect to be repaid the money at some point. [ 94 ] He testified that he currently earns between $10,000.00 to $15,000.00 per month gross from the company and from his online coaching services. [ 95 ] He testified that he began to receive Canadian Emergency Response Benefits (“CERB”) in May of 2020 in the net sum of $4,000.00 per month. [ 96 ] While he agreed that he could operate his company business and his online coaching service in PEI, he has no desire to do so. [ 97 ] It is his opinion that PEI is a great place to visit, but it has the “worst future in Canada”, which is why he is opposed to the children relocating there.

It is his view that Vancouver provides everything that one could need. [ 98 ] He testified that initially he objected to the s. 211 VCR because he was concerned about the process.

He denied not wanting to participate in the VCR, but was unable to do so in June 2021 due to the fact that he had a serious case of shingles. [ 99 ] In cross-examination by the Children’s Advocate, it was put to the Applicant that the FJC reported that she made multiple attempts to contact the Applicant by telephone, text messaging and email in June 2021 without success, and therefore the VCR does not include his perspective: Exh. 6, Tab 2, p. 3.

He testified that he was in pain from shingles and was unable to respond to text messages or emails. [ 100 ] A series of emails dated from June 8 to 11, 2021 were put to him by the Children’s Advocate. These emails included references to parenting time and a pending surgery M.A.M. required to repair a sinus: Exh. 4, Tab G, p. 22. [ 101 ] He identified the emails, but reiterated that he was in pain from shingles. He further explained that he remained concerned about the process for the VCR.

He agreed that at that time he could have contacted the FJC to inquire about the process. [ 102 ] It is his opinion that the views of the children are not reliable. However, he agreed that in “hindsight” he could have participated in the VCR, and wished he had done so. [ 103 ] He testified that he was also opposed to the appointment of the Children’s Advocate. He does not think it is “appropriate for

children to have legal representation in a climate of alienation”. [ 104 ] At the hearing before Judge Phillips on December 28, 2018, the Applicant deposed that in 2018 he had had no overnight visits with Z.K.M., contrary to the Interim Order pronounced by this Court on March 12, 2018, which established the Applicant’s parenting time.

However, in cross-examination, the Applicant agreed that in fact he did have two overnight visits with Z.K.M. [ 105 ] He agreed that he has occasionally requested police assistance to either enforce a parenting order or in response to family violence. [ 106 ] He agreed that on June 29, 2018 at 5:30 PM, the UBC RCMP became involved in enforcing the Applicant’s parenting time with his children.

The synopsis of the police report filed by the Applicant notes, in part: At approximately 1540 hrs., [the Respondent] attended University RCMP detachment to drop off [the children] to the [Applicant]. [They] attended at the front desk for police assistance in the matter. [M.A.M.] continuously refused to get in the car to go with the [Applicant]. [The parents and the children] were visibly upset and emotional, particularly the children. [M.A.M.] also attempted to run away but [Cst. T.], caught up with [M.A.M.] and brought him back to the car.

At approximately 1620 hrs., [M.A.M.] finally agreed to get in the car as per court order. [Z.K.M.] went into the car without issue, but upset: Exh. 6, Tab 20 (Emphasis added). [ 107 ] An application was made by the Respondent in July 2021 during this trial in which she sought an Order permitting her to take the children on a three-week vacation to PEI in August to visit the Professor. [ 108 ] The Children’s Advocate supported the proposed vacation.

The children told their Advocate that they wanted to experience life in PEI, including going to see the school that they would attend if they relocated to PEI. [ 109 ] The Applicant was opposed to this vacation, expressing concerns that the Respondent might not return to British Columbia with the children. He also said that a vacation would not realistically resemble what life would be like for the children if they relocated to PEI. [ 110 ] Though opposed by the Applicant, the Court met with the children.

Following that meeting, the Court made a finding that it would be in the best interests of the children that they be allowed to go on vacation to PEI. The vacation took place, and the Respondent returned to Vancouver with the children. V. THE CASE FOR THE RESPONDENT (

i) S.W. [ 111 ] The Respondent is engaged to Professor S.W. (the “Professor”). It is her intention to marry the Professor once she is divorced from the Applicant. [ 112 ] The Professor testified that he is employed as a full professor at Prince Edward Island University (“PEIU”). He was hired as an associate professor in 2008, and achieved the status of a full professorship in July 2019. His annual income can be as high as $160,000.00. [ 113 ] He met the Respondent at UBC when she was enrolled in the Master’s program in Music Education. The Professor was enrolled in the PhD program in the Education Department.

He described their research areas as overlapping. [ 114 ] His relationship with the Respondent developed into a more serious relationship when she came to PEIU in January 2018 to do a presentation for one of his classes. [ 115 ] Since that time, the Professor has come to Vancouver to stay with the Respondent and her children for up to three months per year. [ 116 ] The Professor is of the opinion that the Respondent prioritizes the needs of the children.

It is also his opinion that the Respondent and the children are devoted to each other. [ 117 ] He recognizes that the children have one father and that is the Applicant. He has no intention to usurp the role of the children’s father. The children call the Professor by his first name. [ 118 ] In the past, the Professor was certified by Tennis Canada as a tennis coach.

He continues to be active in tennis. [ 119 ] When the Respondent and the children went to PEI in August, some of the time was spent playing tennis, going to the Professor’s three-bedroom fully-equipped waterfront cottage at Merry Harbour, and exploring the island. One of the activities was horseback riding, which the Professor described as a “big hit” for the children. [ 120 ] The Professor is the owner of a five-bedroom residence on a cul-de-sac in a suburban area of Charlottetown.

His residence is close to the schools that the children would attend if they relocated to PEI. [ 121 ] He testified that Z.K.M. has expressed an interest in becoming a veterinarian. PEIU offers a veterinarian program. M.A.M. has expressed an interest in becoming a doctor. It is anticipated that PEIU will be offering a medical program in the near future. [ 122 ] If the Respondent relocates to PEI with the children they will benefit from his medical/dental plan. The children would also have their tuition covered should they want to attend PEIU.

[ 123 ] The Professor is aware that approximately 50 to 65 residents of Ukrainian heritage live on the island. He described this community as a “growing community”. The island also has an Eastern Orthodox Church. [ 124 ] The Professor confirmed the Respondent has applied for and was granted a PEI teaching licence.

In the event the Respondent and the children relocate to PEI, he anticipates that the Respondent would have to first do some substitute teaching before securing a full- time teaching position. [ 125 ] He anticipated that her entry level annual salary would be in the range of $70,000.00, with the top of the possible salary scale being $160,000.00. [ 126 ] He advised that PEI is serviced by three airline carriers, being Westjet, Flair and Air Canada. [ 127 ] While he has financially assisted the Respondent on occasion, she does not reach out for assistance.

It is his impression that the Respondent wants to be in control of her finances and to be financially independent. (ii) E.O. [ 128 ] E.O. testified that she has known the Respondent and her children for approximately 15 years. E.O. has a son that is the same age as M.A.M. and attends the same Russian school as M.A.M. and Z.K.M. [ 129 ] E.O. characterized the Respondent as a caring and devoted mother. E.O. was “impressed” with the Respondent’s ability to exercise patience toward her children.

It is her opinion that M.A.M. and Z.K.M. are very attached to the Respondent. [ 130 ] Over the years that E.O. has known the Respondent, she never observed the Respondent direct any physical or psychological harm toward the children. (iii) Dr. H.K. [ 131 ] Dr.

H.K. testified that she has known the Respondent for approximately three-and-a-half years. [ 132 ] She provided accommodation and care for Baba after the Applicant evicted her from his residence shortly after the Respondent moved out with her children. [ 133 ] It is her opinion that the Respondent is an excellent mother. (iv) G.K. [ 134 ] G.K. is a doctoral candidate in the Education Department at UBC.

She has known the Respondent for approximately three to four years after they met through UBC student housing in 2018. [ 135 ] From her interactions with the Respondent and her children, it is G.K.’s opinion that the Respondent is a devoted and caring mother who puts the needs of her children first. She characterizes the role of the Respondent as being the primary caregiver for her children. [ 136 ] G.K. has a son who occasionally played with M.A.M. and Z.K.M. The children were enrolled in a Lego Robotics program at their school that, for a period of time, was coached by the Applicant.

It is G.K.’s opinion that the three children enjoyed Lego Robotics. G.K. describes the Applicant as an individual who did his best to be a good coach for the children. (

v) K.M. [ 137 ] K.M. has known the Respondent and her children for over 11 years. It is her opinion that the Respondent is an excellent mother. [ 138 ] K.M. characterizes the role of the Respondent as the primary caregiver for her children. Even when the Respondent was enrolled in her doctoral program at UBC, she gave priority to the needs of her children. [ 139 ] K.M. had some interactions with the Applicant prior to the separation of the parties. It is her opinion that the Applicant had a good relationship with his children prior to separation.

Since the separation of the parties, K.M. has never heard the Respondent say anything to discourage the children from seeing their father. (vi) The Respondent [ 140 ] The Respondent’s testimony in both direct examination and cross-examination ranged over several days. I adopt the approach taken in examining the Applicant’s testimony. I do not find it necessary to examine the minutiae of her testimony.

Rather, I will distil the salient aspects of her evidence that will assist in determining the best interests of the children. [ 141 ] As noted, the Respondent is currently enrolled in a PhD program with the Cross-Faculty Inquiry in Education at UBC. However, she has deferred completion of the program, largely as a result of the personal stress arising from this litigation. She intends to complete the PhD program at a later date. The PhD program can be completed at PEIU. [ 142 ] It was her opinion that “significant cultural differences” developed between the parties early in the relationship. It was also her

opinion that the parties were not on the “same page” when she became pregnant with Z.K.M. At one point in their relationship, the Applicant denied being Z.K.M.’s father. [ 143 ] Contrary to the testimony of the Applicant, she denied that after he secured employment in Edmonton in 2013, she told him that she would move to Edmonton with the children.

She testified that she told him that she was not going to go to Edmonton because the winters in the prairies were too cold. [ 144 ] When the Applicant moved to Edmonton, he continued to pay the rent for the family residence, as well as paying approximately $1,200.00 per month for provisions.

She testified that there was little contact with the Applicant when he was in Edmonton, though he did come back to visit the family on a couple of occasions. [ 145 ] Originally the parties had both a joint bank account and a joint credit card. [ 146 ] As the relationship deteriorated, the Respondent established her own bank account. Since the separation of the parties in March 2018, she has endeavoured to financially care for her family through the receipt of grants, awards, bursaries and scholarships available federally and/or through UBC.

For example, in 2016 she received a scholarship from UBC in the sum of $15,000.00 that she used to pay for tuition fees and living expenses for the family. [ 147 ] She was awarded, in 2018 and 2019 respectively, scholarships of approximately $25,000.00 for each year. She has received a B.C. Housing rent subsidy for the last three years, the GST Rebate, and CERB in 2020.

She also receives some modest research funds through the federal government. [ 148 ] She admits that the Professor has paid for some expenses, particularly so when the parties were together, either in PEI or Vancouver, but otherwise denies that she receives any money from the Professor. [ 149 ] While it has been a struggle financially over the last three years, she has managed to make it work from month to month, although, in her words, she does not believe that she has “budget sense”. [ 150 ] Regarding the F.L. incident in 2015, the Respondent recalled that it was a Friday afternoon when she heard a knock at the door.

She went into the bedroom to get dressed when she heard a commotion. When she went into the living room area, she saw the Applicant “fighting” with a woman. [ 151 ] She asked the Applicant, “Who is this? I don’t know her”. The woman responded stating, “He’s cheating on you, he is lying to you, we have place in Vancouver, we have pictures of each other”. [ 152 ] The police became involved, and at one point the Applicant was put in handcuffs and placed into a police car.

He was later released. [ 153 ] When he came back into the residence, the Respondent noted that his shirt was torn and that he had a cut from the altercation with the woman. [ 154 ] The Respondent was very upset, and demanded to know what had just happened and whether this woman going to be a “problem”. The next day she told the Applicant that he had to leave the residence, and they separated for approximately six weeks before they reconciled. [ 155 ] During the course of this separation, the Applicant sent a series of letters of apology to the Respondent.

In one of the letters the Applicant expressed his concerns over his inability to deal with his feelings, and “especially” his anger.

He notes, “This is why when it would come out, it seems so violent - because it’s only when I cannot hold it any longer, when I get so angry that I express myself”: Exh. 6, Tab 11, p. 12. [ 156 ] The Respondent testified that there were other occasions when the Applicant’s anger resulted in physical violence, including an altercation around Christmas of 2017 during the course of which the Applicant punched a hole in a door at the residence. [ 157 ] She has never observed any physical violence being directed by the Applicant toward the children. [ 158 ] She testified that both of the children require on-going extensive dental care.

The total cost to date exceeds $12,000.00. She has paid some of the dental costs, but significant sums remain outstanding: Exh. 37. She is claiming the dental costs as a special expense to be shared between the parties. [ 159 ] In the event the Respondent is allowed to relocate with the children to PEI, the Professor will make arrangements to cover the family on his medical and dental plan through PEIU. [ 160 ] The Respondent testified that the children have been very involved with the Russian School sponsored by the [omit for publication]. The school sessions take place on Saturdays.

At the Russian school, the children learn Russian history, dancing and the Russian language. If the children were with the Applicant on a Saturday, he was responsible for taking them to the Russian School and picking them up afterwards. [ 161 ] She is claiming the Russian School fees as a special expense.

The Saturday School Principal confirmed in writing dated September 30, 2021 that the Respondent has paid total fees from September 2017 to June 2021 of $5,234.00: Exh. 37, p. 4. [ 162 ] While a Russian school is not available in PEI, there is a developing Ukrainian community that the Respondent intends to participate in with the children to promote their cultural heritage, if they relocate to PEI. [ 163 ] In relation to the initiation of legal proceedings she recalls driving the Applicant to a business appointment in Vancouver on March 2, 2018.

She later discovered that he was not attending a business appointment. In fact he was making an ex parte application to a

judge of this Court seeking various orders, including a non-removal order. [ 164 ] The Court granted the orders requested by the Applicant, including an order that he serve the Respondent with a copy of the Order, a copy of his Notice of Motion with supporting Affidavit, his Application to Obtain an Order (all filed March 1, 2018), and a blank Reply Form on or before 5:00 PM on March 7, 2018: Exh. 6, Tab 1, p.1. [ 165 ] The Respondent testified that in the afternoon of March 7, 2018, the Applicant served her with the various court documents and told her that she should get legal advice.

She describes being upset and angry. [ 166 ] A confrontation then took place. She describes the Applicant as the aggressor, backing her up into the bedroom where he struck her left pinkie finger and broke it. She describes pushing the Applicant, causing him to fall into the closet. The Applicant then called the police. [ 167 ] SW Morgan with the MCFD became involved with the family on March 8, 2018.

The MCFD continued to be involved with the family until December 2018. [ 168 ] In both direct examination and cross-examination, the Respondent testified that she never did anything to alienate the children from the Applicant. However, she is steadfast in her belief that it is important that the children have a say in relation to scheduled parenting time. [ 169 ] It is her opinion that the involvement of the police in enforcing the Applicant’s parenting time distressed the children.

She recalls receiving a phone call from the police in March 2019, advising her that they were at her residence to enforce parenting time for the Applicant. [ 170 ] The Respondent, who was away from her residence, went back to it. She recalls that at her residence, M.A.M. fainted at one point. The police eventually removed both children and took them to the Applicant, who was waiting in his car outside of the residence. She described M.A.M. flailing his arms as he was physically removed from the residence. [ 171 ] She agreed that there were occasions where parenting time transitions did not go smoothly.

For example, she recalled an incident in March 2020, when the Applicant sent a friend of his to pick up the children from the school rather than himself. [ 172 ] The principal did not know this person. The principal was aware of the conflict in this case. He contacted the police, seeking their assistance in identifying this person.

The police attended at the school and advised the person sent by the Applicant that it would be best if the Applicant picked up the children and not an unknown party. [ 173 ] The Respondent testified that since the pandemic was declared, the court-ordered parenting time schedules have been followed by both her and the Applicant. She is of the opinion that the parenting time exercised by the Applicant is going much better, particularly so in relation to M.A.M.

Z.K.M. told her mother that she feels that she is often ignored by her father. [ 174 ] Regarding her employment status, the Respondent continues to teach piano lessons, and still has funds left over from various awards, grants, bursaries and scholarships.

She has also had some part-time employment with [omitted for publication] located in Vancouver. [ 175 ] She has applied for numerous professional teaching positions in British Columbia and in Lethbridge, Alberta. [ 176 ] She was hampered in her search for employment, principally due to the fact that she does not have a Bachelor’s Degree in Education, which is required in all provinces except PEI.

If she relocated to PEI, she would be able to commence teaching as a substitute teacher, which she expects would eventually lead to full-time employment. [ 177 ] In cross-examination, she denied that there was available employment for her in British Columbia, notwithstanding her expertise in education. She testified that she does not have an Approved Teacher Education Certification, which would be required for her to teach in British Columbia. [ 178 ] It was suggested to her that she was qualified to apply for a Temporary Teaching Certificate (“TTA”) which would allow her to find employment in British Columbia.

She testified that she did not have the $400.00 fees to apply for a TTA. [ 179 ] She applied for positions at UBC in 2019 and 2020, but her applications were not successful. She has not applied for any positions at Langara College, Douglas College or Capilano College, because she is educated in music education and is unaware of any music education programs that are available at those colleges. [ 180 ] She denies that she has not made a robust effort to find employment in British Columbia. [ 181 ] She denies that the primary reason she wishes to relocate to PEI is to be with her fiancé.

She believes the lifestyle in PEI, the cost of living, the social diversity and the prospect of securing employment weigh in favour of her relocating with the children to PEI. [ 182 ] She denies the suggestion that she has actively thwarted the Applicant’s ability to exercise parenting time, in particular with Z.K.M., by intentionally keeping her on weekends that would otherwise have been parenting time weekends for the Applicant. [ 183 ] It is her opinion that the children are sufficiently mature to adjust to a workable parenting time

schedule with the Applicant if they relocate to PEI. It is also her belief that it will be “their responsibility” to see the Applicant. [ 184 ] However, she recognizes that if relocation to PEI is granted, it will be important for the children to stay connected to the Applicant by utilizing social media platforms such as Zoom, and in person by flying to Vancouver for extended vacations with the Applicant.

[ 185 ] If relocation to PEI is granted, the Respondent would chaperone the children on their travel to Vancouver. She has a friend she can stay with in Vancouver in the event the children require a period of time to settle down with the Applicant.

She proposes that the parties equally share the travel costs for the children, and that she would be responsible for her own travel expenses. [ 186 ] Early in this trial, the Respondent expressed hesitation in being vaccinated for COVID-19, notwithstanding repeated comments made by the Court that it is in the best interests of the children that all COVID-19 protocols be followed, including vaccinations, if there is to be a relocation of the children to PEI. [ 187 ] The Applicant was fully vaccinated by the fall of 2021.

On March 24, 2022, the Respondent arranged for a first Pfizer vaccination for herself and the children. This was confirmed in an Affidavit filed March 27, 2022. [ 188 ] The Respondent testified that in 2018 she began to keep a journal to document either positives or negatives in the Applicant’s parenting time with the children: Exh. 20. [ 189 ] She noted that there were frequent problems in relation to the exchange of the children’s backpacks, which are very important to them.

This even resulted in her asking the police on July 13, 2018 to deliver Z.K.M.’s backpack with her toothbrush and clothes to the Applicant. She agreed the police advised her that this was not part of their duties, and that she should return to the courts to resolve these types of situations. [ 190 ] She documents in her journal her observations of the children when they were resisting having parenting time with the Applicant.

There were occasions when the children told her they did not want to be with the Applicant, including occasions where, in particular, Z.K.M. was crying and refusing to be with the Applicant. [ 191 ] She testified that since the end of 2018, the Applicant’s parenting time with the children has been in compliance with court orders.

However, Z.K.M. has complained that when she is with the Applicant, she is often bored, as there are few activities that she does with her father. [ 192 ] When the children went to PEI in the summer of 2021, the Respondent made sure that all COVID-19 health protocols were followed. [ 193 ] It is her opinion that the children had a wonderful time in PEI, participating in many activities. They visited the schools and school grounds that they would attend if the relocation is granted. They spent time playing tennis, and spent some time at the Professor’s seaside cottage.

Z.K.M. became very attached to the Professor’s dog, Lucy. [ 194 ] The children prepared extensive journals, including photographs, documenting their vacation experience in PEI. The journals were filed by the Respondent: Exh. 16, 17 and 18. [ 195 ] The Respondent agreed, both in direct examination and cross-examination, that communication between the parties is a challenge, and will likely continue to be a challenge in the future. She agrees there is little collaboration or cooperation between the parties. [ 196 ] She agrees that the two parents have opposing parenting styles.

She firmly believes that the wishes of the children need to be honoured. For example, she left it up to M.A.M. to decide whether or not he wanted to give his cell phone number to his father. [ 197 ] She felt M.A.M. should be able to make that decision because at one point in 2018, while the Applicant was exercising parenting time, he electronically copied the text messages from M.A.M.’s device, capturing text messages between mother and son, while M.A.M. slept: Exh. 1, C, 1. She testified that M.A.M. was extremely upset about that action, as he considered it to be an invasion of his privacy. VI.

THE S. 211 VCR [ 198 ] In the s. 211 VCR the FJC notes the following: [D.B.I.] and [K.B.M.] are parents to [M.A.M.] and [Z.K.M.]. Each party was contacted to have the opportunity to provide a brief history and their perspective on the matters before the Court. I interviewed [D.B.I.] by telephone on June 14, 2021. Multiple attempts to connect with [K.B.M.] were made by telephone, text messaging, and email in June 2021. Contact with [K.B.M.] remains unsuccessful.

As such this report does not include his perspective and is limited in that regard: Exh. 6, Tab 2, p. 2. [ 199 ] Z.K.M. told the FJC that the rules and expectations at her two homes are different: When she is at her father’s she must do chores before receiving permission to watch television or go on play dates. Her responsibilities include dusting and cleaning counters. She does not like cleaning of the home. If she misbehaves at her father’s, such as argue with her brother, her father may talk to her about her behaviour or ground her. At her mother’s [Z.K.M.] has no rules and no chores.

She noted that bedtime is around 9 PM. When she is disciplined at her mother’s, her and her mother have a talk, and her and [her brother] are separated and encouraged to have time apart: Ibid , at p. 4. [ 200 ] When asked about the impact of her parent’s separation on her and her future aspirations, Z.K.M. told the FJC: [She] does not remember when her parents separated but believes she was four years old.

She recalls having to leave her home because there were police officers present. [She] says her parents “do not talk.” They do not ask questions or make inquiries about one another. [She] believes that in the past her father has called her mother “bad names”. The name-calling caused her to “feel bad”. Near the end of the interview she decided she had one more thing to tell me. [She] indicated that she wanted to get permission to travel to PEI. She said, “… this summer I really want to go to PEI to check it out with mom and [my brother]”: Ibid , at p. 4.

[ 201 ] The FJC describes M.A.M. as “engaged” and reports that he spoke “articulately”: Ibid . M.A.M. generally spoke favourably about both his parents. He noted that his mother is “patient” and “never gets mad”. He noted that his father is “less patient than his mother”: Ibid , at p. 5. [ 202 ] In discussing a possible relocation to PEI, M.A.M. suggested that his father could move to PEI, as he has an online business. He believes that a new city to “call home” would benefit both his parents and his sister: Ibid , at p. 6. [ 203 ] In her

summary, the FJC notes, in part: Z.K.M. presented as a friendly young girl. She appeared comfortable sharing her thoughts and feelings. She has a close relationship with her brother and trusts and confides in him most. [She] enjoys her mother’s relaxed home environment. M.A.M. presented as a bright pre-teen. Speaking articulately, he appeared confident discussing family dynamics. He appreciates the routine of the current parenting arrangement. However, he seeks increased independence and flexibility regarding the

schedule to accommodate travel and recreation activities: Ibid . VII. The Children’s Advocate Reports [ 204 ] The Children’s Advocate prepared two sets of reports in relation to the wishes and needs of the children, dated July 9, 2021 and March 22, 2022: Exh. 6, Tab 3 and Exh. 42 and 43. [ 205 ] As noted, the Applicant was opposed to the appointment of an Advocate for the children. As this trial ranged over many months, the Court directed that there be an update prepared by the Children’s Advocate to assist the Court in making orders that are in the best interests of the children.

The Court’s direction for an update was also opposed by the Applicant. [ 206 ] In her report dated July 9, 2021, the Children’s Advocate describes Z.K.M. as a “...confident, energetic ten-year-old. She has been interviewed many times over several months by the Child and Youth Legal Centre. All our conversations have been private”: Exh. 6, Tab 3, p. 1. [ 207 ] She told her Advocate that she is very close to her brother, and she does not want to go to the Applicant’s residence unless her brother is with her. [ 208 ] The Advocate describes Z.K.M. as a “... very active, socially engaged young person.

She loves writing and telling stories, going out, playing with friends and doing a variety of sports. She enjoys singing, dancing and playing piano. Prior to the pandemic, she attended weekly Russian classes. She loves animals and would like to be a veterinarian when she grows up”: Ibid . [ 209 ] Z.K.M. told her Advocate that she is much closer to her mother than to her father. She calls him by his given name.

It is Z.K.M.’s expectation that her father needs to make his home more “kid friendly” and that he needs to “pick up his game on holidays”: Ibid , at pp. 1 and 2. [ 210 ] Her Advocate reports that Z.K.M. is “…very aware of the conflict between her parents”. On occasion her father has sworn at her mother in her presence, which she found upsetting. She talked about the time that the police enforced parenting time in the following way: One time [my brother] would not go to [dads] and the police came and hurt [my brother]. That was scary.

So we started going to [dads] again: Ibid , at p. 2. [ 211 ] On the issue of relocation, her Advocate reports that Z.K.M.’s father told her that she is “never” going to move to PEI: Ibid . [ 212 ] Her Advocate reports that Z.K.M. wants to move to PEI, as it has a “super good vet school”. She expressed some nervousness about the move, but felt she would be “okay after a little while”. Ideally she feels it would be best if her father could move with the family to PEI.

If relocation is granted and her father does not want to move to PEI, then she suggests that they could have unlimited telephone calls, and that he could come to PEI whenever he wants: Ibid , at p. 3. [ 213 ] In her updated report, the Children’s Advocate reports that Z.K.M. “… continues to enjoy the time she spends with her mother”. They are engaged in a lot of activities including “girls’ night out”, reading stories, and playing with friends.

She describes her mother teaching her many things during the pandemic when school was being taught virtually: Exh. 42 at p. 1. [ 214 ] Z.K.M. told her Advocate that her father’s home is still “not kid friendly”. She describes having less freedom to play with friends. She describes her time with her father as “boring”. She describes that recently her brother and her father spent a whole weekend building a computer while she just “sat in the dark” by herself. “He treats [my brother] differently than he treats me”.

She misses her mother “so much” when she is with her father: Ibid , at pp. 1 and 2. [ 215 ] Z.K.M. told her Advocate that she had a wonderful vacation in PEI in August 2021. She describes the school that she would attend as “really nice” and the school yard as “huge”. She enjoyed going to the beaches on PEI and doing beach activities such as rowing a boat for the first time. She enjoyed playing with Lucy the dog and says, “I want to have a pet so bad!”: Ibid , at p. 2. [ 216 ] If the relocation to PEI is granted, Z.K.M. told her Advocate, “I will definitely show up for the parenting time with [dad]”.

She prefers that it not be more than a few weeks at a time, and that she would not have to miss school. She loves to travel, and would be okay with travelling on an airplane or in a car as long as she doesn’t get carsick. Christmas holidays could be split between her parents. She prefers to spend Christmas Day and Ukrainian Christmas with her mother: Ibid , at p. 3. [ 217 ] Z.K.M. told her Advocate that her mother makes all of the significant decisions for her regarding school and health care, and

attends all of her medical appointments. She wants her mother to continue to make those decisions. Her father should be permitted to know what decisions are being made, and to have access to all of her medical and school records: Ibid . [ 218 ] In her report dated July 9, 2021, the Children’s Advocate describes M.A.M. as a “mature, articulate twelve-year-old who will turn thirteen on [omitted for publication].

He has been interviewed many times over several months by the Child and Youth Legal Centre”. [ 219 ] He describes having a very close relationship with his sister, which is important to him. [ 220 ] M.A.M. reports that historically his father was “quick to anger”, and used corporal punishment to discipline him. Presently his father does not use physical punishment, and instead uses “grounding” as a form of discipline. [ 221 ] M.A.M. recalls that his parents separated when he was in grade four.

The court process “has been there for such a long time - that feels horrible”. [ 222 ] While he enjoys time with both his parents, he also described instances in which both his parents dragged the children into the legal conflict: For example, at one point in the court proceedings, his father started doing ‘family circle time’ where he would read the mom’s affidavits to the children and asked them to explain why their mom had written certain things. His dad told him that he and his sister are absolutely not moving to PEI: Ibid , at p. 5, His mother used to express how much she disliked his dad.

If he referred to his father as ‘Papa’ he said his mom felt betrayed. She use to talk about how great PEI is compared to how terrible Vancouver is. He indicates that she no longer does this: Ibid . [ 223 ] M.A.M. also reports to his Advocate that he did not like the police becoming involved in enforcing orders.

It is his opinion that the police should not “drag kids” to see their parents. [ 224 ] With respect to the prospect of relocating to PEI, M.A.M. told his Advocate that initially he was content to remain in Vancouver, but upon reflection he is of the opinion that a move to PEI would be best for his sister and his mother. [ 225 ] His Advocate reports that M.A.M. “has spent a great deal of time processing this decision. He is a thoughtful young man. He loves both parents. Their conflict, however, has weighed on him emotionally. He believes that his father could move to PEI too if he chose to do so.

He hopes that if the court allows the move, his father will also move, but is resigned to the fact that it is very unlikely that his father will do so. His father tells him that he hates PEI”: Ibid . [ 226 ] In her updated report, the Children’s Advocate reports that M.A.M. was not happy with a proposed change to the parenting schedule, and he spoke to both his parents to negotiate a different schedule. Both of his parents were agreeable to his proposed change.

He reports to his Advocate that he felt “empowered at having solved a scheduling problem on his own”: Exh. 43 at p. 2. [ 227 ] M.A.M. acknowledges that his sister is not very happy when she is at her father’s residence. He describes his sister spending most of her time sitting in a corner of her room watching what he is up to with his father. His sister has told him that she wishes to spend less time with their father. She wants to move to PEI and he “respects her position”: Ibid . [ 228 ] The Children’s Advocate reports in her updated report that M.A.M. wishes to be permitted to relocate to PEI.

He feels that that will be better for his mother and his sister. He enjoyed his vacation to PEI in 2021, and he “would like to try it out”: Ibid at p. 4. [ 229 ] At the end of her interview, his Advocate asked M.A.M. if there was “anything else important” that he wanted the court to know. He listed the following: • “Don’t separate me and [my sister]. I can spend time without her but do not separate us”; • “Mama should be my primary caregiver”; • “I know we have to have a base

schedule but I insist I have full flexibility”; and • “I want to go to PEI and try it out for a year. I know that if it doesn’t suit me, I could return to Vancouver the next year”: Ibid . VIII. LITIGATION HISTORY [ 230 ] On March 2, 2018, the Applicant applied for a “Without Notice” Interim Conduct Order pursuant to s. 64(1) of the FLA, prohibiting either of the parties from removing the children from the Lower Mainland without the prior written permission of the other guardian, or by further order of the court.

The Applicant was concerned that the Respondent would take the children back to Ukraine. [ 231 ] Pursuant to that Order, the Applicant served the Respondent with a copy of the Order, the Notice of Motion and supporting Affidavit, and a blank Reply Form shortly after 4:00 PM on March 7, 2018. [ 232 ] Prior to the commencement of this trial, a further eleven interim orders were pronounced by various judges of this Court, in response to applications relating to the children. [ 233 ] In March 2022, the Applicant requested that the Court meet with the children, as it was his opinion that M.A.M.’s views and preferences, in particular with respect to the possible relocation to PEI, ought to be canvassed.

[ 234 ] The Court met with the children on May 16, 2022.

M.A.M. came to the courthouse in person, while the Court met with Z.K.M. virtually as she was feeling slightly unwell. [ 235 ] Following the meeting with the children, the Court considered it to be in the best interests of the children that the Court rule on some of the legal issues, including the status of the relocation application by the Respondent. [ 236 ] On May 27, 2022, the Court made various findings, including a finding that “ currently ” it was not in the best interests of M.A.M. that he relocate to PEI: (Emphasis added). [ 237 ] The trial commenced on July 20, 2021.

It was scheduled to conclude on July 30, 2021. This was not to be. It concluded on July 29, 2022. More than thirty days of court time were required to complete this trial. [ 238 ] While these proceedings have been exhausting for both the Applicant and the Respondent, they have also, unfortunately, been psychologically exhausting for the children. Through no fault of their own, they find themselves to be the centrepiece in this bitter protracted litigation maelstrom. IX. ISSUES TO BE RESOLVED 1. Relocation A. Position of the Parties (

i) The Applicant [ 239 ] The Applicant is opposed to the children relocating to PEI with the Respondent. [ 240 ] The position of the Applicant on the relocation issue can be summarized as follows: • The Respondent’s proposed relocation is not made in good faith as required by s. 69(4)(a)(

i) of the FLA . • The Respondent’s proposed relocation is motivated by a desire to thwart the Applicant’s ability to have contact with the children. • The Respondent’s only connection to PEI is through her fiancé. • The Respondent has not provided reliable evidence that the relocation will enhance the general quality of life for the children. • The Respondent’s proposed parenting time

schedule (Exh. 21) is neither a reasonable nor a workable arrangement as required by s. 69(4)(a)(ii) of the FLA . • The proposed parenting time

schedule does not address what happens if either of the children refuses to return to Vancouver, particularly in the summertime when the weather in PEI is generally favourable. • The Respondent’s proposal that she would fly with the children to Vancouver and stay with friends is an unworkable arrangement, particularly as it relates to Z.K.M. • The modest financial means of the parties makes multiple flights between PEI and Vancouver unaffordable. [ 241 ] The Applicant has expressed concerns throughout the trial with respect to the views of the children. In considering the application of s. 37(2)(

b) in relation to this, he submits that: • M.A.M is old enough to have his views considered, but his sister is “still too young to make decisions for herself”. • The views of the children should be viewed with “caution as they have been subjected to alienation of their father in excess of four years”. • In the alternative, that the court should find that the Applicant’s bond with the children has been severely impaired by the conduct of the Respondent, resulting in the children being caught up in a “loyalty trap” for the last several years. • The children’s views as reported in the VCR and by their Advocate reflect beliefs held by the Respondent that place the Applicant in a negative light, in particular as they relate to financial support from the Applicant. • Z.K.M. believes that if they relocate to PEI, the Applicant can come and visit “whenever he wants and that they can talk on the telephone in the meantime.

There is no mention that they do not talk on the telephone now”: Written Submissions at para. 154. [ 242 ] The Applicant addressed the impact of relocation of the children on his ability to exercise his responsibilities to them as their guardian, as required by s. 37(2)(f). He submits that: • The Respondent’s behaviour before and after separation demonstrates that she is unable to co-parent.

• If relocation is ordered, the Respondent will not involve the Applicant in the lives of the children, and any recourse for the Applicant would be costly. • Z.K.M.’s reluctance to spend time with the Applicant would become more challenging to manage in a long-distance relationship. • If Z.K.M. refuses to return to Vancouver to visit the Applicant, it would impair the development of any meaningful relationship between them. • Even if the Applicant travels to PEI, there is no guarantee that Z.K.M. will want to spend time with him without third-party intervention. [ 243 ] The Applicant submits that, pursuant to s. 37(1) of the FLA, the sole consideration in establishing parenting time is what is in the best interests of the children.

He submits that spending more time with him is in their best interests. (ii) The Respondent [ 244 ] The Respondent submits that the proposed relocation to PEI is being made in good faith. It is her intention to live with her fiancé in a comfortable and well-appointed residence in Charlottetown. [ 245 ] She will be able to secure a position as a substitute teacher in the public school system in PEI.

She notes that PEI is the only province in Canada where she can obtain a teaching certificate without a Bachelor’s Degree. [ 246 ] She submits that it is in the best interests of the children that she have social and financial stability. She testified that her subsidized housing at UBC will shortly be unavailable. The cost of living in PEI is significantly less than the cost of living generally in British Columbia, and in particular in Vancouver. [ 247 ] There is a growing Ukrainian community in PEI which will be of benefit to the cultural identity of the children.

There is also an Eastern Orthodox Church that the children can attend with their mother. [ 248 ] She submits that the best interests of the children are paramount, and that the factors contained in s. 37(2), on balance, favour relocation to PEI. [ 249 ] In her written submissions, the Respondent details the s. 37(2) factors that would, on balance, favour her relocation to PEI with the children. Some of the relevant factors can be summarized as follows: • The Respondent has been the primary caregiver for the children.

It is in their best interests that she continue to be their primary caregiver to ensure that their health, care and emotional well-being are maintained. • The Applicant was opposed to the VCR and the appointment of the Children’s Advocate. He elected not to participate in the VCR. The views of the children must be considered. The children support a relocation to PEI. • The children, and in particular M.A.M., have an ongoing relationship with the Applicant. Historically they had a close relationship with their Baba.

She is now deceased. • Given their age and stage of development, the children’s need for stability can best be met by maintaining their primary residence with the Respondent. She has been resourceful in finding suitable housing after separation, as the Applicant refused to leave the family home.

She has planned their futures, advocated for them based on their needs, and maintained their medical health. • The Applicant and the Respondent, as guardians, will be able to exercise their parenting responsibilities to the best of their ability. • The Respondent has been subjected to family violence during the course of the relationship, including being physically harmed when she broke a finger during an altercation with the Applicant.

The Applicant “set up” conflict situations that were designed to prompt a reaction from the Respondent. [ 250 ] The Respondent submits that she will encourage the children to travel to see the Applicant when he is exercising his parenting time. This would include her travelling with the children to and from PEI.

The Respondent has proposed that the parties share travel expenses for the children, and that she will be responsible for her own travel expenses. (iii) The Children’s Advocate [ 251 ] In both her written and oral submissions, the Children’s Advocate emphasizes that the views of the children should form the “bones” of this Court’s order with respect to relocation. [ 252 ] She submits that it is clear from the evidence of both the Applicant and the Respondent that after Z.K.M. was born, the marriage unravelled.

Both of the parties were engaged in significant conflict that more often than not occurred when the children were both present. [ 253 ] The Children’s Advocate is critical of both parents in their interactions with each other both prior to and after separation. Their interactions have not been beneficial to the children. [ 254 ] She notes that both parents are openly disdainful of each other, they do not follow court orders, and they have been openly adversarial during court proceedings. She does not believe that the parents will be able to cooperate in co-parenting the children in the

future. [255] She was critical of the Applicant’s resort to police involvement to enforce parenting time orders that created added conflict,resulting in the children being traumatized. Both children vividly remember those unhappy experiences. [256] She is highly critical of the Applicant’s decision in 2016 to surreptitiously record various encounters with his family. She submitsthat these surreptitious recordings were both intrusive and offensive to the children.

The Applicant submitted these recordings to theMCFD in an effort to undermine the Respondent. [257] She submits that the court should give little weight to the recorded conversations, as the Applicant controlled the recordingdevice and its on/off switch. [258] She submits that both children have been very clear that they want their views to be heard by the court, and wish to be included inthe decision-making about their futures. Their Advocate submits that is “their right”. It is an important part of determining what is intheir best interests: Young v.

Young (SCC), [1993] SCJ 112 at para. 82 (“Young”) and Article 3(1) of the UN Conventionof the Rights of the Child applied S.S. v.

R.S. 2021 ONSC 2137 at paras. 31 and 32 (“S.S.”). [259] The Applicant’s opposition to her appointment as the Children’s Advocate and his initial opposition to the Court meeting with thechildren are indicative of his attempts to thwart the children’s views being heard by the Court. [260] The Children’s Advocate submits that, as a principle of law, it is important that the views of the children are not only heard, butthey know “that their views are heard and considered by the adults in their lives”: S.S. at paras. 27 and 28 applied E.K. v.

K.C.,Unreported Decision, Richmond, File 6937, October 8, 2021 at para. 76. [261] She submits that the evidence establishes that: • The children have not been manipulated by the Respondent. • There is no indication that the children “parrot” the Respondent’s

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