T. v. C., 2022 BCPC 18

Citation: T. v. C. 2022 BCPC 18 Date: 20220204 File No: 6373 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: T.J.T. APPLICANT AND: J.J.C. RESPONDENT RULING ON APPLICATION OF THE HONOURABLE JUDGE L.E. DOERKSEN Counsel for the Applicant: M. Prestwich, by telecommunication Counsel for the Respondent: A. Rosenke, by telecommunication Place of Hearing: [omitted for publication], B.C.

Date of Hearing: January 11, 2022 Date of Ruling: February 4, 2022 Introduction [ 1 ] Throughout this decision I will refer to the Applicant as the “mother” and the Respondent as the “father”. Both parties are the parents of one child named [omitted for publication], who is [omitted for publication] years of age.

The mother lives in [omitted for publication], British Columbia, and the father lives in [omitted for publication], Alberta. [ 2 ] The mother has applied to this Court for remedies under the Family Law Act, [ SBC 2011] c. 25 (“ FLA ”), such as guardianship, primary residence of the child, child support and spousal support. However, before these matters can be adjudicated, this Court must determine if it has jurisdiction to hear this matter and if it does, if this Court should nonetheless decline to take jurisdiction. Facts [ 3 ] The mother and father began a relationship in [omitted for publication] in 2013.

In 2015, the parties purchased a trailer in [omitted for publication] for recreational purposes. The child was born to them in [omitted for publication]. The child resided entirely in [omitted for publication] until 2020. [ 4 ] In 2020, the parties discussed moving to [omitted for publication] permanently and it was arranged by the parties that the mother would move first in June 2020, with the father to follow a couple of months later.

The father assisted in moving the mother’s and child’s belongings, including the child’s bed, to [omitted for publication]. [ 5 ] The father, however, either never intended to move, or once the mother had moved, changed his mind and did not move to [omitted for publication] but remained in [omitted for publication] in the family home. The parties separated. [ 6 ] After this separation, the parties amicably exchanged parenting time for the child on an approximate 60-40 basis with the child being 60% with the mother. The parents have shared the driving requirement when the child is exchanged between them.

However, because of considerable highway construction between [omitted for publication] and [omitted for publication] in the last two years that often saw the highway closed, the father asked for and received the consent of the mother to have a 50-50 week on-off schedule. The mother contends that this

schedule was only meant to be temporary, until the highway was not subject to construction closures. The father refused to return to the 60-40

schedule when the highway re-opened. [ 7 ] The mother applied to this Court on March 19, 2021, for the child to primarily reside with her in [omitted for publication], British Columbia, and to have the parenting time returned to the previous arrangement. [ 8 ] The father subsequently filed a family application in Alberta on July 16, 2021.

The father has not filed a reply to the mother’s application and submits that this Court does not have jurisdiction over this matter, or that this Court should decline to exercise its jurisdiction, as Alberta is the more appropriate jurisdiction for this matter to be adjudicated. [ 9 ] Both parties have supplied affidavits as to the events that led to the mother’s move to [omitted for publication] and their eventual separation. The affidavits also speak to more substantive issues concerning the ability of the other to parent the child.

Legislation [ 10 ] Sections 72 - 74 of the FLA sets out the legislative framework for this Court to consider in determining jurisdictional issues. The relevant portions are set out below:

Definitions and

interpretation 72 . . .

(2) For the purposes of this Division, a child is habitually resident in the place where the child most recently resided (

a) with his or her parents, (

b) if the parents are living separate and apart, with one parent (

i) under an agreement, (ii) with the implied consent of the other parent, or (iii) under an order of a court or tribunal, or (

c) with a person other than a parent on a permanent basis for a significant period of time.

(3) The removal or withholding of a child without the consent of a guardian does not affect the child's habitual residence unless the guardian from whom the child is being removed or withheld acquiesces or delays in applying for an order of a court or an extraprovincial tribunal. 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; . . . 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. Positions of the Parties [ 11 ] The mother submits that the child is habitually resident in British Columbia as the child was residing predominantly with her in [omitted for publication] with the consent of the father.

The child only now lives slightly more with the father because she agreed to a 50-50 shared parenting arrangement on a temporary basis that the father is refusing to honour by returning to the 60-40 shared parenting arrangement. [ 12 ] The father submits that the child is not habitually resident in British Columbia and remains solely a resident of Alberta. The father points out that the child has always resided in [omitted for publication], has all his family connections in [omitted for publication] and has an Alberta health care card in his name.

Since their separation, the father has enrolled the child in a daycare and pre-school. [ 13 ] Further, the father submits that the mother’s connection (and thus the child’s connection) to [omitted for publication] is tenuous as she has never lived there before, has no family in [omitted for publication] and has only recently moved there.

The mother, it is suggested, could easily move back to [omitted for publication]. [ 14 ] The father submits that even if this Court finds that the child is a habitual resident of [omitted for publication], this Court should decline to exercise jurisdiction because if this matter proceeds to a contested hearing, most of the witnesses reside in [omitted for publication]; thus, it would be more convenient to conduct a hearing in [omitted for publication].

Analysis [ 15 ] The father engineered a separation with the mother by agreeing to move to [omitted for publication] and once she was out of the family residence, he ended the relationship. This is clear in his affidavit wherein he describes considerable conflict in the relationship that led to his decision to end the relationship. [ 16 ] The father states at paragraph 44 of his affidavit filed August 11, 2021, that the mother moved to [omitted for publication] after the parties separated.

I reject this assertion. [ 17 ] The mother’s affidavit filed July 27, 2021, sets out text communications between them that supports the finding that the father agreed to move the family to [omitted for publication]. The father wanted to remove the mother from his life but in order to do so, he had to support and assist with the move of the mother and child to British Columbia. The mother would not have agreed to move without the child.

[ 18 ] Moving the mother and child to [omitted for publication] was a convenient device to end the relationship. [ 19 ] Fortunately, since the separation, the parties have been mostly amicable in their dealings with each other and sharing the responsibility and time each has with the child. Thankfully, the child spends a substantial amount of time with each parent. [ 20 ] However, this matter arose as a result of the father changing the previously-agreed-to parenting arrangement. The parties agreed to a

schedule wherein the child resided 60% of the time with the mother. The father was able to get the mother to agree to a 50-50 arrangement because of the inconvenient highway construction and then refused to return to the previous schedule. [ 21 ] It is disingenuous for the father to state that the child spends slightly more time with him than the mother when he manipulated the current arrangement to suit him. In any event, the amount of time a child spends with one parent is not determinative of this matter. See White-Fourgere v.

Holman, 2006 BCSC 1606 , at para. 25 . [ 22 ] Before this Court can act, it must be determined if the child is habitually resident in British Columbia. Section 72(2) sets out circumstances that can support a finding that the child is habitually resident in this province. [ 23 ] If the parents are living separate and apart, as is the case here, then this Court may find that the child is residing with one parent if there is an agreement or consent of the other parent.

The father agreed with the mother to move the child – and therefore the residency of the child – when he agreed to move the entire family to [omitted for publication]. [ 24 ] Further, the father consented to the child spending a substantial amount of time with the mother in [omitted for publication] , at one point more than 50% of the time with the mother in [omitted for publication].

Interestingly, there is no evidence to suggest that the father offered, encouraged, or wanted the mother to move back to [omitted for publication] so that this issue with their child could be avoided. [ 25 ] The father has pointed out that the child has been enrolled in daycare and in pre-school. Although these may be entirely appropriate for the father to do, this was all done after the separation so the father could claim that the child has a stronger tie with Alberta than British Columbia. However, a child can be resident in two jurisdictions. See Johansson v.

Janssen , 2020 BCSC 1738 . [ 26 ] As the father agreed to move the family to [omitted for publication] and then after separation, agreed that the child could spend a substantial time with the mother in [omitted for publication] in a shared parenting arrangement, I find that the child is habitually resident in British Columbia. [ 27 ] Even if the child is habitually resident in this province, a further question must be asked as required by s. 74(3) of the FLA : is it more appropriate that the courts in Alberta exercise jurisdiction in this matter? [ 28 ] The father points to the fact that if this matter were to proceed to trial, the majority of witnesses would be from [omitted for publication] and would have to travel to [omitted for publication] to testify.

It is asserted that the mother would have fewer witnesses and it would therefore be more convenient that the matter be heard in Alberta. [ 29 ] [Omitted for publication] and [omitted for publication] are approximately 160 kms apart, connected by Canada’s number one highway with many four lanes and passing lanes.

Winter road conditions are cited as a potential obstacle to the father and his witnesses attending to [omitted for publication] for a hearing. [ 30 ] It is difficult to give much weight to this assertion given that the father is a co-owner of the trailer in [omitted for publication] that the mother has now made her residence.

Further, it does not appear that the winter weather and the recent highway construction has deterred many Albertans from making their way to [omitted for publication] for recreational or other purposes. [ 31 ] What is clear is that the father is in an economically superior position to the mother and if there are challenges for the father and his witnesses to travel to [omitted for publication] from [omitted for publication] , then those same challenges would be faced by the mother going the opposite direction.

Between the two parties, the father is in a far better financial position to bear the travel costs involved. [ 32 ] Whether a party has acted in good faith is a factor to be considered and I find it determinative here. It is disingenuous for the father to complain about jurisdiction when he agreed to move the family to [omitted for publication] and agreed to a child-sharing arrangement that would keep the mother in [omitted for publication].

It would be inappropriate for the father to be given a strategic advantage over the mother when he has engineered the situation the mother finds herself in. [ 33 ] It must be stated that at this point the only issue being determined is jurisdiction. Deciding that this Court should exercise jurisdiction does not mean that the mother has a legal advantage or that there is any presumption that the child will primarily reside with her.

This will become a significant issue as the child is approaching school age. [ 34 ] It must also be stated that this Court has not attempted to look to the future and guess as to which party is more likely to succeed on the issues of primary residence or parenting time. [ 35 ] This Court has made orders in the past wherein primary residence of a child (or the child’s relocation) is determined to be with the parent who resides outside of the Province of British Columbia or, although within this province, at a considerably further distance than 160 kms.

The mother should not presume that the finding of jurisdiction in her favour means that she will be successful on the other substantive issues. Decision [ 36 ] For the reasons stated above, this Court finds it is appropriate to take jurisdiction in this matter.

_______________________________ The Honourable Judge L.E. Doerksen Provincial Court of British Columbia