2014 BCPC 82, 2014 BCPC 82

Citation: S.N. v. E.C. Date: 20140305 2014 BCPC 0082 F22790 Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.N. AND: E.C. OF THE HONOURABLE J.P. MacCARTHY

M.E. Plett E.C. Port Alberni, B.C. January 21, 22, 28 and 29, 2014 Date of Judgment: March 5, 2014 Introduction [ 1 ] S.N. (the “Mother”) and E.C. (the “Father”) are the biological parents of two Children, namely T.A.J. born August 10, 2007 (“T”) and K.S.J. born August 13, 2008 (“K”). The Mother and the Father separated in October of 2011 and have been before this Court on a number of occasions, on a host of issues, since April of 2012 and are therefore subject to a number of court orders. [ 2 ] The four matters subject of this most recent hearing before me are as follows:

a) The Father’s application seeking a final order to prohibit the relocation of T and K (collectively the “Children”) by the Mother from Tofino, B.C. to Penticton, B.C.

b) The Mother’s cross application seeking a final order permitting this relocation of the Children.

c) The Mother’s application for the Father to immediately pay arrears of child support and special expenses to the Mother in accordance with the existing orders relating to child support and special expenses.

d) The Mother’s application for an order pursuant to s 213 (2) and s 230(2) (

b) of the Family Law Act , S.B.C. 2011, c. 25 (the “ FLA ”) arising from the Father’s failure to comply with financial disclosure orders previously made pursuant to what is now s. 212 of the FLA. Background of Court Proceedings [ 3 ] The present orders in force are as follows:

a) following a first appearance on April 4, 2012 the matter was next before the court on April 18, 2012 at which time, according to the Court

Summary Sheet an interim order by consent set a

schedule for the Father’s access to the Children and provided as follows: “E.C. to continue to prepare financial documents.”

b) an interim without prejudice consent order made May 23, 2012 under the Family Relations Act (“FRA ”) granting the parents joint custody and joint guardianship of the Children, requiring the payment of child support by the Father of $1000 per month commencing June 1, 2012, requiring the Father to file his financial statement by July 20, 2012 and specifying the Father’s reasonable and generous access to the Children (the “May 23, 2012 Order”);

c) an interim FRA order made July 20, 2012 at a Family Case Conference redefining the Father’s access and setting a further Family Case Conference for Sept 21, 2012 (the “July 20, 2012 Order”);

d) an interim without prejudice FRA order made March 13, 2013 confirming joint custody, the Mother’s primary responsibility for day- to-day care of the Children subject to the requirements for her to notify and consult with the Father, reconfirming the child support payments of $1000 per month, further ordering the Father to pay one half of the total amount of daycare invoices for the Children within 30 days of delivery of the invoices by the Mother, redefining the Father’s access to the Children, making detailed orders with respect to the Father completing financial disclosure and providing specified documentation no later than April 30, 2013 (the “March 13, 2013 Order”);

e) an interim FLA order made July 12, 2013 prohibiting the Mother from relocating the Children from the Alberni Clayoquot Regional District unless with the Father’s written consent or by further or the court, imposing a penalty in the amount of $300 on the Father, payable within 90 days for the Father’s failure to file financial disclosure as previously ordered, and a further order for the Father to complete file and deliver to the Mother his financial disclosure in the correct form within 60 days of making of the order the “July 12, 2013 Order”). [ 4 ] This matter was scheduled for hearing on December 23, 2013 but due to a lack of court time it was unable to proceed to hearing until January 21, 2014.

Issues Before The Court With Respect to the Proposed Relocation of the Children

[ 5 ] The issues that must be decided are as follows:

a) whether the relocation of the Children is governed by

Part 4, Division 6 and specifically by

section 69 of the FLA or under

section 46 of FLA and in both cases whether the relocation is in the best interests of the Children as contemplated by section 37 (2) of the FLA.

b) if the parents do not have substantially equal parenting time whether or not the Mother has satisfied the requirements of section 69 (4) (

a) since that she can rely upon the presumption that the relocation is in the best interests of the Children as set out in section 69(4)(

b) and whether or not the Father has satisfied the court otherwise.

c) if the parents have substantially equal parenting time with the Children, whether the Mother pursuant to section 69 (5) (

a) has satisfied the requirements of section 69 (4) (

a) and satisfied the court that the relocation of the Children is in their best interest as contemplated by section 69 (5) (b).

d) whether the Mother has satisfied the court that the proposed relocation is made in good faith as required by section 69(4)(a)(

i) and pursuant to section 69(6) of the FLA .

e) whether the Father should be made subject to a further penalty pursuant to s 213(2)(

d) of the FLA for his alleged failure to make financial disclosure and be subject to further sanctions for his failure to pay child support as previously ordered by this Court. Relevant Provisions of the Family Law Act [ 6 ] For the benefit of the parties I have attached as Appendix A to these reasons the relevant provisions of the FLA to which I may make reference and rely upon in the course of my reasons. The Witnesses Who Provided Evidence [ 7 ] Viva voce evidence was provided by four witnesses.

Affidavits of each of the Mother and the Father were before the Court, but only to the extent of the admissible evidence contained within them. [ 8 ] The Mother testified on her own behalf, was questioned by the Court and cross-examined by the Father who acted on his own behalf. [ 9 ] The Father also testified on his own behalf, was questioned by the Court and cross-examined by counsel for the Mother. The Child Counsellor [ 10 ] Wendy Hogan was called as a witness by the Mother. Ms.

Hogan was qualified in these proceedings as an expert in child counselling; she has over the years contracted with the Ministry for Children and Family Development. [ 11 ] She testified in her capacity as the counsellor for the Children for the last 1 ½ years. That counselling was sought by the Mother to deal with the Children’s issues relating to the separation and to provide them with coping tools and strategies to deal with the separation and the conflict between their parents. [ 12 ] Wendy Hogan has had closer contact and a greater opportunity to speak with the Mother than with the Father.

Similarly she has had a greater opportunity to observe the Children with the Mother but has not had the same opportunity of engagement with the Father and his new partner, in the presence of the Children. The Father’s New Partner [ 13 ] J.B. is 39 years old, the new partner and the present common law spouse of the Father and also the parent of a daughter by a previous relationship, A age 6 ½. A is now considered the step-daughter of the Father.

The Father and J.B. are presently engaged to be married. [ 14 ] J.B. has cohabited with the Father since approximately February of 2012; they reside in a home having a value of approximately $559,000 for which she alone, rather than with the Father, holds the sole registered interest, apparently pursuant to a Right to Purchase under an Agreement for Sale. Her monthly payments for principal and interest under the Right to Purchase are approximately $2,331 per month. Also she testified as to the financial relationships between herself and the Father.

J.B. presently receives child support for A in the amount of $1200 per month and was receiving spousal support from A‘s Father, in the amount of $2,500 until July of 2013. [ 15 ] She holds a university degree in Child and Youth Care and has worked as a youth substance abuse counsellor. She is presently working full time as a sales clerk for the B.C. Liquor Distribution Branch but due to her low seniority she is subject to variable and fewer than desired working hours. [ 16 ] She testified as to the Children’s role and their experiences as part of their new family unit including herself, A and the Father.

She provided testimony about the inter-family relationships and her historically conflicted and strained relations with the Mother. Personal Backgrounds of the Children

[ 17 ] Based upon the evidence of counsellor Wendy Hogan, as would be expected the Children have had to deal with their loss of their family unit and with the negative feelings about the separation of their parents; They have expressed wishes that the parents would reconcile but recognize that is an unlikely occurrence. The Children have been supportive of each other. The Child T [ 18 ] T, age approximately 6 ½, is described by several of the witnesses as intellectually very bright; he shows signs that he may be a gifted child, but has not been tested due his young age; he has no special needs.

He is generally well adapted and active in a number of extra-curricular activities. T has been particularly affected by the separation of the parents. Wendy Hogan says that T has processed the loss and the new configuration of the family unit; T accepts that the Father is happier in his new relationship and that the Mother is unhappy as a result of the separation. T enjoys a good relationship with his brother K. T has a positive relationship with both parents. T is a more reserved child than his brother K. T is described in some of the evidence as being more inclined to hold back or be shy in social settings.

The Child K [ 19 ] K is approximately 5 ½ years old. He has no special needs. He is described as a generally well adapted and is active in a number of extra-curricular activities. A more happy go lucky child than his brother, according to Wendy Hogan initially K seemed less affected by the separation. But now he seems more agitated than in the past. K has a positive relationship with both parents; he told the counsellor that he believed that J.B. “hated” him and his brother. K makes friends more quickly than his brother T.

Health Care Issues for the Children [ 20 ] Both Children are generally healthy however the Mother has had to seek care for them from paediatric specialists and attend at distant regional hospitals for a number of conditions. This has necessitated her frequently travelling outside of their home community to other parts of Vancouver Island in order to access that specialized care, without assistance, financial or otherwise, from the Father.

Personal Background of the Mother [ 21 ] The Mother is approximately 43 years of age having been born in Iran; she moved to Ontario in 1985 where she grew up and completed her Grade 13 educational requirements. She is an industrious and ambitious person in a very positive sense. [ 22 ] After her Grade 13 graduation, she trained and worked successfully in administrative and management positions in the hospitality industry, both in Ontario and B.C., for three separate international hotel chains.

During this period, she became a dining room manager and took an interest and obtained specialized training in wine and spirits while working at a prominent luxury hotel in Vancouver. She has taken courses and obtained certificates on wine through the Wine and Spirit Education Trust (WSET). She also went on to manage a popular specialty restaurant in Vancouver.

From there she was recruited by a small but successful Okanagan Valley winery, where between 2001 and 2004, she gained experience in winery operations and in sales and marketing of that winery’s products throughout BC. [ 23 ] She moved to the West Coast of Vancouver Island in September of 2004 to obtain a position for two years as the wine sommelier and assistant restaurant manager at world class destination resort; she then worked in the accounting department of a local organic salmon farm for a period of 1½ years during which time she took bookkeeping courses. [ 24 ] She became pregnant with T in late 2006, gave birth in August of 2007 and was on maternity leave from the summer of 2007 onward, during which time she gave birth to K.

From March 2008 to June 2010 she helped support the family by taking on part time evening administrative work for a local restaurant. She then established her own bookkeeping business from 2010 to 2012 which she continued but then downsized it when she returned to work full time at the organic salmon farm business, following her separation from the Father in the fall of 2011. She eventually closed down the bookkeeping business due to the significant demands it placed on her along with her child rearing responsibilities and other employment demands.

She quit work at the organic salmon business in August of 2013 in anticipation of her relocation, along with the Children, to further her education in Penticton at Okanagan College. [ 25 ] The Mother testified that she was concerned about being locked into jobs on the West Coast of Vancouver Island with limited career and earning opportunities and with a resulting financial instability for her and the Children.

Therefore she pursued her goal to re- engage in the wine industry by applying in early 2013 to successfully gain admission into the Viticulture Certificate Program and the Winery Assistant Certificate Program. Each requires 6 months of study at the Penticton campus of Okanagan College. She was scheduled to start in the fall of 2013. [ 26 ] Her ultimate goal is to become a wine maker by possibly pursuing a Bachelors of Science course through Ontario’s Brock University in oenology or grape science.

Her evidence is that a qualified assistant wine maker can earn around $50,000 per annum and a qualified wine maker can earn between $75,000 and $100,000 per annum. [ 27 ] She testifies that she has opportunities to work full time as a winery assistant, in sales and administration, prior to starting her courses and also to work part time while continuing her education at Okanagan College, both in the wine industry and at bookkeeping. Her hourly earnings would be in the starting range of $25 per hour. This hourly rate would exceed what is presently available in the

Tofino area for the type of work for she is qualified to perform and for which the hourly rate would not exceed $20.00. [ 28 ] The educational opportunities and job opportunities in the Okanagan Valley remain available to the Mother notwithstanding that she did not start in the fall of 2013. [ 29 ] Since quitting her job in Tofino, the Mother has had to rely upon financial support from her family, especially when she does not receive timely child support payments from the Father . [ 30 ] She says that housing and the general cost of living in Penticton is significantly more affordable than in Tofino and she anticipates that her own mother will live with them to provide child minding care for the Children while she is working or attending college.

Other members of the Mother’s extended family are investigating business opportunities in the Okanagan Valley and are looking to relocate their also. [ 31 ] The Mother testifies that she has close friends in the Tofino area with whom she wishes to maintain contact following her planned departure.

She also says that she has no contacts on Vancouver Island in the wine industry or within other businesses beyond those she has made in the Tofino hospitality industry. [ 32 ] Reopening her bookkeeping business is not a viable career option for her because she previously closed it down for the planned relocation and other personal reasons which are broadly known to the business sector in the small community. Personal Background of the Father [ 33 ] The Father is a 39 year old self-taught carpenter, who was born in St. John’s Newfoundland Labrador, and who has attained a grade 12 education.

He was introduced to carpentry at age 13 by his own Father who was also a carpenter-contractor. The Father left his home province in 1993 to move to B.C. He worked as a carpenter and carpet layer in Whistler between 1993 1997 and then relocated to the lower mainland where he worked as a framing carpenter for 2 years. He entered into a business partnership with 2 other individuals between 1999 and 2002; they worked as framing contractors. He relocated to Tofino in 2002 and worked as a carpenter for a local developer, building high-end custom homes, up to about 2006. He became a carpenters’ foreman around 2004.

His steady work earned him between $20 per hour to $35 per hour and he was able to take one to three months of time off from work each year and support himself by relying upon his savings. [ 34 ] In 2007, after the birth of T, he started working for himself as a sole proprietor and continued that business, which focused on building custom homes, until the late summer of 2013.

He found working for himself to be challenging both in terms of properly bidding jobs, to provide him with a reasonable profit and with keeping his financial records up-to-date, especially once that task was no longer being performed by the Mother after their separation. He described himself as being “terrible at numbers”.

Since he formed his relationship with J.B. she has taken over that responsibility including writing cheques that are drawn on his proprietorship bank account, sometimes using his form of signature. [ 35 ] He has had problems remaining current with his business and other creditors and with Canada Revenue Agency (“CRA”). He also had trouble collecting his business accounts receivable in a timely fashion from his customers and found the operation of his business to be very stressful and overwhelming, especially after he and the Mother separated and he did not have her help.

I understand that he has faced bankruptcy on at least one earlier occasion in 2009-2010 due to arrears of taxes owing to CRA. [ 36 ] He wound down the formal operation of his proprietorship by the late summer of 2013, but did not do anything about completing any form of proper accounts for the business. He then found work on various smaller jobs or hired himself out to other carpenters; he also lived upon his collected accounts receivable during this period. [ 37 ] He then obtained a job in October 2013 working as employed carpenter with a local contractor. He serves as a sub foreman on a small crew.

That job pays between $25 and $35 per hour on the basis of full-time work of 5 days and 40 hours per week, but with some required weekend work, which is apparently paid at straight time rates. [ 38 ] He finds this present full-time and steady employment to be satisfactory; he wishes to maintain this employment rather than taking jobs away from his home community or being in business for himself.

His vacation pay is included in each of his cheques, accordingly he is not entitled to additional paid vacation from his employer and indicates that he does not have much in the way of available time off from his present employment. [ 39 ] Although his job hours are consistent, the Father testifies as to a limited flexibility in his

schedule and not being in a position to take time off in the summer or for that matter at any other time. [ 40 ] He has the opportunity of taking on separate, extra work on his own during his off hours, provided that it does not conflict with his steady employment.

When he has been engaged in that type of work he normally attempts to charge himself out at around $40 per hour; he has had an informal working relationship with another carpenter and they use this amount as their charge out rate when working on each other’s jobs. [ 41 ] From the time that he ceased operating as a proprietorship until the time that he obtained his job as an employee carpenter, the Father built a structure on the property held by J.B.. He did this without compensation. The plan was to create a vacation unit that could be rented out as a source of revenue.

It presently remains incomplete and is not suitable for rental purposes. [ 42 ] He has a strong network of friends in the Tofino area but no immediate family. He is now in a marriage like relationship with J.B. and considers himself to be the stepfather of A. He views this new blended family, including the Children and A, as an important family unit. The Relationship of the Mother and the Father

[ 43 ] The Mother and the Father had a very brief relationship prior to the Mother learning that she was pregnant with T. At the time of T’s birth, the Mother and the Father were not residing together. They started cohabitating shortly after T’s birth and continued to cohabitate during the infancy and early years of the Children. [ 44 ] They never married. They separated around October 2011 at which time the Father left the family home. [ 45 ] The parents have a highly conflicted relationship with each other.

They each characterize the relationship as being somewhere around a level of 3 on a scale of 1 to 10 with 1 being the worst possible and 10 being the best possible relationship. [ 46 ] At times their relationship works reasonably well but then descends into either an absence of effective communication or no communication at all. [ 47 ] There are mutual examples of the parents acting in a non-cooperative manner with each other. Some of those examples provided by the Father are characterized by him as an attempt at parental alienation by the Mother.

However, the evidence does not support that suggestion nor does it even approach Parental Alienation Syndrome (PAS) as it is described in McLelland v. McLelland [1999] B.C.J. No. 1754 at paragraph 14 . [ 48 ] It appears that the Mother remains very much wounded by the failure of the relationship between herself and the Father and by the fact that the Father has moved on to the new relationship with J.B., very soon after the separation.

The relationship between the Mother and J.B. has remained tense and strained for a great deal of time after J.B. and the Father formed their own relationship. [ 49 ] The role of J.B. as a step-parent has been a continuing source of conflict for the Father and the Mother. It is evident that the Mother has historically been very slow to accept J.B.’s new role and her relationship with the Father and has felt very threatened.

She is now more accepting of the new relationship but the Mother is clear in her evidence that the role of parents should be reserved for parents and not for step-parents. [ 50 ] The Mother becomes upset when the Father leaves the Children with J.B. due to his other commitments. In the past, she has even gone so far as come to retrieve the Children from J.B., who was in the residence occupied by J.B. and the Father, when the Mother became aware of the Father’s absence during his parenting time.

The unhappy result was the intervention of the RCMP. [ 51 ] At this point I will say that the evidence supports the conclusion that in the past the Mother and J.B. have not been taking sufficient steps to ameliorate the tension between each other. That continuing tension is clearly not is in the best interest of the Children. Parental Relationships With the Children [ 52 ] A significant majority of the responsibility for the Children’s care has fallen on the Mother both prior to and after separation.

Although the proportion of time spent with each parent was initially challenged by the Father, it is clear on the evidence that at present approximately 31% of the Children’s time is spent in the care of their Father and with his partner J.B. and the balance of the Children’s time is spent in the care of the Mother. [ 53 ] Both T and K’s extra-curricular activities, such as martial arts and team sports are arranged by the Mother who has primary responsibility for organizing their attendance at and participation in these activities.

The Father has provided limited assistance financially or otherwise for the Children to participate in these events. [ 54 ] The Children lead an active outdoor life with the Father and J.B. when they are in the Father’s care, during which they have the opportunity to surf, fish, bike ride, hike, learn to swim and to utilize the beach adjacent to J.B.’s residence.

They also socialize with other families and have the opportunity of having “play dates” with their own friends. [ 55 ] Each of the parents acknowledge the fact that the other has strengths as a parent but each has criticisms of the other’s parenting style. They clearly utilize different approaches to parenting and are less than accepting about some aspects of the other’s style. [ 56 ] Notwithstanding these differences and the conflicted relationship, it is clear that both are most suitable and loving parents and the Children are not at risk in either home.

The time spent with either parent is beneficial to each of the Children and is in their best interests. Child Maintenance Obligations of the Father [ 57 ] The Father has been very sporadic and unreliable in terms of making his regular child support payments in accordance with any of the existing orders. The most recent is the March 13, 2013 Order.

I accept the Mother’s evidence that after the last payment made towards child support on January 17, 2014 there remains in arrears the amount of $2,300. [ 58 ] The Mother gave a detailed account of payment of child support by the Father including amounts and dates when they were paid, as follows: Date Due Date Paid Amount Paid Arrears April 1, 2013 April 1, 2013 1,000.00 0.00 May 1, 2013 May - Week 1 500.00 500.00 May – end 500.00 0.00 June 1, 2013 June 12– Week 1 500.00 500.00 July 1, 2013 July – Week 2 1,000.00 500.00 August 1, 2013 August 1, 2013 1,000.00 500.00

September 1, 2013 Sept. – Week 1 500.00 1,000.00 Sept. – Week 3 200.00 700.00 October 1, 2013 October 18, 2013 300.00 1,400.00 November 1, 2013 November 1, 2013 1,000.00 1,400.00 December 1, 2013 December 11, 2013 400.00 2,000.00 December 18, 2013 300.00 1,700.00 January 1, 2014 January 17, 2014 400.00 2,300.00 [ 59 ] I am also satisfied that based on the Mother’s evidence and her calculations that the Father is in arrears for extraordinary expenses in the amount of $1,154 as at the dates of the hearing, for child care, owed pursuant to the March 13, 2013 Order. [ 60 ] The Father offers little in the way of a reasonable explanation for his failure to comply with his court ordered child support obligations.

I interpret his excuse to be one of an inability to pay the court ordered obligations on the basis of his actual Guideline Income. Since filing his Notice of Motion August 3, 2012 he has been seeking to vary the amount of his child support obligations of $1,000 per month to a “without prejudice” payment of $396 per month.

He has done so on the basis that when he agreed to pay interim child support of $1,000 per month commencing June 1, 2012 pursuant to the May 23, 2012 Order, he did not have adequate knowledge as to his actual Guideline Income, because he had not yet completed financial statements for his proprietorship. [ 61 ] His continuous failure to provide accurate or adequate financial disclosure has prevented that issue from being brought before the court to vary the terms of child support payments of $1,000 per month. Rather the original consent ordered payments were re-confirmed in the March 13, 2013 Order.

As noted at the outset of these reasons, that order also required that specific items of financial disclosure be made by the Father no later than April 30, 2013 and further granted leave to hear the application to vary or set aside the child support terms on 14 days’ notice. [ 62 ] The Father also has unsatisfied arrears for child care expenses separately due to the District of Tofino. Those payments were ordered by the Court at the Family Case Conference and pursuant to the July 20, 2012 Order.

The accumulation of his arrears almost resulted in the suspension of child care services being made available to the Children by that municipal body. [ 63 ] Notwithstanding the denial from both the Father and J.B., I have no doubt that the Father places a higher financial priority on his new family relationship with J.B. and their life together than he has in complying with the terms of the court orders for child support of T and K. [ 64 ] Based upon the evidence, it seems that he increases his portion of his “tenant” payments made to J.B. to cover the short falls of cash incurred by J.B. either from her employment or other sources.

He has set odd financial priorities other than paying the ordered child support. This is evidenced by the following examples: he traded in his financed 2008 Dodge Ram pickup truck for a new, 2013 Dodge Ram pickup truck which he also financed. He says it is required for work but says J.B. utilizes it to save the cost of operating her vehicle. The monthly payment for the new pickup truck is around $600 per month.

He has also purchased a used sport boat at an apparent cost of $3,000 following his separation from the Mother. [ 65 ] His uncooperative attitude about his financial commitments for child support was crystallized when he testified that what money he is making is required for his own expenses and therefore he did not have the required funds in order to make payments pursuant to the existing child support orders. [ 66 ] In his evidence he indicates that in the absence of timely payments for child support that the Mother should be able to support the Children through her employment.

He is critical that she quit her job at the fish farm and has not pursued what he considers to be excellent bookkeeping and accounting opportunities in the local community. There is little in the way of a proper appreciation of the significant inconvenience and stress placed upon the Mother for his failure to make child support payments in timely fashion. The Father is thoughtless in this regard. Father’s Lack of Compliance with Court Orders for Financial Disclosure [ 67 ] The Father has failed to provide adequate financial disclosure since the outset of these proceedings for a multitude of reasons.

The first order for financial disclosure as noted above, apparently was made on April 4, 2012 at the first appearance in court. [ 68 ] According to the evidence at trial, at the next April 18, 2012 court appearance, the time limit for the Father to complete his filing of financial information was extended until May 23, 2012. That deadline was missed and by way of the May 23, 2012 Order the disclosure filing deadline was set for July 20, 2012.

That date was selected by the Court to coincide with a Family Case conference. [ 69 ] On July 20, 2012, just a few minutes prior to the commencement of the Family Case Conference, through his legal counsel, the Father did provide a financial statement, apparently prepared by an accounting firm.

However, the Mother saw that the filed financial statement missed a significant portion of his proprietorship revenue for 2011 and understated the Father’s personal income by some $50,000. [ 70 ] Although a revised income tax return was prepared, the Father still did not provide proper financial disclosure until March 13, 2013, at which time the March 13, 2013 Order was made and contained very specific details as to the documents that still were to be provided and it set the deadline for April 30, 2013.

That order was made by the Honourable Judge Cowling. [ 71 ] Again, the Father failed to complete the preparation and filing of proper financial disclosure by that April 30, 2013 deadline. The matter came back before Judge Cowling on July 12, 2013 at which time his Honour imposed “a penalty in the amount of $300 for [the Father’s] failure to file disclosure as previously ordered by the Court, such payment to be made to the Mother within 90 days of making

of this Order.” A further order was made requiring the Father to complete, file and deliver financial disclosure in the correct form, all within 60 days, being a deadline in September of 2013. [ 72 ] That deadline in September 2013 came and went without the Father’s compliance with the ordered financial disclosure. He apparently paid the fine ordered by Judge Cowling and he testified to the effect that he understood he could pay the fine without complying with the disclosure requirement.

I am at a loss as to how he could have come to that conclusion. [ 73 ] On December 23, 2013 the Father filed a financial statement sworn on that date. It was significantly lacking in information concerning his employment income during 2013.

He deposes having total annual income of $40,000 and provides virtually nothing in support of that contention other than some pay stubs from his present employer, the most recent being for the pay period ending November 30, 2013. [ 74 ] He admits that he has no idea of what the income from his proprietorship was during 2013 and no steps have been taken by him to complete and update his proprietorship business records. He has provided no disclosure or even any indication of any income that he earned doing small jobs and working on various projects with a carpenter colleague in 2013.

The 2013 income figure of $40,000 is at the very best a guess and likely not a very accurate one at that. [ 75 ] Based on the Father’s evidence, I understand that he has not filed income tax returns since the 2010 taxation year and accordingly they have not been assessed by CRA. Although certain income tax returns have been prepared by various accounting and bookkeeping firms, he has not paid those firms and therefore the tax returns have either not being completed or if completed, have not been filed.

I also understand that the last GST-HST return filed for his proprietorship dates back to September 2010. [ 76 ] Bank account information that he was directed by the Court to provide was eventually presented in a form with more redacted from it than not. The excuse offered by the Father was that redaction was necessary to preserve the privacy of J.B. This excuse is not a reasonable one given the interconnection between the financial affairs of both the Father and J.B. [ 77 ] The Father has presented a number of excuses for his failure to comply with the financial disclosure.

They range from blaming his professional advisors, to a lack of understanding of what was being required of him, to his significant lack of skill at bookkeeping and financial matters. None of these excuses are reasonable in these circumstances. Notice of Relocation and Efforts to Resolve Issues Arising from Relocation [ 78 ] Having been accepted at Okanagan College for her educational programs by mid-May of 2013, the Mother immediately attempted to set up a meeting with the Father in order to discuss what she described to him as “important matters”.

The Father indicated that he was too busy to meet with her at that time. When no in person meeting occurred, the Mother sent formal notice of the proposed relocation to the Father by way of a letter dated June 3, 2013 (the “Notice”) which was emailed to the Father on the same day. The proposed date for relocation specified in the Notice was August 15, 2013. The Notice provides full details of the proposed relocation and the Mother’s reasons for wishing to do so, including the personal advantages to her and to the Children.

It also references the Mother’s concern about coming to satisfactory arrangements in order to maintain the Father’s contact with the Children. I conclude that the requirements of section 66 (1) of the FLA regarding notice of relocation have been satisfied. [ 79 ] Subsequent to emailing the Notice, the Mother attempted to arrange meetings with the Father in order to resolve issues arising from the relocation and in particular the continuation of the Father’s parenting time with the Children, if the relocation was to proceed. [ 80 ] The Father was uncooperative in attending at a meeting.

After the granting of the July 12, 2013 Order the Mother and Father met briefly on July 25, 2013. The Mother attempted to discuss that which she thought would be a reasonable and workable arrangement for the Father to have parenting time with the Children. The Father expressed total opposition to any relocation. Nothing was resolved that time.

By September 2013 the Father expressed the view that the Mother could relocate with the Children on Vancouver Island but not off of it. [ 81 ] The Mother’s evidence is that she has proposed that the Father have parenting time with the Children from mid-July to mid-August of each year, spring breaks each year, arrangements for alternating Christmases in Tofino and Penticton, arrangements to be made for additional visits in Vancouver to be coordinated with the Father’s visits to his family members and unlimited and unrestricted electronic access throughout the year. [ 82 ] The Mother further testified that she proposed that she would be responsible for transporting and accompanying the Children from Penticton through to the Departure Bay ferry terminal near Nanaimo on Vancouver Island, and that the Father would be responsible for accompanying and returning the Children to the ferry terminal on the British Columbia mainland. [ 83 ] The Father testified that the parenting time

schedule proposed by the Mother presents several concerns for him.

These included his inability to take time off during the summer and spring breaks, the limited time that he would have with the Children while he was working during the summer and spring breaks, the10 hours of time required for the Children to travel from Penticton to the West Coast of Vancouver Island, the dangerous road conditions that exist in the winter time in the interior of the Province of British Columbia, and the expense that would be incurred by him to exercise his parenting time. [ 84 ] In the alternative, the Father responds that if an order permitting relocation of the Children was made, he agrees with the proposal concerning Christmases and unrestricted electronic access throughout the year.

He submits that the Children should be with him for two full months in the summer, all school holidays and breaks, and taking into account travel time, the in-person parenting time would be no less than one week at a time. Positions of the Mother and Father on Relocation

The Mother’s Position On the Issue of Relocation [85] The Mother’s position is that relocation in this case is governed by section 69 (4) of the FLA since the parties do not havesubstantially equal parenting time and that she is the guardian with the majority of the parenting time. [86] Consequently she says that she has satisfied the court that the proposed relocation is in good faith and that she has proposed areasonable workable arrangement to preserve the relationship between the Children and their Father as required by subsection 69 (4) (a)(

i) and (ii) of the FLA. Therefore the presumption set out in subsection 69 (4) (

b) that the relocation must be considered to be in the bestinterests of the Children is operative and that the onus is then on the Father to supplant that presumption. [87] The Mother submits that the Father has not supplanted that presumption adequately. She suggests that this Court should take intoaccount the Father’s behaviour in failing to make proper financial disclosure, failing to pay child support and his failure to engage inmeaningful co-parenting and “other objectionable behaviour” since separation and says it constitutes “family violence” as defined insection 1 of the FLA.

Family violence is a consideration under the statutory considerations of best interest of child in sub sections 37(2)(

g) and (h). Reliance is place upon J.C.P. v. J.B. 2013 BCPC 297 , 2013 BC PC 297 regarding this notion of family violence.

The Father’s Position on the Issue of Relocation [88] I understand the Father’s position to be that the proposed relocation is not being made in good faith by the Mother, that theproposed arrangements to preserve his relationship with the Children are not reasonable nor workable and that the relocation is not in thebest interests of the Children. [89] With respect to the aspect of good faith, the Father suggests that the Mother quit her job and served notice to terminate her Tofinotenancy arrangement prior to any consultation with him.

She is refusing to take advantage of a significant number of work opportunitiesavailable for her in Tofino. Although not specifically stated, I understand that the inference I am being asked to draw is that she hasthereby created an economic crisis for herself which is being used to assist her in her relocation application. [90] I understand further that the Father submits that with respect to the proposed parenting time arrangements, that it will significantlyand adversely impact on his ability to maintain contact with the Children. He says that he is hampered by an inflexible

schedule and willhave to bear significant expenses in order to continue to have a reasonable amount of parenting time with his Children. This is in contrastto what he presently enjoys under the existing court orders.

In fact he suggests that his parenting time should be increased to approachsomething more akin to a shared parenting arrangement. [91] With respect to the relocation of the Children, he expresses concerns that the Children will be deprived of their relationship not onlywith him but also with A, J.B., and their local friends, all with no material offsetting benefit arising from the move to Penticton.Furthermore, there will not be the same support network in Penticton that the Children enjoy in their Tofino home community.

The Law With Respect to Relocation [92] The two interim orders being the May 23, 2012 Order and the July 12, 2013 Order deal with the guardianship of the Children andthe Father’s access. They are orders respecting parenting arrangements as contemplated by section 65(1) (2). The result is that Division 6of

part 4 of the FLA applies to the Mother’s relocation application (see

section 65). [see: also L.J.R. v. S.W.R. 2013 BCSC 1344](“L.J.R.”) [93] The proposed move to Penticton from Tofino is also a relocation within the meaning of section 65 (1) of the FLA since it can bereasonably expected to have a significant impact on the relationship of the Children with their Father, who is also a guardian. [94] Section 69 (3) of the FLA establishes that the test for relocation is the best interests of the child. The statutory factors of bestinterest of the child include and to be considered are set out section 37(2) of the FLA.

In addition to those factors, section 69(3) requiresthat the factors in section 69(4) must be considered. [95] In this case, the parents do not have substantially equal parenting time and therefore section 69 (4) applies, rather than section 69(5) which is engaged where the relocating guardian and the other guardian have substantially equal parenting time with the children. [96] Under section 69 (4) (

a) the Mother, as the relocating guardian must satisfy the court that: (1) the proposed relocation from Tofino to Penticton is made in good faith; and (2) she has proposed reasonable workable arrangements to preserve the Children’s relationship with the Father and persons withsignificant roles in the life of each Child;

[ 97 ] The relevant factors to be considered in determining if the proposed relocation is made in good faith are set out in section 69 (6) of the FLA . [ 98 ] If the Mother establishes the existence of the section 69(4)(

a) factors, then the move is presumed to be in the best interests of the Children pursuant to section 69 (4) (b), unless the Father, who is seeking to prohibit the move, establishes otherwise. Section 69(4) (

b) imposes upon the Father the burden to demonstrate that the relocation is not in the Children’s best interest. [ 99 ] The court must not consider whether the Mother seeking the relocation would do so without the Children or in this case either child [see section 69 (7)]. Analysis of Mother’s Application for Relocation Requirement that the Relocation is Made in Good Faith [ 100 ] I am satisfied that the Mother has met the requirements of section 69 (4) (a) (

i) and has demonstrated that the proposed relocation is made in good faith having regard for all relevant factors including (but not limited to) those set out in section 69 (6) (

a) to (

d) inclusive of the FLA . [ 101 ] As Mr. Justice Betton observes in L.J.R . with respect to section 69(6) and the analysis of the factors referred to therein: [71] Good faith is a subjectively held state of mind. Yet, some of the above characteristics are undoubtedly objective.

I find that to the extent a factor listed in s. 69(6) is objective, a positive or negative finding suggests an inference that the relocating guardian either possessed or did not possess the required subjective good faith. [72] The language of s. 69(6) makes it clear that the above four considerations are not an exhaustive list, but those considerations do establish a tone for the concept of good faith in Division 6 relocation proceedings. They are, in my view, consistent with a common understanding of the phrase.

S.69(6)(a): the reasons for the proposed relocation [ 102 ] The Mother seeks to improve her financial position and that of the Children by the proposed relocation. That improvement is both in terms of her income opportunities and her reduced cost of living for the immediate time horizon and also for the longer time horizon, especially once she has improved her educational qualifications and thereby is on her path to becoming a qualified wine maker. [ 103 ] The Mother’s educational plans and her career plans that can be advanced by the relocation are subjectively and objectively realistic and to her advantage.

She has demonstrated an acumen in the wine industry. The opportunities to pursue that career path are not readily available to her in Tofino or for that matter, on Vancouver Island, specifically due to her lack of contacts and the lack of educational course offerings. [ 104 ] The Father has demonstrated that he is not reliable either in making timely payments of child support or in making the necessary financial disclosure in order to determine what an appropriate level of child support should be in this case.

The Father has clearly indicated that in the absence of his financial support, it will be incumbent upon the Mother to provide the means of financial support for the Children. I accept her evidence that while she has had some reasonable employment and career opportunities and prospects on the West Coast, those prospects and opportunities are significantly more restricted than those likely available to her in the Okanagan Valley.

I conclude that she has a greater opportunity to achieve short and long term financial security through the relocation. [ 105 ] These reasons for relocation on balance clearly support the finding of good faith in this case. S.69(6)(

b) Whether the proposed relocation is likely to enhance the general quality of the lives of the Children and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities [ 106 ] I have already concluded that the Mother, will benefit from financial and educational opportunities that will become available to her as a result of the relocation [ 107 ] Given the fact that the Father’s appropriate contribution to the support of the Children will be an ongoing, highly contested issue for many months to come, and given the fact that the Mother will have stable full-time and part-time employment available to her in Penticton, I am satisfied that the financial well-being of the Children will be enhanced by the relocation. [ 108 ] The Mother also relies upon the assertion that improved access to specialized medical and dental treatment and better resourced medical facilities required for the Children will result from the relocation.

The Mother is primarily responsible for attempting to access this type of care without material assistance from the Father. Reasonable access to any required specialized medical and dental care will enhance the general quality of the lives of the Children. Objectively, given the circumstances in this case, this is a valid consideration and one upon which I place a reasonable amount of weight in assessing that the relocation is being made in good faith. [ 109 ] The Mother also has pointed to some educational benefits and resources that can be accessed by the Children through the

relocation. This may be true if either of the Children is in fact determined to be gifted. At this point, given the ages of the Children it is somewhat speculative as to the overall educational advantages that may be gained by the Children through the relocation.

However, based upon the evidence before me, these are both objectively and subjectively positive factors that the Mother can, to a certain extent, reasonably rely upon in making her case that the relocation is being made in good faith. [ 110 ] There is a suggestion in some of the evidence that the relocation may reduce the day-to-day ongoing conflict between the Mother and the Father and between the Mother and J.B. and thereby provide some relief to the Children from the anxiety and the emotional tug- of-war in which, at times, they find themselves embroiled.

There is also the suggestion in the evidence that the Children may also gain some emotional well-being from the potential opportunities to establish closer relationships with the Mother’s extended family upon the relocation to Penticton. [ 111 ] Offset against this type of improvement in emotional well-being will be the emotional challenges that may be presented to the Children by the relocation and their loss of frequent in person parenting time with their Father and contact with their stepsister, A and with J.B. due to the reasonably significant geographic separation.

They will also face the usual challenges of adapting to new schools, routines, friends and acquaintances that will flow from any relocation. [ 112 ] I cannot objectively conclude one way or the other that there will be an increased emotional well-being for the Children as a result of the relocation. The potentially adverse challenges to emotional well-being arising from any relocation appear to be manageable.

Therefore the overall concerns for the Children’s emotional well-being arising from relocation can be regarded as essentially neutral. [ 113 ] All of the factors noted above generally support the finding of good faith with respect to the relocation. S.69(6)(

c) whether notice was given under

section 66 (notice of relocation) [ 114 ] As I concluded above, the Mother provided the Notice to the Father thereby satisfying the

section 66 good faith factor. In addition, that Mother took reasonable steps to attempt to resolve through agreement any issues arising from the relocation and detailed in the Notice, by attempting to arrange an in person meeting with the Father. Her actions were in keeping with the important principal of resolving disputes out of court, as is the purpose of

Part 2, and expressed in

section 2 of the FLA . Her actions buttress her assertion both subjectively and objectively that the proposed relocation was in good faith. [ 115 ] Unfortunately the Father’s response of delaying an in person meeting with the Mother and when that meeting did occur being completely dismissive of the Mother’s proposed relocation and offering little in the way of potential solutions to address any of his concerns was not beneficial to resolving matters by agreement. S.69(6)(

d) any restrictions on relocation contained in a written agreement or an order [ 116 ] The May 12, 2013 Order prohibiting the Mother from relocating the residence of the Children without the Father’s agreement or further order of the Court has been complied with by her. Quite properly she had deferred taking any further steps to relocate until this issue could be heard by the Court. She has complied with this Court order, notwithstanding that she has had to endure a very significant level of the Father’s non-compliance with court orders made in this matter.

Her compliance is an important factor weighing in favour of the Mother, in establishing that the proposed relocation is made in good faith. A Reasonable and Workable Arrangement to Preserve the Relationship between the Father and the Children. [ 117 ] I am satisfied that the Mother has proposed a reasonable and workable arrangement to preserve the relationship between the Father and the Children and with other persons who have a significant role in the Children’s lives.

Therefore I conclude that the Mother has satisfied the requirements of section 69 (4) (a) (ii). [ 118 ] What is proposed by the Mother is materially different than what the Father has been exercising by way of his parenting time. Whereas the Mother has attempted to find solutions, the Father has until late in the hearing only been able to find what he appears to consider as insurmountable problems, which conflict with his own personal agenda and his schedule.

The Father’s approach fails to recognize that cooperation and accommodation between parents is an important contributor to the health and emotional well-being of Children. [ 119 ] The Mother’s proposal is both workable and reasonable in the circumstances. The Mother has based her proposal for the Father’s parenting on similar terms approved by Master Young in M.K.A. v. A.F.W . 2013 BCSC 1415 .

That case dealt with the relocation of a child from Kelowna B.C. to Edmonton, Alberta. [ 120 ] For the proposed arrangements or for any arrangement to successfully work, the Father will have to make some appropriate accommodation in his work

schedule and in his priorities. He will not have the regularity of in person contact with the Children but he will have generous periods of parenting time with the Children throughout the year, if the proposed arrangement or some form of it is adopted by this Court. [ 121 ] For the proposed arrangement or any other arrangement to work successfully, the Mother will have to accept that J.B. will play an important role in the parenting time that is afforded the Father.

It is unrealistic for the Mother to expect that during such parenting time that J.B. will not be providing child care for the Children or that she will not be helping to coordinate and supervise their activities and generally be responsible for them while the Father may be fulfilling his employment responsibilities. He must be allowed to have this support from and involvement by J.B. so that he can fulfil his financial obligations to support the Children.

[ 122 ] J.B. and A serve an important role in the lives of the Children. The Mother’s proposal will assist in fostering and maintaining those relationships. [ 123 ] The Mother has expressed a wish to maintain contact with friends in Tofino and a willingness to provide the transportation for the Children. These are also important factors in reaching my conclusions about the proposal for preserving the relationships made by the Mother being reasonable and workable. The Rebuttable Presumption that Relocation must be considered to be in the best interests of the Children. The Father’s Position [ 124 ] The Mother having satisfied the requirements of section 69 (4) (

a) can now rely upon the presumption contained in section 69 (4) (

b) that the relocation is in the best interests of the Children. [ 125 ] That is a rebuttable presumption and the onus therefore lies on the Father to rebut that presumption. In that regard some of the factors to be considered are set out in section 37 (2) of the FLA (best interest of the child). [ 126 ] The Father places the most emphasis on the needs and circumstances contained in section 37 (2) (a), (

c) and (

e) of the FLA as being problematic for the best interest of the Children if the relocation is permitted [ 127 ] The Father submits that the Children’s health and emotional well-being will be adversely affected [see subsection (a)] as will his strong relationship with the Children and also that their strong relationship with A and J.B. will be adversely impacted. [see subsection (c)]. [ 128 ] He further submits that, at this stage given their ages and stages of development, the Children’s need for stability is a very important factor [see subsection (e)] and that relocation at this time will undermine that required stability. [ 129 ] I observe that there will be some impact flowing from any relocation that may be ordered and each of the factors pointed to by the Father will be considerations. [ 130 ] However, on balance, there is little before me that allows me to conclude that the Father has discharged the onus on him to rebut the statutory presumption that the relocation is in the best interests of the Children.

It will of course be an inconvenience to him but that inconvenience is manageable generally by means of the proposal that the Mother has put forward to maintain parenting time contact for the Father. The Mother’s Position [ 131 ] The Mother argues that the Father’s conduct in this case both in terms of his failure to abide by the disclosure orders and his failure to pay child support amounts to family violence within the meaning of the FLA . Aspects of family violence are factors that require consideration under section 37(2) (

g) and (

h) when examining the best interest of the Children. [ 132 ] I accept the premise enunciated in J.C.P. v. J.B . ,supra, that a calculated and deliberate failure to pay child support that is designed to inflict psychological or emotional harm and to control another party’s behaviour can constitute family violence [see: para 15 and 18]. However, in reaching that conclusion, Judge Merrick noted that failure to pay child support will not often constitute

an act of family violence. Therefore the requirement that the payor knows that his or her failure to pay will inflict psychological and emotional trauma and that the payor has the intent to so inflict it on a family member are vital factors to the analysis and are necessary to reach such a conclusion about the existence of family violence. [ 133 ] The facts and in particular the combination of circumstances in J .C. P. v. J.B . are more egregious than in this case.

Here, it is clear that the Father’s failure to pay the child support has caused hardship, stress and inconvenience for the Mother. [ 134 ] The Father has started to forge a path that could allow the Court to eventually reach the conclusion that his impugned actions of failing to disclose and his failure to make timely child support payments have reached the state that they can be regarded as family violence. I am not satisfied that his behaviour has yet reached that level, and in particular is intended to inflict psychological and emotional trauma.

However, he is certainly travelling along that most unpraiseworthy path. Therefore his continuing failure to comply with these orders of the court may, in the future, permit the Court to find that family violence exists and upon making that finding, the Father will likely bear the consequences of it under the FLA . In my view my present finding about a lack of family violence does not put an end to that issue.

It remains open for the Mother to have the Court look at the continuum of the Father’s behaviour, both prospectively and retrospectively, in the future and to seek a future finding on this issue if the Father’s impugned behaviour does not change.

Conclusion and Orders with Respect to the Mother’s Relocation Application [ 135 ] Based upon my findings and the conclusions set forth above, I grant the Mother’s application to relocate the Children with her from Tofino, British Columbia in order to reside in Penticton, British Columbia on specific terms and conditions (the “Approved Relocation”). [ 136 ] The terms and conditions of the Approved Relocation will be as follows: 1.

My order granting the Approved Relocation is the further order of this Court contemplated in Paragraph 1 of the July 2, 2013 Order prohibiting the Mother from relocating the residence of the Children from Tofino without the Father’s written consent or by the further order of this Court.

2. Following the granting of the Approved Relocation, any future proposed relocations of the Children by the Mother either as defined in the Family Law Act or in any event outside of the Province of British Columbia will be subject to the further prior approval of this Court or by the mutual agreement of the Mother and the Father in writing. 3.

The provisions contained in paragraph 5 of the March 13, 2013 Order relating to the Father’s access to the Children under the Family Relations Act will be varied by deleting paragraph 5 of that order in its entirety upon the Mother completing the Approved Relocation with the Children. 4.

The Father will have reasonable and generous parenting time with the Children at such dates and times as may be agreed between upon by the Mother and the Father from time to time and in any event such parenting time for the Father, commencing immediately following the Mother completing the Approved Relocation with the Children will include, but not be limited to the following “Scheduled Parenting Time”: a. full time in person parenting time with the Children residing with the Father in Tofino from July 4th, until August 27th of each year, provided that the Mother will be entitled to one in person overnight visit with the Children for a duration of three nights, in Tofino, in the week preceding August 10th of each year, on specific dates provided to the Father by the Mother in writing no later than July 18th of each year. b. in alternating years, commencing 2014, full-time in person parenting time with the Children residing with the Father for 9 consecutive days during the Children’s school Christmas break, and unless otherwise agreed to by the Father and the Mother, such parenting time is to commence two days after the commencement of each Christmas school break and will finish two days prior to each commencement of the Children’s school term in the following January.

The Children will remain with the Mother for the Children’s school Christmas break in the alternating years commencing in 2015, provided that any in person Christmas parenting time for the Father in those years will be subject to the mutual agreement of the parties, arranged not less than 90 days in advance.

c) full time in person parenting time with the Children residing with the Father in Tofino during the Children’s school spring break and unless otherwise agreed to by the Father and the Mother, such parenting time to commence two days after the commencement of the Children’s school spring break and will finish two days prior to the recommencement of the Children’s school term.

d) one additional long weekend of a duration of not less than 4 consecutive days in addition to any required travel time, in Tofino or in Penticton or in some other location on Vancouver Island or in the Lower Mainland of British Columbia, to occur in any month except for December, January, any month during which the Children’s school spring break falls, July, August and September. The Father will provide the Mother with written notice of his selection of such long weekend and its location at least 90 days in advance.

e) reasonable, generous and unrestricted parenting time for the Father throughout the year when he is not exercising his in person parenting time, such other parenting time to be exercised by the Father through the use of telephone, Skype, email, text and social media.

The Father will notify the Mother a reasonable time in advance in order to assure that the Children are available and not otherwise engaged in school or extra-curricular activities for telephone and Skype parenting time; provided that the Mother will have the same kind of reasonable unrestricted parenting time, when the Children are residing with the Father during the months of July and August of each year and during school Christmas and Spring breaks. 5.

The Mother or a person approved of by the Mother will be responsible for accompanying and transporting the Children from Penticton to the Departure Bay ferry terminal, at Nanaimo, Vancouver Island, B.C., for drop-off into the care of the Father or a person approved of by the Father, to permit him to exercise his parenting time on Vancouver Island.

The Father or a person approved of by the Father will be responsible for accompanying and transporting the Children from Tofino, BC to the Horseshoe Bay ferry terminal, at West Vancouver, B.C., to drop-off the Children into the care of the Mother or a person approved of by the Mother, when returning the Children to the Mother following the Father’s exercise of his in person parenting time on Vancouver Island.

The drop-off and pickup will be at times arranged in advance as between the Mother and the Father and each will notify the other at least 24 hours in advance of the name of any person approved by them who will be assisting with the drop-off and pickup of the Children. 6.

In addition to any agreements made by the Father and the Mother with respect to reasonable and generous parenting time, any Scheduled Parenting Time will be subject to any mutually agreed to amendments or variations or to further court order, provided that any agreed permanent amendments or variations of parenting time, including without limitation the Scheduled Parenting Time, will be evidenced in writing by the parents and incorporated into a consent desk order or other order of this court within 60 days of any such agreed permanent amendments or variations. Law with respect to imposition of penalties under

section 213 of the FLA [ 137 ] The decision of Mr. Justice Punnett in J.D.G. v. J.J.V . 2013 BCSC 1274 provides a very useful analysis of

section 213 of the FLA (Enforcing orders respecting disclosure) and compares and contrasts it with the predecessor provision found in

section 92 of the FRA (Failing to comply with rules respecting disclosure of information). [ 138 ] Punnett J. notes that there appears to have been an infrequency on the part of courts to provide the remedy found in

section 92 of the FRA and observed an apparent dissatisfaction with its effectiveness.

Section 92 provided for an order for payment of amounts not exceeding $5,000 for the benefit of spouses, parents or children by those individuals who had failed to comply with rules respecting disclosure information. [ 139 ]

Section 213 expands the availability of a remedy for non-disclosure; it provides for a broader range of remedies; it provides for fine or a direct payment of an amount not exceeding $5,000 to or for the benefit of a party or spouse or child “whose interests were affected” by non-disclosure of information or incomplete, false or misleading disclosure; and it expands the remedies available to the Provincial Court and provides some consistency in the remedies to enforce disclosure duties available in both the Provincial and Supreme Courts. [ see: J.D.G. v. J.J.V . at paragraph 19] .

[ 140 ] Punnet J. describes nondisclosure or delayed disclosure of financial information as a costly impediment to timely and just disposition of family disputes [ see J.D.G. v. J.J.V. at paragraph 1] . He further says that

section 213 recognizes that nondisclosure is a barrier to the speedy and inexpensive determination of cases, and that it is a barrier that should not be countenanced [see J.D.G. v. J.J. V . at paragraph 21]. [ 141 ] He then says as follows at paragraph 25: 25 The goal of proper disclosure is to enable the parties to resolve their dispute. In my opinion s. 213 is to be used to secure proper disclosure in a timely and cost efficient way. It therefore requires a robust application to accomplish that end.

That should increase the awareness of the importance of timely and complete disclosure and over time lead to fewer applications. In order words, punishment per se is not the end, but rather the means, as the information is required to resolve matters in a just manner.

Section 213 provides a mixture of tools to be applied creatively in a manner sensitive to the issues of a particular case. For example where implementation of a payment or a fine may be ineffective the drawing of an adverse inference or a requirement for security may be effective.

In addition its application should recognize the increased level of judicial case management inherent in the FLA and in particular the obligation imposed on the court under s. 199: [ 142 ] Punnett J. makes it clear that in furtherance of that “robust application”, the court’s approach must be to bring home the significance of timely disclosure, that it should not be taken lightly, and that proper and timely disclosure will be enforced. [see paragraph 30]. [ 143 ] In applying

section 213 the court should examine the circumstances of the case, the necessity of the disclosure to resolve the matter, the degree of nondisclosure, the reasons for the late or non-disclosure, when the disclosure is ultimately made and also how onerous and complex it will be for the party so ordered to comply with the disclosure requirement [see J.D.G .v. J.J.V . at paragraph 28] . Analysis with respect to imposition of penalties under

section 213 of the FLA Position of the Mother [ 144 ] The Mother says that the Father’s behaviour amounts to an egregious violation of the financial disclosure requirements under the FLA and the existing courts orders requiring him to make a proper financial disclosure. The violations of disclosure orders necessitated no less than three trials or hearings at which the lack of financial disclosure issue was canvassed. [ 145 ] Accordingly, this conduct requires that some reimbursement be made for the Mother’s legal expense. The point is made that the previous fine of $300 was not enough to gain compliance.

A year and a half after the May 23, 2012 Order for detailed financial disclosure was made, the Mother is no further ahead in obtaining adequate financial disclosure. Therefore a message must be sent to the Father about his requirement to comply with the financial disclosure orders. No specific amount has been suggested by the Mother. [ 146 ] The Mother also says that the Father’s failure to make timely and regular child maintenance payments is linked to this nondisclosure by the Father.

He continues to plead lack of sufficient income to make those payments but fails to make proper disclosure of what that income amount actually is.

If his income is not in the range of $70,000 to $75,000 per annum, being his approximate acknowledged income for 2011, (which would result in child maintenance payments of at least $1,000.00 per month) and is actually more in the range of $25,000 per annum in 2012 and $40,000 in 2013, (which is admitted but remains unsubstantiated) then the issue of underemployment of the Father must be considered by the court in determining the child maintenance variation issue. [ 147 ] I understand that Mother says that further orders of the court are required to address the non-payment issue beyond a direction from the court for a form of financial payment pursuant to

section 228 of the FLA . Position of the Father [ 148 ] The Father acknowledges that the issue of the variation of his child support payments cannot heard until such time as he complies with the disclosure orders of this Court. He further submits with respect to the required disclosure that he “wants to get this done” and that he has “nothing to hide” with respect to his financial position. He denies he is underemployed. [ 149 ] He denies that he has intentionally withheld the financial information and relies upon the various excuses he spoke of in his evidence.

He says that not all of the necessary hearings in this matter arose out of financial issues or dealt with financial disclosure issues as is contended by the Mother. He says that any additional penalties under sections 213 or 228 will delay him in being able to pay for accounting work necessary to complete his financial disclosure and from making up the payments of any outstanding arrears. [ 150 ] He also acknowledges that it would assist him in making payments of any outstanding arrears if a court ordered

schedule was in place, with reduced payments. Analysis [ 151 ] The Father’s failure to comply with the financial disclosure orders is likely due to the fact that he has failed to make adequate financial arrangements with the accountants he has engaged, in order to get the required accounting work done, or to have the work product released to him and to thereby allow him to get his income tax returns filed. The level of complexity of this type of accounting is not significantly great. It appears to be typical for a small business.

[ 152 ] The Father has had a significant period of time to settle those financial arrangements but has not done so. [ 153 ] The Father is not the victim of circumstances as he appears to suggest. He has a measure of control over those circumstances but has obviously not made the solutions to his problems a necessary priority. [ 154 ] I conclude that the Father’s nondisclosure has been significant and the delay of the disclosure of his financial information has been lengthy. It has also been a costly impediment to timely and just disposition of an important issue in this family dispute. [ 155 ] This is a matter that requires a robust application of

section 213 and a significant penalty is warranted. [ 156 ] Accordingly, the Father will pay the Mother the amount of $1,000.00 pursuant to section 213 (2) (d) (ii) of the FLA in accordance with the terms set out below. Conclusion and Orders with Respect to the

section 213 penalties and Other Orders [ 157 ] I will deal first with the continuing payments of child support of $1,000.00 per month due on or before the first day of each and every month, in accordance with the May 13, 2013 Order and thereafter with the arrears child support payments and child care expenses. [ 158 ] The May 13, 2013 order will be varied such that paragraph 3 will be deleted and in substitution therefore the following will be inserted: Commencing March 1, 2014 E.C. shall pay to S.N. child support in the amount of $1,000 per month in two equal installment of $500.00 each, with the first installment due on the first day of the month and the second installment due on the 16 th day of the month, such payment to continue until further order of this court.

Any unpaid amount due for child support for the month of February 2014, as provided for under the May 13, 2013 Order, prior to its variation, will be paid in full within ten days of the date of these reasons for judgment. [ 159 ] The arrears of child support being $2,300.00 and the arrears of child care expenses due to the Mother of $1,154.00 both as at January 17 th , 2014 together with the

section 213 penalty amount of $1,000.00 totalling $4,454.00 will be paid in instalments of $50.00 twice each month with the first instalment due on the first day of each month and the second on the 16 th day of each month, commencing, April 1 st , 2014 and such payments will continue each month thereafter until the entire amount is paid in full or until further order of this court. The payments will be allocated first to payment in full of the

section 213 penalty of $1,000 and thereafter to the child support arrears and arrears of child care expenses. [ 160 ] In the event the Father shall fail to make payments in accordance with the terms of this order, the Mother is at liberty upon serving notice to the Father in accordance with the Provincial Court (Family) Rules to seek a review of this order and may also apply for enforcement of this order under the Family Maintenance Enforcement Act . The Mother will be permitted to attend any court hearings by telephone if she is not a resident of Vancouver Island.

Orders for Further Financial Disclosure [ 161 ] In order to allow the Father to have reasonable time to comply with required disclosure, I order that on or before September 1 st , 2014 the Father will : 1.

Comply with all existing disclosure orders made in this matter including without limitation the March 13, 2013 Order and the July 12, 2013 Order, and he will provide all documentation without any redactions, and the Father will continue to make all required disclosure in accordance with all existing disclosure orders and will provide updated disclosure from time to time, in addition to any disclosure that has been made by him. 2.

Prepare and file with CRA all of his outstanding T1 Income Tax and Benefits Returns complete with all necessary Statements of Business or Professional Activities for the taxation years 2010, 2011, 2012 and 2013 and the Father will provide to the Mother’s legal counsel true copies of each of those of those documents and true copies of all notices of assessment and notices of reassessment received by the Father or by his accountants or representatives from CRA for each of those taxation years along with any statement received from CRA showing the amount of tax arrears and the penalties and interest thereon for each of those taxation years. 3.

Prepare and file with CRA all of his outstanding GST and HST returns for all taxation years from 2010, 2011, 2012 and 2013 and provide to the Mother’s legal counsel true copies of each of those documents and true copies of all notices of assessment and notices of reassessment received by the Father or by his accountants or representatives from CRA for each of those taxation years along with any statements received from CRA showing the amounts of tax arrears and penalties and interest thereon for each of those taxation years. 4.

Deliver copies of all pay slips received from all of his employers for the 2014 taxation year together with an accounting of any additional income received in 2014, with particulars of the source of that income and any expenses related to earning that income. 5. File with the court a fully completed and updated sworn Financial Statement in the required form containing all required particulars and information fully completed, including without limitation

Part 2 Expenses and

Part 3 Assets and Debts, and shall attach to it all applicable documents set forth in

section 3 of

Part 1-Income and copies of all other documents referred to in this order.

[ 162 ] If the Father fails to comply with the disclosure terms of this order, the Mother is at liberty to apply for a further order under

section 213 of the Family Law Act , including without limitation for a further order under section 213 (2) of the Family Law Act or to seek any other available relief under the FLA . [ 163 ] The March 13, 2013 Order will be further varied by deleting paragraph 7 in its entirety. In substitution for it will be the following provision that will form part of the order for disclosure set forth above.

Upon giving written notice to the Mother that the Father believes that he has complied with all required disclosure contained in this order and any other existing disclosure orders of this Court, the Father will upon serving notice upon the Mother in accordance with Provincial Court (Family) Rules seek leave o

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