☼ J.L.B. v. K.A.L., 2022 BCPC 311

Citation: ☼ J.L.B. v. K.A.L. 2022 BCPC 311 Date: ☼ 20221205 File No: [omitted for publication] Registry: [omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J.L.B. APPLICANT AND: K.A.L. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Applicant: J. Rempel Appearing on his own behalf: K.L., by telecommunication Place of Hearing: [omitted for publication] , B.C. Dates of Hearing: October 3, 5, 6, 2022 Date of Judgment: December 5, 2022

INTRODUCTION [ 1 ] J.B. and K.L. are the biological parents of E.L., who is now [omitted for publication] years old. Since December 2018, E. has lived primarily with her mother in [omitted for publication], BC, and has extended parenting time with her father at his home in [omitted for publication], Alberta. At the time of separation, J.B. and K.L. lived in [omitted for publication], Alberta where E. spent the first four and one-half years of her life. The parties have obtained multiple orders from the Provincial Court of Alberta with respect to parenting arrangements for E.

Their latest parenting-time order was one made by consent before Judge Krinke on August 24, 2020 in the [omitted for publication] Provincial Court of Alberta. J.B. wants to change Judge Krinke’s August 24, 2020 Order and K.L. wants it recognized and enforced. J.B. also seeks child support, both retroactive and ongoing, and a declaration she is entitled to compensatory spousal support. [ 2 ] This matter came before me for trial on October 3, 5, 6, 2022 in the [omitted for publication] Provincial Court of British Columbia.

Although these proceedings were initiated at the end of 2019, K.L. has never appeared in person in the [omitted for publication] Provincial Court of British Columbia. At the commencement of the trial on October 5, 2022, K.L. claimed to not have received notice of the trial dates. I did not believe him. I permitted K.L. to listen to the proceedings remotely but not to fully participate in the trial. Because of this ruling, I have particularized the procedural history of this matter in these Reasons for Judgment. ISSUES [ 3 ] The issues before the court are as follows: a.

Should this Court recognize as valid and enforceable Judge Krinke’s August 24, 2020 Order made in the [omitted for publication] Provincial Court of Alberta? b. If so, should this Court vary Judge Krinke’s August 24, 2020 Order as to the allocation of parenting time and parenting responsibilities? c. What are K.L.’s retroactive and ongoing support obligations for E.? d. Is J.B. entitled to compensatory spousal support? e. Should this Court impose financial penalties on K.L. for failing to comply with Judge Fisher’s September 17, 2019 Order made in the [omitted for publication] Provincial Court of Alberta?

BACKGROUND AND PROCEDURAL HISTORY [ 4 ] J.L.B. (or “J.B.” or “Ms. B.”) is [omitted for publication] years old, having been born on [omitted for publication]. She heralds from [omitted for publication], BC, but identifies as Metis-Cree. [ 5 ] K.A.L. (or “K.L.”, or “Mr. L.”) is [omitted for publication] years old, having been born [omitted for publication]. K.L. was born and raised in eastern Saskatchewan; however, he has lived in [omitted for publication] for the past 20 years. [ 6 ] K.L. and J.B. met online in 2011. J.B. lived in [omitted for publication], BC, as does her extended family.

At the time, K.L. lived in [omitted for publication], Alberta. J.B. was the biological mother of two children: P.H. (or “P.”) born [omitted for publication], now [omitted for publication]; and L.H. (or “L.”) born [omitted for publication], now [omitted for publication].

On July 5, 2011, J.B. moved with P. (then age [omitted for publication]) and L. (then age [omitted for publication]) to [omitted for publication] and began cohabitating with K.L. in an intimate relationship. [ 7 ] J.B. and K.L. are the biological parents of E.F.L. (or “E.”, or “E.L.”), born [omitted for publication] in [omitted for publication], Alberta. [ 8 ] J.B. and K.L. separated on or about December 1, 2018.

At the time they were still residing in [omitted for publication], Alberta. [ 9 ] Around the time of K.L. and J.B.’s separation, K.L. consulted with legal counsel and then presented J.B. with a draft separation agreement which states:

A) K.L. will deposit money into a joint account with J.L.B. on the first of each month in the amount of $700 as child support. All monies are to be allotted for the child aforementioned and only for that child.

B) Living arrangements for E. will be that she primarily resides with J.B. but with an agreement to 50/50 Legal Custody with K.L. to which any and all decisions regarding E. will be joint. This includes and is not limited to health care, education, etc. J.B. will not withhold any visitation rights from K.L. as physical custody will remain joint. K.L. will be entitled to 3 video chat sessions per week at an agreed upon time and can only be adjusted with 24hrs notice from J.B. if circumstances arise and the appointment cannot be kept. Because K.L.'s work

schedule fluctuates, notice of a week will be given to J. for when E. is to be in K.'s custody for visitation and shall not exceed a reasonable time frame.

C) K.L. agrees to pay for extracurricular activities for E. upon proof of enrollment from said agency. IE: Dance, Ringette, etc. No monies for any extracurricular activities will be paid through J.B., but will be paid by K.L. directly to the business involved.

D) If daycare is required, K.L. agrees to pay an additional $300.00 a month upon receiving an invoice from said daycare and will be provided attendance records.

E) K.L. will pay for the one time move of J.B. and her children and E. L. This will include a hotel for one night, the cost of a U-Haul rental, and food for the trip. Any additional costs will be paid for by J.B.

F) J.B. will claim E. on income taxes for the 2019 year. All following years will be revisited and discussed. [ 10 ] The December 2018 draft separation agreement was never signed; however, J.B.’s testimony at trial indicates that she considered it binding in some respects. [ 11 ] J.B. relocated with P., L. and E. from [omitted for publication] to [omitted for publication], BC on December 8, 2018. [omitted for publication], BC, a distance of 1,300 kilometres from [omitted for publication].

K.L. claimed that he came home from work on December 8, 2018, to find that J.B. had left with the children and the contents of their home. [ 12 ] On January 2, 2019, K.L. filed a claim under the Alberta Family Law Act in the [omitted for publication] Provincial Court of Alberta, File Number [omitted for publication]. In his application, K.L. sought an order that E. reside primarily with him and that he and J.B. share equally most parenting responsibilities. In this application, K.L. indicated his address for service was [omitted for publication], Alberta.

Also on January 2, 2019, K.L. filed an affidavit in support of his January 2, 2019 Application. In his affidavit, K.L. states: J. is unemployed and I am confident she does not have the means of taking care of three kids plus herself. I am making arrangements to get my truck back. Once I have my truck, she is without a means of transportation in which if there is and [sic] emergency.

A vehicle needs to be accessible. [ 13 ] K.L.’s January 2, 2019 application was scheduled into the [omitted for publication] Provincial Court on January 29, 2019. [ 14 ] On February 14, 2019, K.L. entered into a “common law relationship” and began to cohabit with J.C. (Exhibit 4). K.L. and J.C. separated in July 2022. During the currency of their relationship, J.C. and her teenage daughter resided with K.L. in [omitted for publication].

In his August 29, 2022 Affidavit filed with the Court of King’s Bench of Alberta in [omitted for publication] (Court File [omitted for publication]), K.L. describes his relationship with J.C. (at para. 7) as a “four-year relationship”. [ 15 ] On May 14, 2019, Judge F.C. Fisher of the [omitted for publication] Provincial Court of Alberta made an interim parenting order, a copy of which has not been provided to this Court. Reference to this order is found in Judge F.C. Fisher’s September 17, 2019 Final Parenting Time Order referenced below. [ 16 ] On September 17, 2019, J.B. appeared before Judge F.C.

Fisher at the [omitted for publication] Provincial Court of Alberta. Judge Fisher notes that K.L. did not attend a Judicial Dispute Resolution scheduled for September 16, 2019, nor did he attend at court scheduled the following day. J.B. was present and represented by legal counsel on both dates. On September 17, 2019, after hearing submissions from J.B.’s legal counsel, Judge F.C. Fisher made the following order (“Judge Fisher’s September 17, 2019 Order”) in the Provincial Court of Alberta, [omitted for publication] Registry, Court File [omitted for publication] : 1.

The Interim Parenting Order granted May 14, 2919 by the Honourable Judge F.C. Fisher, is replaced by the within Order. 2. The Respondent, J.B., shall have the primary residential day-to-day care of the child, E.L., born [omitted for publication] (the "Child"). 3. The Applicant, K.L., shall have reasonable and generous parenting time with the Child on 72 hours' notice. The exchange of the Child is to be at [omitted for publication], Alberta, however; in the event that the Respondent is not able to travel to the exchange point, the Applicant will be responsible for picking up and returning the Child. 4.

The Applicant shall also have further parenting time to include: a. The full month of August each year; b. The full Christmas break in 2019; c. The first half of the Christmas break to include Christmas Day in odd years and the second half of the Christmas break in even years (with the exception of 2019 as referenced in (b); d. The Easter break. The exchange of the Child will take place the day after school is out at [omitted for publication], Alberta with both parties travelling to the exchange point. 5.

The Applicant shall have video chat or telephone access with the Child up to 4 days a week at a time that is agreed upon between the parties. The Applicant shall give the Respondent at least 24-hour notice, by email or text message only, of the Applicant's proposed day and time for the call. 6. All communication between the parties shall be by email or text message only and shall only be about topics related to the Child. 7.

Except for matters pertaining to the Child's residence and day to day residential care, the Applicant and Respondent shall share all powers, responsibilities, entitlements of guardianship and decision-making regarding the Child, including decisions regarding the following: a. Education; b. Extracurricular school activities;

c. Cultural upbringing; d. Spiritual upbringing; e. With whom the Child will associate; f. Whether the Child should work and if so, the details of the work; g. Consent to health-related treatment for the Child; h. Give consent of a parent or guardian; i. Receive and respond to any notice to a parent or a guardian; j. Deal with any legal proceedings relating to the Child; k. Appoint a person to act on behalf of the guardian in an emergency situation or when the Guardian is temporarily absent.

In the event there is a dispute regarding decision making, the final decision will be made by the party who has day to day residential care of the Child, the Respondent. 8. The Applicant and Respondent are both entitled to receive any health, education or other information that may significantly affect the Child. 9. If a party or any other person on their behalf breaches this Order, then a Peace Officer will provide assistance to ensure that the offending party complies with the Order. Before enforcing this Order, a Peace Officer must first ensure that the party has been served with a copy of this Order.

If not served, that party must be shown a copy of the Order by the Peace Officer and be given reasonable time to comply with the Order. If the party fails or refuses to comply with this Order, the Peace Officer may do such lawful acts as may be necessary to give effect to the Order including, if necessary, arrest, detain and bring the party at the earliest possible time before a Judge of the Provincial Court to show cause why the party should not be cited for civil contempt. 10. If the Peace Officer decides that compliance with the Order is not in the children's best interest, the Officer must prepare a report.

The Officer's report must include a statement describing the events and circumstances of the assistance provided and the reason for any non-enforcement of this Order. The parties each have the right to request, in writing, a copy of the report from the Peace Officer's law enforcement agency. On receiving a written request, the law enforcement agency must provide a copy of the report to the parties. Privileged information must be removed from the report before it is released to the parties. 11. Rule 9.4(2)(

c) is hereby invoked. 12. This Order will remain in effect until further Order of this Court. [ 17 ] Judge Fisher’s September 17, 2019 Order was filed as Exhibit 1 in the trial of this matter before me on October 5, 2022, in the [omitted for publication] Provincial Court of British Columbia. [ 18 ] On November 6, 2019, K.L. purchased the lands and premises at [omitted for publication] Alberta, (the “R. Residence”) for $254,500, which was registered solely in his name. The land title documents indicate the purchase price was paid for in cash and a mortgage of $236,150, Computer Share Trust Fund of Canada.

K.L. states in his April 29, 2022 Affidavit filed in the Alberta Court of King’s Bench File [omitted for publication]) that he funded the deposit, which I gather was $18,350, for the acquisition of the R. Residence (see Exhibit 4, para. 4. Exhibit A). [ 19 ] On December 31, 2019, J.B. filed an Application to Obtain an Order in British Columbia Provincial Court, [omitted for publication] Registry File [omitted for publication] and registered in the Court Electronic Information System (“CEIS”) as document 1. J.B. sought spousal support, child support and primary residence of E.

In her application, J.B. stated that she has “primary residential and day-to-day care of E.L.” At that time, J.B. lived in [omitted for publication], BC, and was represented by legal counsel, Mr. D. Frappier. K.L. resided at the R. Residence. J.B. indicated K.L.’s telephone number as [omitted for publication] and his email address was [omitted for publication].

Sandra Yanay, process server, personally served K.L. with the December 31, 2019 Application on January 8, 2020 (CEIS 2). [ 20 ] On January 29, 2020, J.B. filed her first Form 4 Financial Statement in the [omitted for publication] Registry, File [omitted for publication] (CEIS 3). [ 21 ] On February 3, 2020, K.L. filed a Reply with Counterclaim (CEIS 4), confirming his address and telephone number as that set out in J.B.’s December 31, 2019 Application, and stating his email address for service was [omitted for publication].

In his reply, K.L. agreed to child support and disputed J.B.’s entitlement to spousal support. He stated that J.B. had left over a year ago, works and is self- sufficient. K.L. counterclaimed for primary residence and day-to-day care of E. He stated it was in E.’s best interests to reside with him. [ 22 ] On February 3, 2020, J.B.’s December 31, 2019 Application (CEIS 1) and K.L.’s February 3, 2020 Reply (CEIS 4) were set for a first appearance in the [omitted for publication] Provincial Court on March 11, 2020 (CEIS 5). J.B. was not present but was represented by counsel.

K.L. appeared by telephone self-represented. The matter was adjourned to September 23, 2020. [ 23 ] On February 21, 2020, K.L. filed his first Form 4 Financial Statement (CEIS 6, 7). [ 24 ] The onset of the global COVID-19 pandemic caused the BC Provincial Health Officer to declare a public health emergency on March 17, 2020. On March 19, 2020, the Chief Judge announced the suspension of the regular operations of the Provincial Court of British Columbia at all of its locations.

[ 25 ] On March 14, 2020, K.L. picked up E. in [omitted for publication] and transported her to [omitted for publication] for parenting time during the 2020 school spring break. J.B. anticipated that E. would return to her care at the end of March or beginning of April 2020. K.L. unilaterally decided to keep E. in his care, citing the COVID-19 pandemic as justification. On June 26, 2020, J.B. drove to [omitted for publication] to pick up E.

She says K.L. was aware of her plans. [ 26 ] On June 23, 2020, K.L. filed an application in the [omitted for publication] Provincial Court of Alberta to replace Judge Fisher’s September 17, 2019 Order. On July 22, 2020, K.L. filed an affidavit in support of his June 23, 2020 Application to vary Judge Fisher’s September 17, 2019 Order. In this affidavit, K.L. stated he was concerned because he believed that J.B. was currently unemployed, refused to tell him her address or communicate with him at all and was residing in a two-bedroom apartment with E. and her two other children.

K.L. emailed J.B. a copy of his application documents but she either did not receive the email or did not open it. [ 27 ] On June 25, 2020, K.L. attended at the [omitted for publication] Provincial Court of Alberta before Judge M.C. Christopher. J.B. was unaware of the court proceedings and did not appear in person or by counsel or agent. At that time, K.L. obtained an Interim without Prejudice Parenting Order which replaced Judge Fisher’s September 17, 2019 Order. Judge Christopher’s June 25, 2020 Order stated: 1. The Final Parenting Order granted September 17, 2019 by the Honourable Judge F.C.

Fisher, is replaced by the within Order. 2. The Applicant, K.L., shall have the primary residential day-to-day care of the child, E. L., born [omitted for publication] (the "Child"). 3. The Respondent, J.B., shall have reasonable and generous parenting time with the Child upon 72 hours notice. 4. The parties shall share the transportation for the exchange of the Child, and shall exchange the Child at [omitted for publication] , Alberta. 5. The Respondent shall have further parenting time to include summer holidays in July 2020, but she shall return the Child to the Applicant not later than August 1, 2020. 6.

The Respondent shall have video chat or telephone access with the Child up to 4 days a week at a time that is agreed upon between the parties. The Respondent shall give the Applicant at least 24 hours' notice by email or text message only, of her proposed day and time for the call. 7.

Except for matters pertaining to the Child's residence and day to day residential care, the Applicant and Respondent shall share all powers, responsibilities, entitlements of guardianship and decision-making regarding the Child, including decisions regarding the following : a. education; b. extracurricular school activities; c. cultural upbringing; d. spiritual upbringing; e. with whom the Child will associate; f. whether the Child should work and if so, the details of the work; g. consent to health-related treatment for the Child; h. give consent of a parent or guardian; i. receive and respond to any notice to a parent or guardian; j. deal with any legal proceedings relating to the Child; k. appoint a person to act on behalf of the guardian in an emergency situation or when the Guardian is temporarily absent; In the event there is a dispute regarding decision making, the final decision will be made by the party who has day to day residential care of the child, the Applicant. 8.

The Applicant and Respondent are both entitled to receive any health, education or other information that may significantly affect the Child. 9. If a party or any other person on their behalf breaches this Order, then a Peace Officer will provide assistance to ensure that the offending party complies with the Order. Before enforcing this Order, a Peace Officer must first ensure that the party has been served with a copy of this Order. If not served, that party must be shown a copy of the Order by the Peace Officer and be given reasonable time to comply with the Order.

If the party fails or refuses to comply with this Order, the Peace Officer may do such lawful acts as may be necessary to give effect to the order including, if necessary, arrest, detain and bring the party at the earliest possible time before a Judge of the Provincial Court to show cause why the party should to be cited for civil contempt. 10. If the Peace Officer decides that compliance with the Order is not in the children's best interest, the Officer must prepare a report.

The Officer's report must include a statement describing the events and circumstances of the assistance provided and the reason for any non-enforcement of this Order. The parties each have the right to request, in writing, a copy of the report from the Peace Officer's law enforcement agency. On receiving a written request, the law enforcement agency must provide a copy of the report to the parties.

Privileged information must be removed from the report before it is released to the parties. 11. This matter is adjourned to July 30, 2020 at 9:30 am in Courtroom 6, [omitted for publication] Provincial Court, [omitted for publication], Alberta. 12. Rule 9.4(2)(

c) is hereby invoked. [ 28 ] Judge Christopher’s June 25, 2020 Order was filed as Exhibit 2 in the proceedings before me. J.B. says she was not aware of the court date or the existence of this order. Although K.L. emailed J.B. notice of his application, J.B. says she was in not in the habit of responding to K.L. immediately because, “he was always up to something. A lot of times I don’t answer him even if it bothers me.” [ 29 ] On June 26, 2020, J.B. arrived in [omitted for publication] to pick up E. K.L. did not make her available. J.B. called the police for assistance.

She showed them a copy of Judge Fisher’s September 17, 2019 Order. The officer advised J.B. that K.L. had a different order, namely the June 25, 2020 Interim without Prejudice Order giving K.L. primary care of E.

The officer told J.B. to “check her email.” J.B. returned to [omitted for publication] without E. because Judge Christopher’s June 25, 2020 Order did not authorize her to have holiday parenting time with E. until July. [ 30 ] On August 21, 2020, CEIS 1 and 4 were scheduled for hearing in the [omitted for publication] Provincial Court of British Columbia on September 23, 2020 (CEIS 9). [ 31 ] The issue of the parenting arrangement for E. returned to the [omitted for publication] Provincial Court of Alberta on August 24, 2020. Both parties attended on that day. The Honourable G.K.

Krinke found that K.L. had not demonstrated a material change of circumstances to warrant setting aside Judge Fisher’s September 17, 2019 Order. Judge G.K.

Krinke made the following Final Parenting Order (“Judge Krinke’s August 24, 2020 Order”) with respect to parenting arrangements for E .: WHEREAS: The Applicant, K.L., has applied for a parenting order with respect to the child: E.L., born [omitted for publication] (the “Child”) The Applicant and Respondent are guardians of the child by operation of the law: Parenting time means during which a guardian has the power to make day to day decisions affecting a child, including having day to day care and control of the child and supervising the child’s daily activities, whether the child is [in] the guardian’s presence or out of the guardians; [sic] presence with the guardians’ express or implied consent AND UPON THE COURT finding that the Applicant did demonstrate a material change of circumstances to the bests interests of the Child since the Order of Judge Fisher was granted on September 17, 2019 (the "Fisher Order''); AND UPON noting the parties consent to the variations to this order from the Fisher Order; IT IS HEREBY ORDERED THAT: 1.

The Applicant's application filed June 23, 2020 is dismissed and the Orders granted by the Honourable Judge Christopher on June 25, 2020 on [sic] July 30 2020 are terminated. 2. The Respondent, J.B. shall have primary day to day care of the Child. 3. The Applicant, K.L., shall have reasonable and generous parenting time with the Child on 72 hours' notice.

The exchange of the Child is to be at [omitted for publication], B.C., however, in the event that the Respondent is not able to travel to the exchange point, the Applicant shall be responsible for picking up and returning the Child for all parenting time to which this paragraph applies. 4. The Applicant shall also have further parting [sic] time to include : a. The month of August each year ; b. The full Christmas break on odd-numbered years, with the Respondent having parenting time for the full Christmas break on even- numbered years; and c. Spring Break as per the B.C. school holiday

schedule . For all holiday parenting time, the exchange of the child will take place the day after school is out at [omitted for publication], B.C. with both parties travelling to the exchange point. 5. The Applicant shall have video chat or telephone access with the Child for up to 4 days a week at a time that i s agreed upon between the parties. The Applicant shall provide the Respondent at least 24 hours' notice, by email or text message only of the Applicant's proposed day and time for the call. 6.

All communication between the parties shall be by email or text message only and shall only be about topics relating to the Child. 7. Except for matters pertaining to the Child's residence and day to day residential care the Applicant and Respondent shall share all powers, responsibilities, entitlements of guardianship and decision-making regarding the Child, including decisions regarding the following:

a. the child’s education; b. the child’s extracurricular school activities; c. the child’s cultural upbringing; d. the child’s spiritual upbringing; e. whom the child will associate with; f. whether the child should work and, if so, the details of the work; g. give consent to health-related treatment for the child; h. give consent of a parent or guardian where required; i. receive and respond to any notice to a parent or guardian; j. deal with any legal proceedings relating to the child; k. appoint a person to act on behalf of the guardian in an emergency situation or when the guardian is temporarily absent; and l. receive any health, educations [sic] and other information that may significantly affect the child.

In the event there is a dispute regarding decision making, the final decision will be made by the party who has day to day residential care of the Child, being the Respondent. 8. The Applicant and the Respondent are both entitled to receive any health, education or other information that may significantly affect the Child. 9. If either of the parties or any other person on their behalf , breaches any terms of this Order, then a Peace Officer shall provide assistance to ensure that the offending party complies with is [sic] terms.

Before enforcing the terms of this Order, a Peace Officer must first ensure that the party has been served with a copy of this Order. If not served, the party must be shown a copy of the Order by the Peace Officer and be given reasonable time to comply with its terms.

If the party fails or refuses to comply with this Order, the Peace Officer shall do such lawful acts as may be necessary to give effect to its terms including, if ne cess ary, arrest, detain and bring the party at the earliest possible time before a Justice of the Court of Queen’s Bench to show cause why the party should not be cited for civil contempt. 10. If the Peace Officer decides that compliance with the Order is not in the children's best interest, the Officer must prepare a report.

The Officer's Report must include a statement describing the events and circumstances of the assistance provided and the reason for any non-enforcement of this Order. The parties each have the right to request, in writing, a copy of the Report from the Officer’s Law Enforcement Agency. On receiving a written request, the Law Enforcement Agency must provide a copy of the Report to the parties. Privileged information must be removed from the Report before it is released to the parties. 11.

Rule 9.4(2)(©) [sic] is hereby invoked. [ 32 ] Judge Krinke’s August 24, 2020 Order was filed on October 5, 2022, as Exhibit 3 in these proceedings before the [omitted for publication] Provincial Court of British Columbia. I have appended it to these Reasons for Judgment. [ 33 ] In her January 27, 2021 Affidavit (CEIS 19), J.B. averred: . . . 8. On August 24, 2020, Mr. L. and I appeared in front of the Honourable Judge Krinke and we agreed to change the primary care back to me. Since then, I have resumed exercising primary care of the child, in [omitted for publication], British Columbia.

She attends school in [omitted for publication]. 9. There are no further court dates set in the Alberta court action. . . . [ 34 ] On September 22, 2020, J.B. retained her current legal counsel, Mr. J. Rempel, to represent her. She filed an Application to Obtain an Order in the [omitted for publication] Provincial Court of British Columbia seeking those orders set out in

Schedule A of her application, namely: 1. Under s. 74 of the Family Law Act ( FLA ), that the court accept jurisdiction over the child [E.F.L. born [omitted for publication ]. 2. Under s. 75 of the FLA , that the court recognize the order of the Honourable Judge Fisher of the Provincial Court of Alberta made September 17, 2019. 3. The Court is satisfied that J.B. and K.L. are the guardians of the child under s. 39(1) of the FLA . 4. Under s. 40(3)(

a) of the FLA J.B. will have all of the parental responsibilities for the child. 5. The Respondent, K.L., shall have reasonable and generous parenting time with the Child on 72 hours' notice. The exchange of the

Child is to be at [omitted for publication], Alberta, however; in the event that the Applicant, J.B. is not able to travel to the exchange point, K.L. will be responsible for picking up and returning the Child . 6. The Respondent shall also have further parenting time to include : a. The full month of August each year; b. The first half of the Christmas break to include Christmas Day in odd years and the second half of Christmas break in even years; c. The Easter break .

The exchange of the Child will take place the day after school is out at [omitted for publication], Alberta with both parties traveling to the exchange point . 5. [sic] The Respondent shall have video chat or telephone access with the Child up to 4 days a week at a time that is agreed upon between the parties.

The Respondent shall give the Applicant at least 24-hours notice, by email or text message only, of the Respondent's proposed day and time for the call . 6. [sic] K.L. will not change the residence of the child from [omitted for publication], British Columbia without first obtaining the written approval of all guardians and persons having contact, unless he or she has provided all guardians and persons having contact with 60 days' written notice, and no one receiving such notice has filed an application under ss. 59 , 60 or 69 of the FLA to maintain contact or prohibit relocation within 30 days of receiving the notice. 7. [sic] K.L. will pay to J.B. $ 5000 on or before December 1, 2020, being expenses reasonably and necessary incurred as a result of K.L.'s non-compliance with the Order of the Honourable Judge Fisher, made September 17, 2019 . 8. [sic] K.L. will pay to J.B. $ 5000 on or before December 1, 2020 for the benefit of E.F.L. whose interests were affected by K.L.'s non-compliance with the Order of the Honourable Judge Fisher, made September 17, 2019. 9. [sic] K.L. will pay a fine of $ 5000 to the Clerk of the Court at the [omitted for publication] Court Registry on or before December 1, 2020 for non-compliance with the Order of the Honourable Judge Fisher, made September 17, 2019. 10. [sic] Upon being satisfied that a person has been wrongfully denied parenting time or contact with a child by the child's guardian, this Court orders under s. 231(4) of the FLA that a police officer apprehend the child E.F.L. and take the child to J.B. 11. [sic] For the purpose of locating and apprehending a child in accordance with this order, under s. 231(6)of the FLA a police officer may enter and search any place he or she has reasonable and probable grounds for believing the child to be. [ 35 ] In her September 22, 2020 Application, J.B. did not claim spousal support or child support.

She references Judge Fisher’s September 17, 2019 Order and Judge Christopher’s June 25, 2020 Order made in the Alberta Provincial Court, but not Judge Krinke’s August 24, 2020 Order. [ 36 ] On September 23, 2020 the parties attended [omitted for publication] Provincial Court of British Columbia for a second appearance on J.B.’s December 31, 2019 Application (CEIS 1) and K.L.’s February 3, 2020 Reply (CEIS 4). J.B. appeared by telephone represented by her counsel, Mr. J. Rempel. K.L. appeared by telephone self-represented.

Judge Galbraith ordered the parties to file with the [omitted for publication] Court Registry and exchange with each other a new Form 4 Financial Statement, and adjourned the matter to November 25, 2020. [ 37 ] On October 6, 2020, J.B.’s legal counsel had K.L. personally served with a copy of the September 22, 2020 Application at his R. Residence (CEIS 11, 13). [ 38 ] On October 30, 2020, K.L. filed a Reply agreeing to J.B.’s application with respect to guardianship, but contesting her claim for sole parental responsibilities and financial penalties. K.L. counterclaimed for the following orders: 1. That under

Section 75 of the FLA , the court recognize [sic] the order of the Honourable Alberta Provincial Court (APC) Judge F.C Krinke granted 24 August 2020 (copy attached). 2. The Respondent [K.L.] notes there are three

(3) Alberta Provincial Court Orders that relate to these matters, and where the Applicant [J.B.] has provided the BC Court with the first two (2) orders it appears she has not provided the last and most recent order as referred to above. 3. The Respondent submits that where the first order granted 17 September 2019 provided the Applicant with day to day care of the child, the second order was granted after the Applicant left the child with the Respondent and the Respondent made application to have day to day care change back to him.

It is noted this was granted after the Applicant failed to appear (by phone) at that hearing. Finally, the Respondent believes the last order, granted by APC Judge Krinke is the most relevant as that Final Parenting Order was granted after the Respondent had acquired legal counsel, and discussions had taken place between the parties. 4. One change the Respondent would like to have included would be to have paragraph 4(

d) of that order be varied to read Spring Break rather than Easter Break. On making inquires online I believe that the [omitted for publication] [sic] school district has indicated their 2021 spring break will be between 15 - 26 March 2021 where the Easter break is only from 2 - 5 April 2021. 4 days long. The Respondent feels that with all the travel time involved, it would be unfair to E. and the Respondent for us to have a proper or fair visit if that were only for the Easter break . 5.

Further, the Respondent believes the pick-up and drop-off location should remain as being [omitted for publication], BC as the parties had previously mutually agreed, and as identified in Judge Krinke's order as that location has better access to services and

accommodation than [omitted for publication] [sic], Alberta, especially in winter. 6. The Respondent also denies being responsible for breaching the Order of judge F.C. Fisher as alleged by the Applicant in paragraphs 7,8 and 9 of the Applicant's

Schedule A as the Respondent made an application that was subsequently granted by the Court and was only following the process of pursuing lawful proceedings . [ 39 ] In his October 30, 2020 Reply (CEIS 14), K.L. indicated his address for service was [omitted for publication], Alberta; however, his telephone number remained “[omitted for publication].” [ 40 ] On November 3, 2020, the court registry sent J.B. and K.L. notice it had scheduled CEIS 11 and 14 into [omitted for publication] Provincial Court of British Columbia on December 9, 2020 (CEIS 15). [ 41 ] On November 16, 2020, J.B. filed her second Form 4 Financial Statement (CEIS 16, 17). [ 42 ] On November 24, 2020, K.L. filed his second Form 4 Financial Statement in the [omitted for publication] Provincial Court proceedings ([omitted for publication]) wherein he identifies his address for service as R.

Residence; telephone [omitted for publication], email: [omitted for publication]. [ 43 ] On November 25, 2020, the parties appeared in [omitted for publication] Provincial Court for a subsequent appearance on J.B.’s December 31, 2019 Application (CEIS 11) and K.L.’s February 3, 2020 Reply (CEIS 4), and a first appearance on J.B.’s September 22, 2020 Application (CEIS 11) and K.L.’s October 30, 2020 Reply (CEIS 14). Judge Malfair cancelled the December 9, 2022 appearance date and ordered the Judicial Case Manager

schedule a two-hour hearing on the issue of whether the [omitted for publication] Provincial Court of British Columbia had jurisdiction over E. with respect to CEIS 1, 4, 11 and 14. The next appearance was scheduled for December 16, 2020. [ 44 ] On December 16, 2020, the parties attended in the [omitted for publication] Provincial Court for trial. Legal Counsel J. Rempel appeared as counsel and agent for J.B.; K.L. attended by telephone self-represented. [ 45 ] Judge Galbraith adjourned the matter to the Judicial Case Manager to

schedule a two-hour hearing on whether the British Columbia court had jurisdiction over issues respecting E. The next appearance was scheduled for January 27, 2021. [ 46 ] On January 27, 2021, J.B. filed an affidavit in support of her application that [omitted for publication] Provincial Court of British Columbia retain jurisdiction over E. (CEIS 19) in these Family Law Act proceedings. [ 47 ] On January 27, 2021, the matter came before the [omitted for publication] Provincial Court to confirm the trial date. J.B. appeared represented by Mr. Rempel. K.L. appeared represented by Mr. K. Thomson.

Judge Galbraith confirmed the February 11, 2021 trial date of the jurisdictional issue and ordered the parties could adduce evidence by way of affidavit. [ 48 ] On January 28, 2021, J.B. filed a Notice of Motion seeking an order pursuant to s. 74(3) of the Family Law Act that the Provincial Court of British Columbia accept jurisdiction over E. (CEIS 20). [ 49 ] The jurisdictional issue came before Judge Galbraith for trial on February 11, 2021 (CEIS 21).

He found the [omitted for publication] Provincial Court of British Columbia did have jurisdiction over E. with respect to the matters pled in CEIS 1, 4, 11 and 14. Judge Galbraith ordered (CEIS 24): 1. Under FLA 74(2), the court finds that it has jurisdiction over E.F.L., born [omitted for publication] (the "Child"). 2. Und e r FLA 74(3), the court finds that it is appropriate to exercise jurisdiction over the Child. 3.

K.L. will complete, file with the Registry of this Court, and deliver to J.B. a sworn Financial Statement in Form 4 of the Provincial Court (Family) Rules, including all attachments listed on page 2 of that Form and his 2020 income tax return by April 23, 2021. 4. The file is adjourned to April 28, 2021 at 9:30 am. [ 50 ] On April 27, 2021, K.L. filed his third Form 4 Financial Statement in the [omitted for publication] Provincial Court proceedings (Court File [omitted for publication]) wherein he identifies his address as the R.

Residence, telephone: [omitted for publication], email: [omitted for publication] . [ 51 ] This matter came before the [omitted for publication] Provincial Court on April 28, 2021 for a subsequent appearance. Both parties appeared represented by their respective legal counsel. Judge Galbraith ordered K.L. to provide a new financial statement with additional information and directed the Judicial Case Manager to

schedule a one-day Family Case Conference. [ 52 ] On May 13, 2021, the court registry mailed to J.B., care of her legal counsel J. Rempel, and K.L. at [omitted for publication], notice of the August 24, 2021 Family Case Conference (CEIS 23). [ 53 ] On August 24, 2021, this matter came before the [omitted for publication] Provincial Court for a Family Case Conference. J.B. attended with her legal counsel J. Rempel. Mr. K. Thomson appeared as K.L.’s legal counsel and agent.

The matter was adjourned to September 29, 2021 for a Family Management Conference. [ 54 ] On September 29, 2021, this matter came before the [omitted for publication] Provincial Court for a Family Management Conference. J.B. was present and represented by her legal counsel Mr. J. Rempel; K.L. attended self-represented. Judge Galbraith ordered, among other things, that K.L. complete, file with the [omitted for publication] Court Registry, and deliver to J.B. a sworn Financial Statement in Form 4 of the Provincial Court (Family) Rules , including all attachments set out on page two of Form 4, by November 1, 2021.

The matter was adjourned to October 27, 2021 (CEIS 25).

[ 55 ] These matters came before the [omitted for publication] Provincial Court on October 27, 2021 for a subsequent appearance. J.B. attended represented by legal counsel Mr. J. Rempel. K.L. did not appear; however, he was represented by legal counsel T. Kates. Judge Galbraith adjourned the matter to November 24, 2021. [ 56 ] These matters came before the [omitted for publication] Provincial Court on November 24, 2021 for a subsequent appearance. J.B. attended represented by legal counsel J. Rempel. K.L. did not attend; however, he was represented by legal counsel. Judge Galbraith directed that the Judicial Case Manager

schedule a one-day trial on CEIS 1, 4, 11, 14, and adjourned the matter to February 3, 2022, for a Pre-trial Conference. [ 57 ] On November 30, 2021, the Judicial Case Manager scheduled a trial of CEIS 1, 4, 11 and 14, to proceed on February 28, 2022, March 1, 2, 3, 2022, with a Pre-trial Conference on February 3, 2022 (CEIS 26).

The court registry emailed the Scheduling Notice (CEIS 26) to the parties. [ 58 ] On December 20, 2021, J.B. filed an Application for a Case Management Order (CEIS 28) seeking a monetary penalty of $5,000 from K.L. due to his failure to comply with two court orders requiring him to file a financial statement. In support of this application, Mr. Rempel, legal counsel for J.B., filed his assistant’s affidavit (CEIS 29) attaching email, sent to K.L. at [omitted for publication] and to K.L.’s legal counsel at the time, Mr. K.

Thomson. [ 59 ] On January 12, 2022, J.B.’s Case Management Application came before the [omitted for publication] Provincial Court. J.B. was present, represented by legal counsel; K.L. attended self-represented. Judge Galbraith directed the Judicial Case Manager to

schedule a court appearance, confirm the trial date and to

schedule J.B.’s application (CEIS 28) prior to February 21, 2022. [ 60 ] On January 12, 2022, the Judicial Case Manager scheduled a one-hour hearing on J.B.’s Application for a Case Management Order (CEIS 28) to proceed on February 11, 2022. The Scheduling Notice (CEIS 30) was emailed to the parties at the respective email addresses on file with the court. [ 61 ] On February 3, 2022, this matter came before me for a Pre-trial Conference. J.B. was not present, but J. Rempel appeared as her counsel and agent. K.L. appeared self-represented. At that time I ordered (CEIS 34): 1.

J.B. will complete, file with the Registry of this Court, and deliver to K.L. a sworn Financial Statement in Form 4 of the Provincial Court (Family) Rules, including all attachments listed on page 2 of that Form by February 18, 2022; 2. K.L. will provide the following documents to counsel for J.B. by February 18, 2022: a. His 2016 tax return and income tax notice of assessment assessment [sic ]; b. His 2017 tax return ; c. His 2018 tax return and income tax notice of assessment ; d. His 2019 tax return ; e. His 2020 tax return and income tax notice of assessment of assessment [sic]; and f.

Proof of 2021 income . [ 62 ] On February 7, 2022, J.B.’s legal counsel Mr. J. Rempel filed his assistant’s affidavit attaching a copy of Judge Krinke’s August 24, 2020 Order (CEIS 31). [ 63 ] On February 11, 2022, J.B.’s Application for a Case Management Order (CEIS 28) came before the [omitted for publication] Provincial Court for a hearing. Mr. J. Rempel appeared as counsel and agent for J.B.; K.L. appeared self-represented.

At that time, Judge Galbraith adjourned CEIS 1, 4, 11, 14 and 28 to February 28, 2022, being the first day of trial. [ 64 ] On February 24, 2022, K.L. filed an Application for Case Management Order Without Notice or Attendance (CEIS 33), seeking leave to attend the trial by electronic communication because he was ill and tested positive with COVID-19 on February 13, 2022. In his application, K.L. sets out his address as the R. Residence; Telephone: [omitted for publication]; Email: [omitted for publication].

On March 1, 2022, at my direction, K.L. provided the court with a copy of his positive COVID-19 test (CEIS 35). [ 65 ] On February 17, 2022, K.L. filed his fourth Form 4 Financial Statement in the [omitted for publication] Provincial Court proceedings (File [omitted for publication]) wherein he identifies his address as the R. Residence.

The Financial Statement was sworn in [omitted for publication], Alberta on January 25, 2021. [ 66 ] On February 24, 2022, I granted K.L. leave to appear via MS Teams for his upcoming trial dates February 28 to March 4, 2022, inclusive. [ 67 ] On February 28, 2022, CEIS 1, 4, 11, 14 and 28 came before me for trial in the [omitted for publication] Provincial Court. J.B. appeared represented by Mr. J. Rempel; K.L. appeared by MS Teams self-represented. The matter was scheduled on the March 2022 assize. The court gave priority to other matters and the trial of this matter did not proceed on February 28, 2022.

The court adjourned this matter to March 3, 2022. [ 68 ] On March 3, 2022, J.B. appeared before me represented by her legal counsel Mr. J. Rempel; K.L. appeared remotely. I heard J.B.’s interim application for child support and at its conclusion, made an Interim without Prejudice Order with respect to child support. K.L. gave evidence under affirmation remotely. He testified: a. For most of his life, he worked seasonally landscaping;

b. Years ago he worked as a surveyor, but he never made it beyond the bottom rung of that profession; c. In 2018 he obtained a Class 1 driver’s licence; d. For two years K.L. worked for Step Energy Services as a fracturing pump operator in the natural gas industry; e. He used his Class 1 licence while working at Step Energy Services, but he has not used it since; f. He was on medical leave and receiving short-term disability (“STD”) benefits for seven months in 2020. K.L. said, “I got very sick, and I also had mental trauma from it”.

He says that his doctor diagnosed him as suffering depression and heightened anxiety arising from his long work hours, minimal sleep and the toxic work environment. In other words, K.L.’s disability was in the nature of a mental, rather than physical, illness; g. With the onset of the COVID-19 pandemic, Step Energy Services laid off all its employees working in K.L.’s division; h. After his short-term disability benefits expired, K.L. received Employment Insurance for four months; i. K.L. has difficulty driving for long periods of time and is unable to work as a long-haul truck driver; and j.

Since the beginning of 2021, K.L.’s only source of income has been his own incorporated landscaping business (which also does snow clearing in winter). [ 69 ] On March 3, 2022, I found K.L. to be a resident of Alberta and imputed to him a Guideline income of $60,000. I ordered on an interim without prejudice basis that: 1.

K.L. shall pay to J.B. the sum of $505 per month for the support of the child [E.F.L., born [omitted for publication]] commencing on April 1, 2022 and continuing on the first day of each and every month thereafter, for as long as the child is/are eligible for support under the Family Law Act or until further court order; 2. K.L. shall provide to J.B. the following documents by June 1, 2022 : a. His 2016-2021 income tax returns ; b. His 2020 and 2021 corporate financial statements . 3. Child-support payments to J.B. will be made via E-transfer ; 4.

The file is adjourned to the judicial case manager to set a one-day trial. [ 70 ] On June 8, 2022, J.B. filed her third Form 4 Financial Statement in these proceedings. [ 71 ] On July 15, 2022, the Judicial Case Manager scheduled a trial of CEIS 1, 4, 11 and 14 on the October 3, 4, 5 and 6, 2022 assize with a Trial Preparation Conference on September 13, 2022. The Scheduling Notices for the trial and Trial Preparation Conference documents were distributed by the court registry to the parties by email on July 20, 2022. [ 72 ] At some point in July 2022, K.L. separated from his then partner J.C.

She accused him of domestic violence, which he denied. J.C. obtained an Emergency Protection Order (“EPO”) in Alberta. This EPO granted J.C. the right to reside in the R. Residence. In his Affidavit filed August 29, 2022 in the King’s Court Proceedings ([omitted for publication]), K.L. states he paid the mortgage and utilities for the R. Residence. He states: . . . 9. The EPO has given the Applicant [J.C.] the right to reside in the Family Home. However, the Applicant has not been making any of the payments towards the home.

When I was forced to leave the Family Home I was only able to take a minimal amount of my belonging [sic] from the Home. 10. I have been the one primarily responsible for paying the mortgage and utilities at the Family Home. The Applicant would occasionally provide some financial assistance, but historically throughout the term of our relationship I paid the mortgage and all the bills. 11.

Since the Date of Separation, I have continued to fund the Family Home, while being forced to couch surf with my [omitted for publication] daughter. . . . [ 73 ] K.L. did not advise J.B. that he no longer had a residence for E. in advance of his August 2022 holiday parenting time with E. When J.B. called to have a video chat with E., she was not in the R.

Residence . [ 74 ] In his August 29, 2022 Affidavit filed in the King’s Court Proceedings ([omitted for publication]), K.L. attached as Exhibit B a copy of his bank statement indicating that between June 1, 2022 and August 19, 2022, K.L. made significant cash deposits into, and withdrawals from, his bank account: Exhibit 4. [ 75 ] K.L. did not appear at the Pre-trial Conference on September 13, 2022, either in person, or by counsel or agent. I adjourned the matter to the October 3, 2022 trial date. On September 16, 2022, Mr.

Rempel sent K.L. an email advising K.L. that he had missed the September 13, 2022 Pre-trial Conference and made reference to the October 3, 2022 trial date. [ 76 ] On October 3, 2022, J. Rempel appeared before me as counsel and agent for J.B. and K.L. appeared self-represented by MS

Teams. K.L. said he could not afford the expense of travelling to [omitted for publication] for the trial. K.L. sought permission to attend the trial remotely, which J.B. opposed. I ordered that if K.L. wanted to fully participate in the trial, he had to attend in person. If he chose not to attend in person, he could still listen to the proceedings remotely, but he could not tender evidence or cross-examine witnesses. [ 77 ] On October 4, 2022, K.L. filed an Application for Case Management Order without Notice of Attendance (CEIS 43) seeking an order he be permitted to appear at the trial by telephone.

I denied K.L.’s application and ordered he attend court at 9:30 am on October 5, 2022, in person, if he wished to participate in the trial. If he did not attend in person, he could listen to the proceedings remotely, but he could not participate in the trial by calling evidence or cross-examining witnesses. In his October 4, 2022 Application (CEIS 43), K.L. does not suggest that he was unaware of the trial dates. [ 78 ] CEIS Documents 1, 4, 11 and 14 came before me for trial at 9:30 on October 5, 2022. J.B. appeared in person represented by her legal counsel Mr. J. Rempel; K.L. appeared by MS Teams. Mr. K.

Thomson, K.L.’s previous legal counsel, appeared as a friend of the court. K.L. submitted that he was unaware of the September 13, 2022 Pre-trial Conference and the October 3, 4, 5 and 6, 2022 trial dates. K.L. made an oral application to adjourn the trial on the basis he had not received adequate notice of the trial dates. Mr. Thomson confirmed that upon reviewing his file, it did not appear that K.L. was made aware of the October 2022 trial dates or the September 13, 2022 Pre-trial Conference date. I note the last time Mr.

Thomson appeared before this Court on this matter was August 24, 2021. [ 79 ] I was satisfied that on July 20, 2022, the court registry distributed electronically by email the Scheduling Notices for the September 13, 2022 Pre-trial Conference and the October 3, 4, 5 and 6, 2022 trial to the parties. The court registry sent K.L.’s Scheduling Notices to him directly at his email address at [omitted for publication]. Also, Mr. Rempel’s legal assistant sent K.L. an email on August 8, 2022, attaching the scheduling notices for the September 13, 2022 Pre-trial Conference and the October 3, 4, 5 and 6, 2022 trial.

On September 16, 2022, Mr. Rempel sent an email to K.L. with respect to issues he wanted to discuss at the trial. In his email to K.L., Mr. Rempel stated, “the trial is coming up starting on October 3, and there are some issues I want to raise with you”. K.L. denied having received Mr. Rempel’s emails; however, confirmed the [omitted for publication] address to which Mr. Rempel had sent the emails was correct. Mr. Rempel confirmed that he had never received any indication the emails to K.L. had not been delivered. K.L. resiled from his assertion he did not receive his emails when Mr.

Rempel pointed out that on October 4, 2022, K.L. had actually responded to the September 16, 2020 email. [ 80 ] I was more than satisfied K.L. was aware of the September 13, 2022 Pre-trial Conference and the October 3, 4, 5 and 6, 2022 trial dates. I denied his oral application for an adjournment. Family law trials are ordinarily in-person proceedings.

As he had chosen not to attend in person, I refused to permit K.L. to actively participate in the trial; however, I allowed him to passively attend by MS Teams or telephone. [ 81 ] The trial of this matter commenced at 2:00 p.m. on October 5, 2022, and continued on October 6, 2022. K.L. attended the trial by MS Teams both days. I denied him the right to tender evidence or cross-examine J.B., the applicant’s only witness. I did, however, take into consideration all evidence he had previously placed before the court in the form of affidavits and financial statements, as well as his testimony on March 3, 2022.

I also invited K.L. to provide oral submissions at the end of the trial on the evidence J.B. had tendered. RECOGNITION OF JUDGE KRINKE’S AUGUST 24, 2020 ORDER [ 82 ] Division 7 of the Family Law Act concerns extraprovincial matters respecting parental arrangements. It reads:

Definitions and

interpretation 72

(1) In this Division: "extraprovincial order" means an order of an extraprovincial tribunal that is similar in nature to an order respecting guardianship, parenting arrangements or contact with a child; "extraprovincial tribunal" means a court or tribunal, outside British Columbia, having authority to make an extraprovincial order. [ 83 ] On February 11, 2021, Judge Galbraith determined that E. is habitually resident in [omitted for publication], British Columbia with her mother J.B. and determined the Provincial Court of British Columbia has jurisdiction to adjudicate parenting arrangements with respect to E. [ 84 ]

Part 4 of Division 7 of the Family Law Act addresses extraprovincial matters respecting parenting arrangements.

Section 73 of the Family Law Act sets out the purposes of the division as follows: Purposes 73 The purposes of this Division are as follows: (

a) to ensure that court applications respecting guardianship, parenting arrangements or contact with a child are determined on the basis of the best interests of the child; (

b) to avoid the making of orders respecting guardianship, parenting arrangements or contact with a child, respecting the same child, in more than one jurisdiction; (

c) to discourage child abduction as an alternative to determining by due process the guardianship of, or parenting arrangements with respect to, a child; (

d) to provide for effective enforcement of orders respecting guardianship, parenting arrangements or contact with a child, and for the recognition and enforcement of extraprovincial orders.

[ 85 ] S ection 74(1) of the Family Law Act applies where there is a possibility that an order regarding a child may be made in more than one jurisdiction. Determining whether to act under this

Part 74

(1) This

section applies if an order respecting guardianship, parenting arrangements or contact with a child may be made, respecting the same child, in more than one jurisdiction.

(2) Despite any other provision of this Part, a court may make an order under this Part respecting guardianship, parenting arrangements or contact with a child only if one of the following conditions is met: (

a) the child is habitually resident in British Columbia when the application is filed; (

b) the child is not habitually resident in British Columbia when the application is filed, but the court is satisfied that (

i) the child is physically present in British Columbia when the application is filed, (ii) substantial evidence concerning the best interests of the child is available in British Columbia, (iii) no application for an extraprovincial order is pending before an extraprovincial tribunal in a place where the child is habitually resident, (iv) no extraprovincial order has been recognized by a court in British Columbia, (

v) the child has a real and substantial connection with British Columbia, and (vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in British Columbia; (

c) the child is physically present in British Columbia and the court is satisfied that the child would suffer serious harm if the child were to (

i) remain with, or be returned to, the child's guardian, or (ii) be removed from British Columbia.

(3) A court may decline to make an order under this

Part if the court considers that it is more appropriate for jurisdiction to be exercised outside British Columbia. [ 86 ]

Section 75 of the Family Law Act sets out the circumstances in which the court must recognize an extraprovincial order. An extraprovincial order is defined in 72(1) as an order of an extraprovincial tribunal that is similar in nature to an order respecting guardianship, parenting arrangements, or contact with a child. Recognition of extraprovincial orders 75

(1) A court must recognize an extraprovincial order if all of the following apply: (

a) the extraprovincial tribunal would have had jurisdiction to make the order under the rules that are applicable in British Columbia; (

b) each party to a proceeding in which the extraprovincial order was made had (

i) reasonable notice that the order would be made, and (ii) a reasonable opportunity to be heard respecting the order; (

c) the extraprovincial tribunal was required by law to consider the best interests of the child; (

d) it would not be contrary to public policy in British Columbia to recognize the order.

(2) On recognition by a court, (

a) an extraprovincial order has the same effect, and may be enforced, as if it were an order made under

section 45 [orders respecting parenting arrangements] , 51 [orders respecting guardianship] or 59 [orders respecting contact] , as applicable, and (

b) the court may, if necessary to give effect to the extraprovincial order, make any order that the court may make under this Act.

(3) If an application is made to recognize more than one extraprovincial order and the orders conflict, the court must recognize the order that is most consistent with the best interests of the child. [ 87 ]

Section 37 of the British Columbia Family Law Act and s. 18 of the Alberta Family Law Act both require the best interest of the child be the only consideration in family law proceedings with respect to parenting arrangements. Both statutes enumerate similar factors a court must consider in the “best interests of the child” test. They read as follows: British Columbia Family Law Act , SBC 2011, c. 25 Best interests of the child

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only .

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including 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.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor. [Emphasis added.] Alberta Family Law Act , SA 2003, c F-4.5 Best interests of the child 18

(1) In all proceedings under this Part [except proceedings under

section 20 ] , the court shall take into consideration only the best interests of the child.

(2) In determining what is in the best interests of a child, the court shall (

a) ensure the greatest possible protection of the child’s physical, psychological and emotional safety, and (

b) consider all the child’s needs and circumstances, including (

i) the child’s physical, psychological and emotional needs, including the child’s need for stability, taking into consideration the child’s age and stage of development, (ii) the history of care for the child, (iii) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, (iv) the child’s views and preferences, to the extent that it is appropriate to ascertain them, (

v) any plans proposed for the child’s care and upbringing, (vi) any family violence, including its impact on (

A) the safety of the child and other family and household members, (

B) the child’s general well-being, (

C) the ability of the person who engaged in the family violence to care for and meet the needs of the child, and (

D) the appropriateness of making an order that would require the guardians to co-operate on issues affecting the child, (vii) the nature, strength and stability of the relationship (

A) between the child and each person residing in the child’s household and any other significant person in the child’s life, and

(

B) between the child and each person in respect of whom an order under this Part would apply, (viii) the ability and willingness of each person in respect of whom an order under this Part would apply (

A) to care for and meet the needs of the child, and (

B) to communicate and co-operate on issues affecting the child, (ix) taking into consideration the views of the child’s current guardians, the benefit to the child of developing and maintaining meaningful relationships with each guardian or proposed guardian, (

x) the ability and willingness of each guardian or proposed guardian to exercise the powers, responsibilities and entitlements of guardianship, and (xi) any civil or criminal proceedings that are relevant to the safety or well-being of the child.

(3) In this section, “family violence” includes behaviour by a family or household member causing or attempting to cause physical harm to the child or another family or household member, including forced confinement or sexual abuse, or causing the child or another family or household member to reasonably fear for his or her safety or that of another person, but does not include (

a) the use of force against a child as a means of correction by a guardian or person who has the care and control of the child if the force does not exceed what is reasonable under the circumstances, or (

b) acts of self-protection or protection of another person.

(4) For the purpose of subsection (2)(b)(vi), the presence of family violence is to be established on a balance of probabilities. [ 88 ] In his Reasons for Judgment handed down February 11, 2021, Judge Galbraith recognized that both the Alberta and British Columbia Provincial Courts had jurisdiction over guardianship of and parenting arrangements for E. He states: . . . [6] The August 24, 2020 order gives Mr. L. various parenting time. That it was the parties' expectation that Ms.

B. would be living in [omitted for publication] is illustrated by the fact that in paragraph 4 of the order it references an exchange point in [omitted for publication], British Columbia, presumably chosen as a half-way point between the parents' residences. So, as of August 2020, there is an order in the Provincial Court of Alberta, apparently consented to by Mr. L., that agrees for E. to be living with Ms. B. in [omitted for publication], and, in fact, E. has lived here since then.

Other than a period in the spring and summer of 2020 - again, the dates of which are in dispute - E. has lived in [omitted for publication] primarily since December of 2018. Ms. B.’s affidavit states, and I find, that it is her settled intention to continue to live in [omitted for publication]; and, therefore, pursuant to s. 72(2)(b)(ii) and (iii), I find that E. is habitually residing in [omitted for publication], B.C. with Ms. B., by order of the court in Alberta and with the consent of Mr.

L., and I, therefore, find that E. is habitually resident in British Columbia, specifically in [omitted for publication], British Columbia. So, pursuant to s. 74(2)(a), the requirement for habitual residency is met. [7] I must now consider s. 74(3), whether or not the court should decline to make an order under this part because the court considers it more appropriate for jurisdiction to be exercised outside British Columbia. In short, because there is a more appropriate forum than in British Columbia. I find there is not.

There are orders made outside British Columbia, in Alberta; some made in the past six months. [8] I must, however, consider E.'s best interest. She has lived in [omitted for publication] for most of the past two years of her life, so most of the evidence regarding her current life will be in [omitted for publication]. I do not doubt that there are connections in Alberta, too, but the most recent ones, including those people who could give evidence about E.'s current life, are in [omitted for publication].

The factors of E.'s current relationships and the recent history of her care suggest that the closest links are in [omitted for publication]. [9] With respect to the convenience of the parties, there will be significant inconvenience to one party or the other no matter which jurisdiction is chosen. Mr. L. has a slightly higher income and may, therefore, be able to absorb the travel costs for litigation somewhat better than Ms. B., but I hasten to add that that is not a primary factor in this decision.

The primary factor in deciding that I ought not to decline jurisdiction lies with E.'s best interest and the evidence with respect to her recent care and recent life. [10] I, therefore, do not decline to take jurisdiction in this matter and I find that, pursuant to s. 74, the Provincial Court of British Columbia does have jurisdiction to deal with the issues between the parties involving E . . . . [ 89 ] Judge Galbraith recognized the validity of Judge Krinke’s August 24, 2020 Order in deciding the jurisdictional issue before him in [omitted for publication] Provincial Court on February 11, 2022. [ 90 ] I find the criteria set out in s. 75 (1) (a), (b), (

c) and (

d) of the British Columbia Family Law Act have been made out and this Court recognizes as valid and enforceable Judge G.K. Krinke’s Order made in the [omitted for publication] Provincial Court of Alberta on August 24, 2020 in Court File [omitted for publication] . Pursuant to s. 75(2) (a), Judge Krinke’s August 24, 2020 Order has the same effect, and may be enforced, as if it were an order made under s. 45 , 51 or 59 of the Family Law Act , S.B.C. 2011, c. 25 . I note that pursuant to s. 75(2) (

b) of the Family Law Act , this Court may, if necessary, may make orders to give effect to Judge Krinke’s August 24, 2020 Order. CHANGING JUDGE KRINKE’S AUGUST 24, 2020 ORDER

[ 91 ] In her September 22, 2020 Application (CEIS 11), J.B. sought an order to vary the existing parenting arrangements to provide her with all of the parental responsibilities for E. under s. 40(3) (

a) of the Family Law Act (CEIS 11). She says this is warranted because she has the majority of the parenting time. She says that she allowed E. to have the COIVD-19 vaccine and learned later that K.L. did not agree with her decision . [ 92 ] At trial, J.B. testified she also wanted K.L. to exercise parenting time with E. differently than she set out in her September 22, 2020 Application (CEIS 11). She now proposes : a. K.L. would continue to have parenting time with E. for the entire month of August as set out in Judge Krinke’s August 24, 2020 Order; b.

K.L. would continue to have parenting time with E. for the entire winter school break in alternating years as set out in in Judge Krinke’s August 24, 2020 Order; c. J.B. would have all other parenting time with E. – which I infer to mean that J.B. would like to eliminate that condition of Judge Krinke’s August 24, 2020 Order which gives K.L. “reasonable and generous parenting time with the Child on 72 hours' notice”; and d.

K.L. is solely responsible for picking up and dropping off E. in [omitted for publication], BC, in order to exercise his parenting time. [ 93 ] J.B. says that E. hates the long drive between [omitted for publication] and [omitted for publication]. She finds this drive particularly onerous when K.L. has parenting time during the school winter break (in the odd years) and then three months later in the school spring break. [ 94 ] J.B. says the change to the Judge Krinke August 24, 2020 Order is justified in light of K.L.’s repeated breaches of previous court orders. These breaches include: a.

K.L. withheld E. from J.B. after the end of March 2020 at the onset of the COVID-19 outbreak; b. K.L. withheld E. from September 1 to 8, 2021, in order to attend a wedding. K.L. had E. for his parenting time during August 2021 pursuant to the Judge Krinke August 24, 2020 Order. He gave J.B. 72 hours’ notice of his intention to exercise “reasonable and generous parenting time” during the first week in September 2021 so E. could accompany him to a wedding.

J.B. did not agree with K.L. extending his parenting time for this purpose because it prevented E. from starting school on time in [omitted for publication], which I gather would have been on or about September 6, 2021. She advised K.L. that she was driving to [omitted for publication] to pick up E. on September 1, 2021. When she arrived in [omitted for publication] on that date, K.L. did not appear with E. He told J.B. he was keeping E. to attend the wedding. J.B. asked assistance from both the [omitted for publication] and [omitted for publication] police detachments.

J.B. drove to [omitted for publication] and met with a police officer near K.L.’s residence. The officer conducted a wellness check on E. and reported to J.B. that E. was fine. This was not J.B.’s concern. She wanted the police to apprehend E. and deliver E. into her care. Upon consulting with their legal department, the [omitted for publication] Police were unable to say that K.L. was breaching Judge Krinke’s August 24, 2020 Order and declined assistance. J.B. returned to [omitted for publication] without E. K.L. flew E. to [omitted for publication] on September 8, 2021; c.

J.B. says that in 2021, the [omitted for publication] School District extended the usual winter school break because of COIVD-19. As it was an “odd year”, K.L. had parenting time with E. for the entire winter (Christmas) school break. K.L. interpreted Judge Krinke’s August 24, 2020 Order to mean he had parenting time for the entire extended winter school break.

J.B. was of the view the “Christmas school break” excluded the extension period . [ 95 ] In his Reply and Counterclaim filed October 30, 2020 (CEIS 14), K.L. asked the Provincial Court of British Columbia to recognize as valid and enforceable Judge Krinke’s August 24, 2020 Order.

At the conclusion of the trial, K.L. submitted that the parties’ parenting arrangements set out in that order should persist with one exception: K.L. agreed the parties ought to transition E. between households by having one parent responsible for picking up E. and the other parent dropping her off. [ 96 ] K.L. denies he was in breach of the August 24, 2020 Order and his response is set out in his October 30, 2020 Reply and Counterclaim (CEIS 14). [ 97 ]

Section 76 of the Family Law Act gives this Court jurisdiction to supersede a valid extraprovincial order where there has been a change in circumstances affecting the best interests of the child and the child is habitually resident in British Columbia. It reads: Superseding extraprovincial orders 76

(1) On application, a court may make an order that supersedes an extraprovincial order that has been recognized under

section 75 [recognition of extraprovincial orders] if satisfied that (

a) the child would suffer serious harm if that child were to (

i) remain with, or be returned to, the child's guardian, or (ii) be removed from British Columbia, or (

b) a change in circumstances affects, or is likely to affect, the best interests of the child and subsection (2) of this

section applies.

(2) For the purposes of subsection (1) (b), an order may be made only if (

a) the child is habitually resident in British Columbia when an application is filed, or (

b) the child is not habitually resident in British Columbia when the application is filed, but the court is satisfied that

(

i) the circumstances described in section 74 (2) (b) (i), (ii), (

v) and (vi) [determining whether to act under this Part] apply, and (ii) the child no longer has a real and substantial connection with the place where the extraprovincial order was made. [98] I must determine pursuant to s. 76(1)(

b) whether there is a change in circumstances that affects, or is likely to affect, the bestinterests of E. CHANGE OF CIRCUMSTANCES [99] When J.B. filed her September 22, 2020 Application, she did not identify any change of circumstances since Judge Krinke’sAugust 24, 2020 Order. If fact, she did not even disclose the existence of this order in her application. [100] In Williamson v. Williamson, 2016 BCCA 87, the B.C.

Court of Appeal held that when dealing with s. 47 of the Family Law Act,a material change in circumstances must be established before the court can embark on a fresh inquiry into the best interests of the child.In Gordon v. Goertz, (SCC), the Supreme Court of Canada held that a “material change” is one that has “altered thechild’s needs or ability of the parents to meet those needs in a fundamental way” and was “either not foreseen or could not havereasonably been contemplated by the judge who made the initial order”.

The focus of the application is the best interests of the child, notthe interests and rights of the parents: Gordon v. Goertz, at paras. 13, 49. [101] In J.L.W. v S.G.W., 2021 BCSC 1822 , Justice G.P. Weatherill held: [21] In order to vary the Current Parenting Time, the respondent must first meet the threshold of showing a material change incircumstances warranting a variation of the Final Order. A material change in circumstances is required for im

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