B.M.G. v. S.J.S., 2018 BCSC 967

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: B.M.G. v. S.J.S., 2018 BCSC 967 Date: 20180613 Docket: E170658 Registry: Vancouver Between: B.M.G. Claimant And S.J.S. Respondent Before: The Honourable Mr. Justice Skolrood Reasons for Judgment Counsel for the Claimant: C.J. Wong Counsel for the Respondent: C.P. Amundsen Place and Date of Trial/Hearing: Vancouver, B.C. January 29-31, 2018 February 1, 2018 April 27, 2018 Place and Date of Judgment: Vancouver, B.C.

June 13, 2018 Introduction [ 1 ] This is a family law matter in which the principal issue in dispute is the respondent mother’s desire to relocate the two children of the marriage from Vancouver to Portland, Oregon. The claimant father opposes that move. [ 2 ] Other issues include child and spousal support and the division of family property and debt. [ 3 ] The parties both consent to the granting of a divorce, however the trial took place less than one year from the date of separation set out in the notice of family Claim.

The clam for a divorce is therefore adjourned generally. [ 4 ] In order to protect the privacy and well-being of the parties’ children, I have identified the parties by their initials in the style of cause and have referred to the children by their initials throughout these Reasons.

Preliminary Point [ 5 ] Before turning to the background facts, it is useful to first comment on the manner in which this trial was conducted. [ 6 ] The parties desired an early trial date in order to resolve the relocation issue as that issue impacts the ability of both parents to make plans going forward, including school plans for the children and their own employment plans.

Counsel were able to secure a five- day trial date beginning January 29, 2018 and I am told that a longer trial would have resulted in a much later trial date. [ 7 ] In order to ensure that the trial could complete within five days, counsel proposed that the direct evidence of all witnesses, including the parties, would be by affidavit and that each counsel would advise the other as to which witnesses would be required to attend for cross-examination. There is also a s. 211 report prepared by Dr.

Elterman and it was proposed that he also attend for cross- examination. [ 8 ] This proposal was advanced at a trial management conference held on October 4, 2017. The proposal was accepted by the judge presiding at the trial management conference and an order pursuant to Rule 14-3 (9)(

h) of the Supreme Court Family Rules was made. [ 9 ] I pause here to note that counsel for both parties were very cooperative and worked together to ensure that the trial proceeded

in an efficient manner. In addition to agreeing on the manner of trial, counsel also agreed on a joint brief of documents and on a

schedule for exchanging written submissions. Counsel are to be commended for their cooperative approach. [ 10 ] That said, the trial process gave rise to certain difficulties. First, and foremost, by having the parties’ direct evidence provided largely through affidavits, the court was deprived of the opportunity to hear from the parties in their own words on the key issues.

Affidavits, typically drafted with the assistance of counsel, are no substitute for direct, vive voce evidence from the parents involved in disputes about children, particularly disputes involving difficult issues like relocation, and cross- examination does not necessarily draw out that perspective.

Here, it would have been very helpful to hear directly from the respondent her reasons for wanting to relocate, and from the claimant, his reasons for opposing the move. [ 11 ] Second, as is unfortunately all too common in family law litigation, the affidavits of the parties are replete with inadmissible argument and opinion, much of which is aimed at assailing the actions and character of the other party, and are largely self-serving.

In a conventional trial, the court can avoid these difficulties by limiting the evidence to that which is relevant, admissible and probative of matters actually in issue. [ 12 ] In Hellberg v. Netherclift , 2017 BCCA 363 , the Court of Appeal commented on the difficulties that can arise when custody and mobility issues are addressed on a

summary trial. While not foreclosing on the appropriateness of a

summary trial for all mobility issues, the Court said at para. 100: In retrospect, it is our view that this case ought to have been referred to the trial list pursuant to Rules 11-3(15) and (17) of the SCFR . The resolution of custody and mobility applications on an incomplete record entails a number of risks. Chief among them is that a final order may be made uninformed by significant evidence that would likely have emerged in a conventional trial. Once made and entered, that final order can only be varied upon demonstration of a material change in circumstances.

Given what is at stake in applications of this kind, particularly those involving international relocation from Canada, the parties must take steps to ensure that the record thoroughly addresses the relevant factors. [ 13 ] This case was not brought as a

summary trial but was more in the nature of a hybrid trial, with some affidavit evidence and some vive voce evidence. Nonetheless, the concerns expressed by the Court of Appeal apply with equal force. [ 14 ] Going forward, one approach that might allow parties to achieve at least some of the desired efficiencies would be to have the parents give vive voce evidence with the evidence of corollary witnesses given by way of affidavits, subject to cross-examination. Again, this approach reflects the fact that the most important witnesses in cases involving the best interests of the children are most often the parents. [ 15 ] This is not to say that a

summary trial will never be appropriate in a case of this nature, however given the stakes involved, as noted by the Court of Appeal in Hellberg , where final orders are sought concerning parenting arrangements, including the residence of the children, a trial procedure that allows for direct testimony from the parents and other central witnesses will be preferred.

Background [ 16 ] I will provide a general overview of the background facts and then will deal with the evidence in greater detail as required when addressing the various issues that arise. [ 17 ] The parties are both American citizens who met in Seattle in 2003. The claimant is originally from Delaware and the Respondent from Portland, Oregon. [ 18 ] Both parties are well educated and work in academia. [ 19 ] The Respondent moved to Vancouver in August 2006 in order to pursue her doctorate degree at the University of British Columbia (“UBC”) in Youth Studies. The claimant moved to Vancouver in July 2007.

The parties were married in Vancouver on August 22, 2007. [ 20 ] The parties have two children, both boys: M born September 26, 2008 and Z born November 23, 2011. M is currently in grade four and Z is in grade one. [ 21 ] Both parties acknowledge that M has a learning disability for which he receives some specialized educational assistance. I raise this point because it factors into both parties’ positions on the relocation issue. [ 22 ] Initially, when the claimant came to Vancouver, he taught film production at Pacific Cinematique.

Starting in September 2008, he obtained a teaching position in the English department at Capilano University (then known as Capilano College). He remains in that position, earning approximately $90,000 per year. [ 23 ] The respondent completed her doctorate in 2012 and in January 2013 she began teaching as an adjunct professor in the Sociology department at UBC. She was laid off from that position in January 2016.

She then found part-time employment doing research at BC Children’s Hospital from July 2016 to the end of the year. [ 24 ] In October 2016, the respondent obtained a contract teaching position at Portland State University (“PSU”) for two ten-week terms beginning in January 2017. She began commuting between Portland and Vancouver. She typically drove from Vancouver to Portland on Sundays, returning Wednesday evenings. While in Portland, she stayed in an apartment she rented. [ 25 ] In February 2017, the claimant advised the respondent that he wished to separate.

As is typical of the claimant’s approach to communicating with the respondent, he did so by email. Initially, the claimant remained in the family home as did the respondent when she returned from Portland each week. In April 2017, the claimant found a three bedroom apartment in the same neighborhood as the

former family home. The respondent stayed in the house until June 2017, when the lease expired. She then found a rental apartment where she continues to reside and exercise her parenting time while in Vancouver. [ 26 ] During the summer of 2017, the parties maintained a roughly equal week on/week off

schedule with the children. The respondent was in Vancouver but often travelled to Portland with the children during her parenting time. The summer parenting

schedule was agreed to at a mediation held in June 2017. That mediation also resulted in an agreement whereby the claimant pays the respondent $860 per month in child support. [ 27 ] In August 2017, the respondent obtained a full-time teaching position at the Honors College at PSU. It is also contract position that runs through until June 2018.

According to the respondent, PSU has applied for funding to continue the position but as of the time of trial, the claimant had no firm employment past the end of June 2018. [ 28 ] Both parties filed affidavits from various friends and family members, all of whom attest to the parenting qualities of each of the parties. It is not necessary to review these affidavits in detail because there is no issue that both parties are loving and capable parents.

This is reflected in the fact that since separation they have, by agreement, had a roughly equal shared parenting arrangement and both are agreeable to that continuing, depending upon resolution of the relocation issue. [ 29 ] I will make one observation about the evidence of these corollary witnesses. Such evidence can be helpful when it is confined to facts and observations within the personal knowledge of the witness or affiant. It is less helpful when it strays into the area of opinion and argument, which is the case with many of the affiants here. [ 30 ] The parties jointly retained Dr.

Michael Elterman to prepare a report pursuant to s. 211 of the Family Law Act , S.B.C. 2011, c. 25 [ FLA ]. In his report dated November 30, 2017, he made the following recommendations: In formulating a recommendation it is clear that both parents love the children and are motivated to spend as much time with them as possible. The children are firmly attached to both parents but since neither parent is willing to live so that they can be in the same community, unfortunately the boys will have to be in one place or the other.

Obviously it would be better if the parents lived close enough to each other that they could go easily between them. The parents are joint guardians and in relation to the rights associated with guardianship, have equal status. It would be my recommendation, however, that the primary residence of the children remain with [B.M.G.] in Vancouver.

I think that the reasons for this are that this is what the children would both prefer and it certainly provides continuity and stability from the past in relation to their school, friends and activities…I also don’t think that it is desirable to have the children witness a lot of arguing between family members as something that is instructive or desirable…I would recommend that the primary day-to-day parenting responsibility be with [B.M.G.] in relation to the children’s school and health care.

I would recommend, however, that he have an obligation to consult with [S.J.S.] and solicit her input when any decisions need to be made that are substantive. This has previously been described as the Joyce Model. Finally, I think that the children should spend as much time as practical with [S.J.S.] when she is available…. [ 31 ] The respondent takes issue with Dr. Elterman’s report on a number of grounds, most notably that his recommendation is based on the premise that neither party is prepared to move.

However, both parties testified that they would in fact move to the city in which the children reside, be that Vancouver or Portland. Dr. Elterman agreed in cross-examination that if the parties were to live in the same city, then they should have equal and shared parenting time. [ 32 ] Dealing briefly with financial issues, it is clear that finances were a source of friction for the parties throughout their marriage.

While their general approach was to share equally in family expenses, in practice the claimant often paid more as a result of the respondent’s employment situation. [ 33 ] Each party accuses the other of behaving badly in respect of family finances. Given the nature of the contradictory evidence, and the fact that the parties have agreed on most issues of property division, I need not resolve these various allegations. [ 34 ] There are two aspects of the family finances that I will touch on.

One is that the claimant acknowledges that, without telling the respondent, he used $60,000 (USD) in family funds to pay off his pre-marriage student loans and to make an investment in his own name. [ 35 ] The respondent acknowledges that she used $70,000 (USD) to invest in a company called Columbia Point Hospitality LLC (“Columbia Point”) that was intending to build a hotel in Washington State. According to the respondent, her share in the investment cost $250,000 (USD) and the balance of the investment over and above her $70,000 was secured through a loan from her sister.

The respondent produced a loan agreement dated June 18, 2015 to this effect and she testified that the $180,000 debt remains outstanding. I will address this investment in greater detail below. Legal Framework [ 36 ] The parties agree that the relocation issue falls to be determined under s. 16 of the Divorce Act, R.S.C. 1985, c. 3 (2 nd Supp) which provides as follows: Order for custody 16

(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage. …

(6) The court may make an order under this

section for a definite or indefinite period or until the happening of a specified event and may

impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

(7) Without limiting the generality of subsection (6), the court may include in an order under this

section a term requiring any personwho has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty daysbefore the change or within such other period before the change as the court may specify, any person who is granted access to that childof the change, the time at which the change will be made and the new place of residence of the child.

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

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

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as muchcontact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration thewillingness of the person for whom custody is sought to facilitate such contact. [37] The leading authority on the principles governing custody and mobility under s. 16 continues to be the Supreme Court ofCanada decision in Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27 [Gordon], where Madam Justice McLachlin (as shethen was) summarized the governing principles as follows: [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 are entitledto great respect. 5. Each case turns on its own unique circumstances.

The only issue is the best interest of the child in the particular circumstances of thecase. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia: (

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

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

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

d) the views of the child; (

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

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

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [50] In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new locationmust be weighed against the continuance of full contact with the child's access parent, its extended family and its community. Theultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? [38] Gordon involved an application to vary an existing custody order.

However, our Court of Appeal has made it clear that theGordon analysis will also apply to an initial custody application, subject to certain modifications. In this regard, in Nunweiler v.Nunweiler, 2000 BCCA 300 [Nunweiler], Madam Justice Saunders stated: [28] The significance of the reasoning in Gordon v. Goertz in an initial determination of custody is, I consider, three-fold. First, thedecision directs the court to consider the motive for a parent's relocation only in the context of assessing the parent's ability to meet theneeds of the child.

This, in my view, is as relevant a direction on an initial custody hearing as on a variation hearing. Second, the decisionconfirms the significance of the instruction, found in s. 16(10), to consider the willingness of a parent to facilitate contact, but notes thatthis consideration is subordinate to over-all consideration of the best interests of the child.

Third, and more broadly, it approaches theissue of a relocation of residence from a perspective of respect for a parent's decision to live and work where he or she chooses, barringan improper motive. [39] Madam Justice Saunders’ comments have been endorsed by the Court of Appeal in numerous subsequent decisions, includingFalvai v. Falvai, 2008 BCCA 503 [Falvai] at para. 24; and Hejzlar v. Mitchell-Hejzlar, 2011 BCCA 230 at para. 22.

[ 40 ] In Falvai , Madam Justice Smith, after citing the above passage, said: [25] This analysis does not create a “two-step” analysis as was undertaken by the trial judge. Nor does it change the conventional approach to determining custody on an initial application, which requires a balancing of all relevant factors, including a parent’s proposed move with the child to a new community, in deciding what is in the child’s best interests.

Rather, in the context of an initial application, Nunweiler applied a “blended” analysis considering some of the factors identified in Gordon . [ 41 ] Madam Justice Smith went on to describe the analysis emanating from Gordon, as modified by Nunweiler, in these terms: [27] In considering the application of Gordon to an initial application for custody, Saunders J.A. modified the analysis by limiting the application of the Gordon factors to those relevant to an initial custody application where one parent proposes relocating.

In so doing, the Court considered the following factors from Gordon as being relevant to an initial application: (

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. [28] In Nunweiler , the Court balanced those modified factors with other relevant considerations, including the trial judge’s findings that it was in the child’s best interest to spend most of her time with the mother who had been her primary caregiver, and the mother’s lack of improper motive for wanting to relocate the child from the community in which the child’s father resided.

In the result, the Court concluded that the mother should have sole custody of the child without geographic restriction, but continue to share guardianship of the child with the father. [ 42 ] Recently, in T.K. v. R.J.H.A., 2015 BCCA 8 [ T.K. ], Madam Justice Smith added a further modification to the Gordon factors, specifically with respect to the extent to which a parent’s reasons for moving may be considered: [50] Paragraph 49(7)(

e) of Gordon v. Goertz restricting consideration of “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” [emphasis added] has proven to be challenging in its application. [51] In a variation application, there has been a pre-existing determination that one parent is best suited to satisfy the needs of the children (i.e., the custodial parent).

In that circumstance, it is understandable that the “fresh inquiry” into the children’s best interests must be “based on the findings of the judge who made the previous order and evidence of the new circumstances” ( Gordon v. Goertz at para. 49 (3)).

It follows that while there is no legal presumption in favour of the views of the custodial parent, his or her decision to live and work where he or she chooses is entitled to respect, barring an improper motive for the move or any other evidence that may reflect adversely on his or her parenting ability, because that custodial parent has previously been found to be the parent who is best able to provide for the children’s needs. [52] However, in the context of an initial custody and relocation application there has been no previous determination that one or the other parent is best able to meet the needs of the children.

Accordingly, the modification of the test in Gordon v. Goertz , in my view, needs to include a modification of para. 49(7)(e). In an initial application, it seems to me that the reasons for a parent’s proposed move are relevant to the issue of whether the proposed move will meet the needs of the children or affect (positively or negatively) on that parent’s ability to meet the children’s needs.

As the children’s best interests is the “only issue” in the blended analysis, all relevant circumstances that relate to the children’s needs and each parent’s ability to satisfy those needs must be considered. [ 43 ] In S.S.L. v. J.W.W ., 2010 BCCA 55 , the Court of Appeal set out the “four scenario” analysis to be applied in mobility cases.

In the context of the present case, that analysis requires consideration of four different parenting arrangements: primary residence with the claimant in Vancouver, primary residence with the respondent in Portland, shared parenting in Vancouver and shared parenting in Portland. [ 44 ] Given the evidence of the parties that they will move to whichever city in which the children reside, both agree that it is really only the two shared parenting scenarios that are in issue. [ 45 ] Section 16(8) of the Divorce Act Stipulates that a court must consider “only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child”.

As previously cited at paragraph 37 of these Reasons, Gordon sets out additional factors that will inform the “best interests” analysis (at paras. 49-50). [ 46 ] The case law also makes it clear that the factors set out in s. 37(2) of the FLA , which also deal with the best interests of the child, are relevant in relocation cases. Those factors include the following: (

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. Discussion [ 47 ] Before dealing with the various issues that arise, I will return briefly to the evidence as well as to the question of credibility. As I noted above, the affidavits of the parties, as well as those submitted by many of the corollary witnesses, are replete with argument and opinion, as well as hearsay.

At my request, counsel included with their written submissions charts setting out their objections to the various affidavits or portions thereof. [ 48 ] In their affidavits, the parties give differing versions of events that occurred both during their marriage and after separation. As I also noted above, both go to some length to disparage the other. [ 49 ] I do not propose to deal at any length with the objections to the affidavits nor is it necessary for me to resolve the disputes in the evidence.

This is because both parties agree that they should share parenting equally, the only issue being where that will occur. Implicit in this agreement is that, despite the nasty things they have to say about one another, both acknowledge that the other is a capable parent. This is reflected in the fact that they have co-parented on a roughly equal basis since separation. [ 50 ] A similar observation may be made about the challenges advanced by the parties, particularly the claimant, to the other’s credibility. Frankly, there were problems with the evidence of both parties.

For example, both sought to minimize their own role in the ongoing animosity between them and both tended to overstate the role of the other. Nonetheless, this is not a case in which it can be said that the evidence of one was significantly more credible or reliable than the other.

In any event, as noted above, given the parties’ agreement about equal parenting, it is not necessary to resolve many of the factual disputes. [ 51 ] It is worth noting one other theme that emerges quite clearly from the evidence, that being the difficulty the parties have had communicating with one another during the marriage and since separation. They communicate extensively by email and/or text and their exchanges have often degenerated into angry arguments about money and parenting issues.

It should go without saying that they need to learn to communicate in a respectful manner so as to avoid visiting their tension and acrimony on the heads of the children.

Relocation [ 52 ] On this, the central issue in dispute, it is again important to note that both parties have stated that they will move to where the children are living and, assuming that occurs, both agree to equal shared parenting. [ 53 ] In terms of where that will occur, the respondent submits that it is in the best interests of the children that they relocate to Portland whereas the claimant submits that their interests are best served by remaining in Vancouver. [ 54 ] I will address the evidence and the parties’ arguments in more detail when I consider the various factors that inform the relocation analysis.

Before doing so however, it is useful to review briefly the cases relied on by the parties in support of their positions. [ 55 ] The respondent cites three principal authorities:

a) Melnychuk v. Balfour , 2016 BCSC 330 - The mother sought to relocate from Golden to Cranbrook, BC with the parties’ five year old son. Her proposed move was so that she could pursue a better career opportunity. The parties had a roughly equal parenting arrangement in Golden but the father spent considerable time away working in Alberta and, according the Court’s finding, his material nexus to Golden was not strong. Mr.

Justice McEwan found at paras. 60-61 that this was an exceptional case in which the mother’s reason for moving was relevant and that her increased earning potential in Cranbrook would provide a far better standard of living and an enhanced ability to meet the child’s needs. He therefore permitted the relocation (in the sense that he dismissed the father’s application for an order requiring that the child be returned to Golden, the mother having already made the move);

b) A.J.A. v. F.M.A. , 2016 BCSC 1613 - The mother sought to relocate with the parties’ eight year old daughter from Fraser Lake to Fort St. John., BC where her new partner resides. Mr. Justice Verhoeven concluded at para. 99 that the relocation would better enable the mother to meet the needs of the child given her new relationship, which may not endure if she did not move, and the enhanced employment opportunities and community services available in Fort St. John;

c) Cannon v. Cannon , 2017 BCSC 1462 - The mother sought to relocate from Salmon Arm to Surrey, BC with the parties’ two children, ages six and four, one of whom has autism spectrum disorder and attention deficit hyperactivity disorder. The mother had re-partnered and her new partner, with whom she was expecting a child, resided in Surrey. While finding that the factors were fairly evenly balanced, Mr. Justice Marchand permitted the mother to relocate with the children because it would allow the child with learning challenges to

attend a specialized school and there would be stable family environment for the children, including with the expected younger sibling: para. 77. [ 56 ] For his part, the claimant relies on the following cases:

a) Todd v. Todd , 2016 BCSC 243 - The parties in this case were both from Ontario but moved to Squamish, BC. When the marriage broke down, the mother wished to relocate back to Ontario with the parties’ four year old daughter. The mother proposed that she and the child could live with her parents in Ontario while she went to school in order to improve her employment prospects. The father was opposed to moving as he had developed a successful real estate business in BC.

After considering the relevant factors, Madam Justice Ross concluded at para. 93 that a relocation to Ontario was not in the child’s best interests. It was not practical for the father to move and while the child would have more contact with her extended family in Ontario, it would be at the expense of a significant disruption in her relationship with her father. Further, the training that the mother wished to pursue was available in BC;

b) T.K. v. R.J.H.A ., 2013 BCSC 2112 - the mother sought to relocate from Victoria to Toronto with the parties’ two children, ages seven and nine. The mother’s principal reasons for wishing to move with the children were that they would benefit from more contact with the mother’s immediate family, would lean of their Chinese heritage on the mother’s side and the mother’s better employment prospects. Mr. Justice Verhoeven found at para. 123 that the benefits of the move to the children were “modest and debateable” and that the factors relating to disruption and the parties’ financial prospects favoured Victoria. He therefore denied the relocation application;

c) D.J.D. v. M.L.D ., 2016 BCSC 1515 - the mother sought to relocate from the lower mainland of BC to Bolton, Ontario with the parties’ three children, ages eight, 10 and 12. After separation, the parties maintained an equal parenting arrangement. In 2011, the mother moved her employment base to Ontario and then commuted to BC to exercise her alternate weeks of parenting time. The mother had re-partnered and her new partner lived in Ontario.

Madam Justice Dardi concluded at para. 143 that the proposed move was not in the children’s best interest given the significant disruption it would cause and the father’s ability to provide them with a stable and secure home and routine in BC. [ 57 ] Reviewing other decisions can be helpful in seeing how the courts have dealt with the difficult issues that arise in cases of this nature, however, each case turns on its own facts and the application of the relevant factors to those facts. [ 58 ] In my view, the important factors to consider in this case, taken from Gordon as informed by s. 37(2) of the FLA , are the following:

a) Existing arrangements and the relationship between the children and the parties;

b) Desirability of maximizing contact between the children and both parents;

c) The views of the children;

d) Disruption to the children from any change in custody and on removal from family, schools and the community they have come to know; and

e) Careers and financial concerns. Existing Arrangements and Child/Parent Relationships [ 59 ] As discussed above, the parties have shared parenting largely on an equal basis since separation. They have done so by agreement rather than pursuant to a court order. This despite some occasional tension with respect to scheduling issues.

They both agree that this arrangement should continue going forward. [ 60 ] Moreover, while it may be that the respondent had more involvement in the day to day scheduling of the children’s activities in their early years, due to the parties’ different employment obligations, I am satisfied on the evidence that both parties have been active and engaged parents in their children’s lives. I note as well Dr.

Elterman’s observations that “both parents love their children” and that “the children are firmly attached to both parents”. [ 61 ] There is no reason to believe that these attachments will not remain strong, whether the children live in Vancouver or in Portland. Maximizing Contact with Both Parents [ 62 ] The respondent alleges that the claimant has acted in a bullying and harassing manner towards her and has consistently made unilateral decisions about money and about parenting issues.

She submits that if the children remain in Vancouver, he will continue to do so and will restrict her parenting time with the children whereas relocation to Portland will put them on a more equal footing. [ 63 ] The claimant denies that he has harassed or bullied the respondent and that his communications with her are concerned with securing information about the children and attempting to co-parent.

He alleges that the respondent has equally been obstructive concerning his parenting time. [ 64 ] As I observed above, the parties have had difficulty communicating with one another both during the marriage and since separation. Despite these difficulties they have, on the whole, been able to co-parent the children and I am satisfied that they will continue to be able to do so, again regardless of where they are living. Views of the Children

[ 65 ] Dr. Elterman reports the children telling him that they would prefer to remain in Vancouver. This is not surprising since Vancouver has been their home since birth and although they have visited Portland many times, they do not consider it to be “home”. There is also the fact that the claimant kept the vast majority of the children’s clothing, toys and books on separation.

As submitted by the respondent, it is not surprising that the children would express a preference for the location in which their “things” are located. [ 66 ] For these reasons, the views of the children should not be given too much weight, although their stated preference does indicate a sense of comfort and stability in Vancouver which is relevant to the next factor considered below. Disruption to the Children from a Potential Move [ 67 ] The respondent submits that there will be little or no disruption to the children from a move to Portland. Given their agreement about equal parenting, the children’s

schedule with each parent will remain relatively unchanged. While the move will involve a change in schools, the respondent notes that M recently had to change schools in Vancouver, from an annex to the main school, and Z will have to do the same. Further, the respondent has identified a school in Portland that provides a strong learning environment and that has resources to support M’s learning challenges.

The respondent also submits that in Portland both she and the children will have the support of her extended family. [ 68 ] The claimant submits that a move to Portland will be significantly disruptive for the children, particularly M who both parties acknowledge has had difficulty in the past dealing with change. With respect to M’s learning challenges, the claimant notes that he has a support team in place, including teachers and psychologists who prepare an annual individualized education plan (“IEP”) for him.

According to the claimant, M has shown improvements over the last couple of years and he submits that to remove M from Vancouver would put his progress at risk. The claimant, and many of his corollary witnesses, also describe the neighborhood and community in which they live and the many friends and supports the children have. [ 69 ] In his report, Dr.

Elterman noted the “continuity and stability from the past in relation to their school, friends and activities” as a factor supporting his recommendation that the children stay in Vancouver. [ 70 ] In my view, based on the evidence as a whole, a move to Portland for the children would be disruptive for them. It would remove them from the community in which they have lived their entire lives thus far, which includes many friends and an extensive support network.

I am also satisfied that the proposed change would be detrimental to M in terms of his educational needs. [ 71 ] I acknowledge that in Portland, there would be the support of the respondent’s family and I have no doubt that Portland has good schools, however these factors do not outweigh the disruption the children will experience if compelled to move to Portland. Careers and Financial Concerns [ 72 ] This factor brings to the forefront the respondent’s reasons for moving to Portland which was for professional and employment reasons.

The respondent deposed that she applied for about 24 full-time academic positons in Canada and the US between 2012 and 2017 as well as numerous non-academic positions in the lower mainland. She was unsuccessful in finding a position, in large part due to the very narrow and specialized nature of her PhD.

Despite her difficulty in finding steady, remunerative employment, she says the claimant continued to pressure her to contribute financially to the family, which put her in a difficult position. [ 73 ] The respondent says that she applied for her current position at PSU in part because the claimant had agreed to move to Portland and because it allows her to work in her chosen field, something that would not be available to her in Vancouver.

She submits further that the claimant could obtain employment in Portland similar to what he currently has at Capilano University. [ 74 ] The claimant acknowledges that he and the respondent discussed moving to Portland but says there was no agreement to that effect and that, in any event, that idea was vitiated upon separation.

Further, the claimant submits the issue is moot because the sole consideration on a relocation application is the best interests of the children. [ 75 ] The claimant submits that he has a secure, well-paying position at Capilano University with sufficient seniority that he can tailor his teaching

schedule to permit him to spend more time with the children, including often dropping them off and picking them up from school. He submits that there is no evidence that he would be able to obtain a similar position in Portland, particularly given the fact that he does not have a PhD, and that, even if he could, it would mean a reduction in seniority and likely in salary. [ 76 ] The claimant submits further that the respondent would be able to obtain work in Vancouver, although it may not be in her chosen field given that she is intelligent and highly educated.

He notes that before obtaining her position at PSU, she was offered the job of “Employee Relations specialist-Job Equality and Social Inclusion” at a large Oregon dental group at a salary of $65,000 per year, a position she did not take. [ 77 ] The evidence of each party’s employment prospects if he or she moves is, at best, speculative. I am satisfied that the respondent experienced considerable difficulty finding employment in or around Vancouver, albeit her focus was relatively narrow given her specialized education.

It is difficult to say what other employment she might obtain if she returns to Vancouver and expands her search parameters. [ 78 ] With respect to the claimant, the respondent deposes that there are approximately ten colleges in or around Portland at which the claimant could obtain employment and, as well, she produced a list of job postings in Portland as of the summer of 2017 for which she says the respondent would be qualified.

Again, however, it is entirely speculative that the claimant would in fact qualify for a similar position or would be hired. [ 79 ] What is not speculative is that the claimant has a secure position at Capilano University with a good salary, seniority and considerable flexibility. It is this position that has allowed the claimant to provide a stable home environment for the children in Vancouver. It is not at all apparent that this could be replicated in Portland.

[ 80 ] There is also the fact that the respondent does not have guaranteed employment past June 2018 thus there is the distinct possibility that if relocation is permitted and the claimant moves to Portland to be near the children, which he says he will do, both parties will be unemployed for a period of time. Other Factors [ 81 ] The respondent again submits that she and the children will have the support of her extended family in Portland whereas n Vancouver, neither of the parties has family.

She also points to the fact that she is, through her parents, of Greek and Jewish heritage and she would like to be able to pass on that heritage to the children through family gatherings involving traditional food and customs. [ 82 ] With respect to the cultural heritage point, the claimant notes that the respondent took minimal steps to engage the children in Greek or Jewish activities or classes while in Vancouver. Moreover, he is open to the respondent travelling with the children to Portland to celebrate festivals and other cultural events with her family.

He submits that the claimant and the children can also maintain close contact with the respondent’s family by visiting with them frequently which they have done since the children’s birth. [ 83 ] In my view, neither of these factors is significant, particularly when weighed against the disruption to the children that will be caused by a move.

Conclusion on Relocation [ 84 ] Based on all of the evidence and the relevant factors, in particular the continuity and stability that comes from maintaining the children’s connections to their community and educational supports, as well as the financial stability emanating from the claimant’s ongoing employment at Capilano University, I conclude that it is in the children’s best interests for them to remain in Vancouver.

Custody, Guardianship and Parenting Time/Responsibilities [ 85 ] The parties agree that they will have joint custody under the Divorce Act and that both are guardians of the children pursuant to the FLA . [ 86 ] They further agree that they should share parenting responsibilities as set out in s. 41 of the FLA and that there should be equal parenting time, although they differ slightly on the proposed schedule. The principal point of dispute is that under the

schedule proposed by the respondent, the claimant would never have a Friday overnight whereas the respondent would always have Friday overnight then Friday and Saturday overnight every other weekend. [ 87 ] I agree with the claimant’s concern as well as his proposal for a simple 2-2-5-5 alternating week

schedule which will permit a more fair allocation of weekend time between the parents. I will set this

schedule out in more detail in the Conclusion

section below. [ 88 ] In terms of holiday time, the parties will share equally in parenting time during school Spring Break and the Winter/Christmas break, alternating Christmas Day. The respondent will have parenting time on Christmas Day even-numbered years and the claimant in odd-numbered years. The parties will have regular parenting time during the Summer Break, unless otherwise agreed by both parties by no later than June 1 of each year. [ 89 ] The respondent will have parenting time on Mother’s Day and the claimant on Father’s Day.

The respondent will have additional parenting time on Greek Orthodox Easter and American Thanksgiving, subject to the claimant having make-up time if those holidays fall during his scheduled parenting time. [ 90 ] Each party will have parenting time on the children’s birthday, to be agreed by the parties. If Z’s birthday falls on American Thanksgiving, any additional parenting time for the respondent as set out in the above paragraph, will be subject to the claimant being able to spend some time with Z on his birthday. [ 91 ] The parties agree to the appointment of a parenting coordinator.

The only point of disagreement is the term of the appointment. The claimant proposes a one-year term with the option for renewal whereas the respondent proposes a two-year term. [ 92 ] Given the difficulties the parties have had in communicating and the transitional issues that may arise on the respondent moving back to Vancouver, a two-year term is in order. Child Support [ 93 ] The parties agree that the claimant’s income for the purposes of determining child support is $88,250, which reflects his current salary less union dues.

They disagree however about what if any income should be imputed to the respondent. [ 94 ] In her current position at PSU, she earns approximately $57,000 however, given her evidence that she will return to Vancouver in the event that the children are not permitted to relocate, that figure does not reflect the income she will be able to earn here. [ 95 ] The claimant submits that income of $40,000 should be imputed to the respondent which is based on what she was able to earn as an adjunct professor at UBC. [ 96 ] The respondent submits that when she returns to Vancouver she will have no immediate employment and, as such, no income should be imputed to her.

Alternatively, she submits that a maximum of $15,000 should be imputed, which is based on the average of what she actually earned in Vancouver. [ 97 ] The respondent has a narrow field of specialization which explains in part the difficulty she has experienced in the past in

finding work in that field. It is unlikely that she will find a position in Vancouver similar to her current position at PSU. That said, she is highly educated and she has transferable skills and experience that mean she is likely to find remunerative employment of some kind. [ 98 ] In my view, the respondent’s alternative position of $15,000 imputed income is reasonable while she re-establishes herself in Vancouver and looks for suitable employment. [ 99 ] The parties agree that child support should be determined by way of a straight set off under s. 9 of the Federal Child Support Guidelines , SOR/97-175.

Using the above income figures, the claimant is required to pay $1,362 and the respondent $183, resulting in net child support payable by the claimant of $1,179 per month. This will be effective July 1,

Section 7 expenses (special and extraordinary expenses) will be shared in proportion to the parties’ incomes. [ 100 ] The claimant submits that he has been overpaying child support based on his income and the respondent’s income from PSU. He has been paying $860 per month by agreement but says that he should have been only paying $474 per month since September 2017 when the respondent commenced her work at PSU.

He seeks repayment of $3,088. [ 101 ] The claimant only raised the issue of an overpayment in his written submissions provided at trial, despite knowing of the respondent’s increased income starting in September 2017.

The amount that the claimant has been paying was agreed to by the parties and I am not satisfied that a repayment is warranted, particularly given the financial hardship the respondent is likely to face, at least in the near term, when she returns to Vancouver. [ 102 ] Child support will be reviewed within two months of the respondent obtaining employment in Vancouver and then annually as of July 1 of each year. The parties will exchange income tax returns and notices of assessment by May 31 of each year or as soon thereafter as available.

Spousal Support [ 103 ] The claimant disputes the respondent’s entitlement to spousal support on compensatory grounds but acknowledges there may be entitlement on a needs-basis when she returns to Vancouver.

He submits that spousal support should be payable for two years with a review after one year. [ 104 ] The claimant seeks child support at the high end of the range established under the Spousal Support Advisory Guidelines (“ SSAG ”) for a period of 4.5 years, although she agrees it should be subject to review upon her obtaining employment in Vancouver. [ 105 ] Using income figures of $88,250 for the claimant and $15,000 for the respondent results in a spousal support range of $988 at the low end, $1,242 in the mid range and $1,509 at the high end. [ 106 ] The respondent submits that she should receive spousal support at the high end of the range for a shorter duration as she transitions back to Vancouver as this will better enable her to search for proper employment.

The claimant submits that because the respondent has a weak compensatory claim and is a highly educated and intelligent person, spousal support should only be paid for two years, with a review after one year. [ 107 ] Spousal support at the high end would result in a roughly 54%-46% apportionment of family income in favour of the respondent. Given that the parties are likely to have similar expenses in maintaining a home for themselves and the children, such an unequal apportionment is unwarranted.

Spousal support will therefore be payable at the mid range amount of $1,242. [ 108 ] In terms of duration, the SSAG suggest a range of 4.5 years to 12 years. Given the history of the relationship and the respondent’s education, intelligence and obvious abilities, spousal support for the minimum duration is appropriate. [ 109 ] Spousal support will therefore be payable by the claimant to the respondent effective July 1, 2018 in the amount of $1,242 per month for a duration of 4.5 years.

Spousal support will be reviewable as to entitlement and quantum after two years, and as to quantum within two months of the respondent obtaining employment in Vancouver. Property Division [ 110 ] The parties agree on a number of aspects of property division. Specifically, they agree that each will retain the property and debt in his or her own name, subject to the following:

a) The claimant’s BC College Pension Plan will be divided equally based on a date of separation of March 2, 2017;

b) The parties’ accumulated Canada Pension Plan credits will be divided equally based on a separation date of March 2, 2017;

c) All jointly held accounts will be divided equally and closed with any tax liability to be shared equally;

d) The children’s RESP, which is currently registered in the sole name of the claimant, will be transferred into joint names and held for the sole benefit of the children; and

e) The children’s US 529 College Savings Plans will be transferred into joint names or, if that is not possible, each party will hold one account and the accounts will be held for the sole benefit of the children. [ 111 ] The central point of disagreement concerns the respondent’s investment in Columbia Point as well as the related issue of the parties’ respective use of certain family funds. [ 112 ] The claimant acknowledges that he used $60,000 (USD) in family funds to pay off his pre-marriage student loans and to put into

an investment in his own name. He acknowledges that the respondent is entitled to 50% of that amount or $30,000 (USD) in respect of those amounts. [ 113 ] For her part, the respondent acknowledges using $70,000 (USD) of family money to invest in Columbia Point and she acknowledges that the respondent is entitled to 50% of that amount or $35,000 (USD). [ 114 ] The respondent’s actual investment in Columbia Point was $250,000 (USD). She alleges that the balance of the investment cost - $180,000 (USD) - was loaned to her by her sister and that she remains indebted for that amount.

She does not seek payment from the claimant for any share of that debt but submits that the claimant is not entitled to any further interest in the investment beyond his one half share of the $70,000 (USD) in family money. [ 115 ] The claimant submits that the evidence of the alleged loan from the respondent’ sister is vague and weak and should not be accepted. He submits that the investment is worth $250,000 and that he is entitled to a 50% interest.

He seeks payment from the respondent of $130,000 (USD), comprising $125,000 (USD) for his interest in Columbia Point plus $5,000 (USD), being the difference between the respondent’s share in the family money he used for student loan repayment and investment and his $35,000 (USD) share in the family money used by the respondent for her initial investment in Columbia Point. [ 116 ] I agree that the evidence concerning the loan from the respondent’s sister is weak, however there was no evidence to contradict her claim.

It is apparent that the additional investment funds came from the respondent’s family, either in the form of a loan or a gift to her and there is no basis on which the claimant can assert an interest in the total investment, beyond his share of the $70,000 in family money put forward by the respondent. [ 117 ] I agree with the respondent’s position that a proper and fair division is that she will pay the claimant $5,000 (USD), being the difference between her 50% share of the $60,000 (USD) of family money the claimant used to pay his student loan and make an investment and his 50% share of the $70,000 (USD) in family money the respondent invested in Columbia Point.

Conclusion [ 118 ] In

summary, I make the following orders:

a) The application for a divorce is adjourned and the parties shall have liberty to apply pursuant to Rule 10 of the Supreme Court Family Rules ;

b) The children M and Z shall remain resident in Vancouver, BC;

c) Both parties are guardians of the children pursuant to s. 39 of the FLA ;

d) The parties have joint custody of the children pursuant to the Divorce Act ;

e) The parties shall share equally all of the parenting responsibilities set out in s. 41 of the FLA ;

f) A parenting coordinator will be appointed for a term of two years, with the cost to be shared equally by the parties;

g) Until such time as the respondent moves to Vancouver, parenting time will continue according to the current arrangement with the claimant having parenting time from Sunday at 11:00 a.m. to Thursday at 8:30 p.m. and the respondent shall have parenting time from Thursday at 8:30 p.m. to Sunday at 11:00 a.m. unless otherwise agreed to by the parties;

h) When the respondent moves to Vancouver, the parenting

schedule will be as follows (if there is no school on the scheduled exchange days, the exchange will be at 4:00 p.m.): Week 1 i. The respondent will have the children Sunday morning at 11:00 a.m. to Wednesday after school; ii. The claimant will have the children from Wednesday after school to the following Monday after school; Week 2 i. The respondent will have the children from Monday after school to Wednesday after school and from Friday after school to the following Wednesday after school; ii. The claimant will have the children from Sunday to Monday after school and from Wednesday after school to Friday after school;

i) The parties will have the following holiday parenting time:

i) the claimant will have parenting time on Father’s Day and the respondent will have parenting time on Mother’s Day; ii) the respondent will have parenting time on American Thanksgiving and on the Sunday of Greek Orthodox Easter; with the claimant to have make up parenting time to be agreed upon by the parties; iii) each party will have parenting time on the child’s birthday; iv) the parties will share Spring Break parenting equally, with each parent having one week;

v) the parties will equally share the Winter Break with each parent having one week, alternating the week with Christmas, with the respondent to have Christmas Day in years ending in even numbers and the claimant to have Christmas Day in years ending in odd numbers; vi) The parties will have regular parenting time in the Summer Break unless otherwise agreed by both parties in writing by June 1 of each year.

j) Each party will be at liberty to travel outside of Vancouver, BC during his or her parenting time if the children do not have school. The travelling parent will provide written notice at least 72 hours before any planned travel. The remaining parent will sign any necessary travel authorizations.

k) The claimant will pay the respondent $1,363 per month in child support and the respondent will pay the claimant $183 per month in child support. Child support will be reviewed within two months of the respondent obtaining employment in Vancouver and thereafter as of July 1 of each year. The parties will exchange income tax returns and notices of assessment by May 31 of each year or as soon thereafter as available.

l) The parties will share the children’s special and extraordinary expenses in proportion to their respective incomes;

m) The respondent will pay spousal support to the claimant in the amount of $1,242 per month effective July 1, 2018 for a duration of 4.5 years. Spousal support will be reviewable as to entitlement and quantum after two years, and as to quantum within two months of the respondent obtaining employment in Vancouver.

n) Each party will retain all property and debt in his or her own name with the following exceptions: i. The claimant’s BC College Pension Plan will be divided equally based on a date of separation of March 2, 2017; ii. The parties’ accumulated Canada Pension Plan credits will be divided equally based on a separation date of March 2, 2017; iii. All jointly held accounts will be divided equally and closed with any tax liability to be shared equally; iv.

The children’s RESP, which is currently registered in the sole name of the claimant, will be transferred into joint names and held for the sole benefit of the children; v. The children’s US 529 College Savings Plans will be transferred into joint names or, if that is not possible, each party will hold one account and the accounts will be held for the sole benefit of the children; and vi.

The respondent will pay the claimant the sum of $5,000 (USD). [ 119 ] My initial inclination is that success has largely been divided and that the parties should bear their own costs, however if the parties wish to speak to costs, they may make arrangements through Supreme Court Scheduling. “Skolrood J.”