G.R. v. A.P. Date:, 2018 BCPC 25

Citation: G.R. v. A.P. Date: 20180122 2018 BCPC 25 File No: F-9756 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: G.R. APPLICANT AND: A.P. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE

Counsel for the Applicant: K. Walkinshaw Counsel for the Respondent: K. Heinrichs Place of Hearing: North Vancouver , B.C. Date of Hearing: January 16, 2018 Date of Judgment: January 22, 2018 INTRODUCTION [ 1 ] This is an application by A.P. to set aside the ex parte order of The Honourable Judge Dyer made November 7, 2017 which prevented her from removing the child, I.R.P., born [omitted for publication], from the jurisdiction of this court. Ms. P. also seeks an order to allow her and the child to remain in Colorado pending a hearing on the merits. BACKGROUND [ 2 ] Mr. R. was born in British Columbia. Ms.

P. was born in Colorado. In 2014, the parties met in Mexico where they were living at the time. [ 3 ] In May 2014, the parties began to cohabitate. [ 4 ] On January 28, 2015, the child I. was born. [ 5 ] In November 2015, Mr. R. and Ms. P., along with the child, moved to Whistler, B.C., where Mr. R. commenced employment. [ 6 ] From January to November 2016, the parties lived in Pemberton, B.C. In December 2016, the parties moved to Squamish, B.C. where they leased a home. [ 7 ] On October 23, 2017, the parties separated and Ms. P. and the child left the Squamish house and went to stay with Mr.

R.’s parents. [ 8 ] On November 2, 2017, Ms. P. and the child went to stay in hotels in Vancouver and Whistler. [ 9 ] On November 6, 2017, Mr. R. filed the following: 1. An Application to Obtain an Order with respect to parenting time. 2. A Notice of Motion to prohibit the removal of the child and to seek parenting time, returnable November 7, 2017. [ 10 ] Ms. P. attached as Exhibit R to her affidavit, sworn December 2, 2017 and filed December 4, 2017, copies of text messages that were exchanged between her and Mr. R. on November 6, and 7, 2017.

A portion of the text messages exchanged on November 6, 2017 starting at 6:55 p.m. went as follows: Mr. R.: I have an appointment! I was there today. Court opens at 9:30 AM tomorrow and I have to be there. Ms. P.: for what? Mr. R.: To sit in front of a judge Ms. P.: I don’t understand to file for a divorce? For what though? Mr. R.: All the papers of already been filed today Ms. P.: For what? I don’t understand Mr. R.: For me to be given my legal right to spend time with [I.]. Ms. P.: Oh ok Mr. R.: That is step one until the proper court process is happening. That is the beginning of the proper court process.

Next you’ll be notified and you have a choice what to do from there. Ms. P.: Oh ok. [ 11 ] Ms. P. states in her affidavit at paragraph 61: I woke up in a panic at approximately 4:00 a.m. on November 7, 2017. Thinking about our situation, the dangers [I.] was in, the Applicant’s continual physical and psychological abuse, threats to my life, the fact that my visitor’s visa expires on February 1, 2018, that I cannot work in Canada, that I have no financial or emotional support in BC was scary and overwhelming. My stress had manifested to my body and my knuckles were visibly bleeding and I was emotionally spent.

At approximately 7:30 a.m. that morning, I

purchased plane tickets for [I.] and I to travel to my family in Colorado where I knew I could stay for as long as I needed and I wouldreceive the support that [I.] and I desperately need. [12] Exhibit M to Ms. P.’s affidavit is a copy of the airline tickets that were purchased online and emailed to her on November 7,2017 at 7:34 a.m. The tickets indicated a departure time of 3:15 p.m. that same day. [13] On November 7, 2017, Mr. R. appeared before The Honourable Judge Dyer. I have the benefit of a transcript of theproceedings.

A number of orders were made but the relevant one, which I will refer to at times as the “non-removal order”, was asfollows: The Mother shall not remove the infant child, [I.R.P.] (hereinafter referred to as the “Child”) born [omitted for publication], from theJurisdiction of this Court without first obtaining the written approval of the applicant, Father or a Court Order permitting same, save andexcept for a holiday purpose to a place and for a time approved of by the Father prior to departure and on the understanding that at theconclusion of said holiday the Child is to be returned by the Mother to the Province of British Columbia.

Later that day, Ms. P. and the child left for Colorado. [14] Judge Dyer’s order was not filed until November 8, 2017. Ms. P. did not receive a copy of the order until November 9, 2017,which was sent to her by email. [15] On November 16, 2017, Ms. P. filed a Reply and Counterclaim, seeking orders dealing with child support, expenses, supervisedparenting time, parental responsibilities, that the child reside in Colorado and for Mr. R. to undergo drug testing and counselling. [16] On December 4, 2017, Ms. P.’s application to set aside Judge Dyer’s order was filed.

DISCUSSION [17] These proceedings are still in their infancy. Mr. R. still has to file a Reply to the Counterclaim. Both parties need to file aFinancial Statement. Ms. P. needs to specify what expenses she is seeking to be paid. The parties need to complete the parenting afterseparation program or file proof of completion with the court. A Family Case Conference is set for March 12, 2018. [18] The only matter before me is Ms. P.’s application to set aside Judge Dyer’s order. [19] This matter was argued based on affidavit evidence only. Ms. P. is currently in Colorado and did not attend court. Mr.

R. filedaffidavits in response. Family Court Rule 13(3) allows me to permit the use of affidavit evidence for the purposes of this hearing and onthis occasion, I will allow such. The Position of Ms. P. [20] Ms. P. advanced a number of arguments, some of which relate to the final issues between the parties. The gist of her position asit relates to the application to set aside the non-removal order is as follows: 1. It is in the child’s best interests to remain in Colorado pending the final hearing in this matter. 2. Mr. R. failed to make full and frank disclosure when he sought the ex parte non-removal order.

Best Interests of the Child [21] Ms. P. has been the primary care giver since birth. This is not a matter that is in dispute. During the relationship, Mr. R. workedwhile Ms. P. stayed at home to look after the child. [22] Ms. P. is in Canada on a visitor’s visa. A copy of that visa was put into evidence and it discloses a visa expiry date ofFebruary 9, 2018. A condition on the visa states that Ms. P. must leave Canada by 2018/02/09. Ms. P. argues that because she mustleave Canada the child should accompany her. [23] Another condition on the visa states that Ms.

P. is prohibited from engaging in employment in Canada. Ms. P. is able to work inColorado. Ms. P. says that Mr. R. has not paid her any support and so out of financial need, she must leave Canada. [24] I note that the visa document also indicates that Ms. P.’s stay in Canada can be extended. The visa document states that inorder to receive a new visa prior to the expiration of the existing visa, an application for renewal should be made at least 30 days beforethe expiry date of Ms. P.’s visitor status. [25] When the parties separated, Ms. P. and the child stayed with Mr. R.’s parents.

That arrangement lasted for a few days beforeMs. P. and the child went to stay at various hotels. The lease on the Squamish home was due to expire on December 1, 2017. Ms. P. feltthat she had nowhere to live and could not afford to stay in hotels. Ms. P. is able to stay with her parents in Colorado. She argues thatthe prospect of a stable home in Colorado is in the best interests of the child. [26] Ms. P. advances other arguments as well, citing incidences of family violence, inappropriate sexual behavior and drug use.

Ifind those considerations to be more relevant though to the issue of parenting time and parental responsibilities. Full Disclosure on the Ex Parte Application [27] The decision C.A.S. v. T.S.R., 2009 BCPC 362 states at paragraph 25: [25] Ordinarily, an application to set aside an order granted ex parte is brought back before the judge who made it. Where a new

judge hears such an application, the hearing proceeds de novo as to both the facts and the law. However, that judge ought not todischarge or dissolve the order solely because he or she might have exercised his or her discretion in a different way. The authorities forthat are Waruk v. Waruk, (BC CA), [1996] B.C.J. No. 2282 (C.A.); Gulf Islands Navigation Ltd. v. Seafarers'International Union of North America (Canadian District) et al. (1959), (BC CA), 28 W.W.R. 517 (B.C.C.A.); andWestminster Credit Union v. United Brotherhood of Carpenters and Joiners of America, Local 1251 (1984) (BCSC), 55 B.C.L.R. 369 (S.C.).

Rather, the inquiry raised by the application to set aside an order granted ex parte focuses upon whetherthe appropriate evidence was put before the judge who made it at the first instance. [28] I am mindful that Judge Dyer sits as a “senior judge” of this court and so is not available on a full-time basis. As such, I amsatisfied that this matter need not return before Judge Dyer as that may cause undue delay. [29] The C.A.S. case goes on to state: [31] The question that I must consider on Mr.

S.'s motion to set aside the ex parte orders is whether the material before me nowshows on a balance of probabilities that the evidence put before Judge Challenger (which I have just summarized above) is false and/orincomplete such that I can fairly conclude that truthful and/or complete information would and should have led Judge Challenger to havedeclined to grant the ex parte orders which she made. [30] An ex parte order should be set aside if the evidence put in support of the order was false, misleading or incomplete unless thecourt is satisfied that the order would have been granted in any event had truthful or complete information been provided. [31] In review of the transcript of the November 7, 2017 hearing before Judge Dyer, Mr.

R. told Judge Dyer that he informed Ms. P.that he was seeking an order to permit him to see the child and to prevent Ms. P. from travelling outside the country. Earlier in myReasons I set out the contents of a text message that passed between the parties on November 6, 2017. Mr. R. told Ms. P. that he wasseeking an order “(f)or me to be given my legal right to spend time with [I.].” Mr. R. did not mention in his text message that he wasseeking an order to prevent Ms. P. or the child from leaving the country. I am satisfied that Mr. R. did not advise Ms. P. that he wasseeking the non-removal order. [32] Mr.

R. also did not disclose to Judge Dyer any issues regarding his drug use or inappropriate sexual behaviour. Mr. R.’saffidavit indicates that he does not see these issues as a serious problem. Matters regarding drug use or inappropriate sexual behaviourare relevant to the question of parenting time and Judge Dyer refused to make any order regarding parenting time on an ex parte basis. Ido not see how those same matters are relevant to an application for a non-removal order. Therefore, I place little weight on the failureto disclose these matters to Judge Dyer. [33] What is clear to me is that Mr.

R. did not advise Ms. P. that he was seeking a non-removal order, contrary to what he told JudgeDyer. [34] I have to now consider whether Judge Dyer would still have made his order had he known that Mr. R. did not inform Ms. P. ofthe application for a non-removal order. That analysis will follow below. The Position of Mr. R. [35] Mr. R. argues that Ms. P. is not simply asking to set aside Judge Dyer’s order. He argues that Ms. P. is effectively seeking anorder to permit her relocation to Colorado without having sought court approval pursuant to the Family Law Act. [36] Mr. R. further argues that, if Ms.

P. and the child are allowed to remain outside this Court’s jurisdiction, Mr. R. will beeffectively limited to parenting time with the child by way of video calls only. Since it will likely be a number of months before ahearing will be held for a final order, Mr. R. argues that this will set a precedent that will influence any final parenting time order. [37] Mr. R. also argues that I must be wary of making any order that may affect the final outcome of these proceedings based oncontradictory affidavits where the parties have not been subject to cross-examination. [38] Mr.

R. has proposed the following order if the non-removal order remains in effect and I. is returned to British Columbia: 1. Mr. R. will submit to periodic drug testing 2. Mr. R. will pay for the costs of a home to be rented in Squamish, B.C. where Ms. P. and the child can reside. 3. On a without prejudice basis, Mr. R.’s income will be imputed at $175,000.00 and he will pay child support based on this. TheChild Support Guideline tables only go to a maximum income of $150,000.00. Beyond that, a formula is used to calculate the childsupport payable.

I have made use of an online calculator found at the following web address: http://www.justice.gc.ca/eng/fl-df/child-enfant/2017/look-rech.asp#Lookup That calculator provides me with a child support amount of $1,551.00 per month. 4. Mr. R. will make his best efforts to assist in Ms. P. obtaining a visitor’s visa to Canada. [39] Mr. R. says that this proposal will address any concerns regarding what is in the best interests of the child. He argues that thiswill also permit direct parenting time between him and the child, which is in the child’s best interests.

ANALYSIS [40] The order of Judge Dyer was made to ensure that Ms. P. did not leave the court’s jurisdiction. Judge Dyer expressed concernsthat Ms. P. made threats to relocate to the United States, and we know now that Ms. P. did relocate to the United States.

[ 41 ] Judge Dyer made reference to s. 65 of the Family Law Act and went on to discuss what parents must do “ if they are anxious to relocate to a different jurisdiction from the one in which they reside. ” [ 42 ] I note that s. 65 of the Family Law Act and the notice provision found at s. 66 only apply if there already exists a written agreement or an order respecting parenting arrangements or contact with the child: Family Law Act, s. 65(2)(b). Because there is no prior agreement or order, the applicable provision dealing with relocation is s. 46 of the Act . [ 43 ]

Section 46 does not prescribe a 60-day notice requirement such as is found in s. 66. However, there are certain portions of s. 46 that are relevant. [ 44 ] Section 46(1)(

c) reads: (

c) the child's guardian plans to change the location of that child's residence and the change can reasonably be expected to have a significant impact on that child's relationship with another guardian. [Emphasis added] [ 45 ] Section 46(2)(

b) reads:

(2) To determine the parenting arrangements that would be in the best interests of the child in the circumstances set out in subsection (1) of this section, the court . . . (

b) must not consider whether the guardian who is planning to move would do so without the child. [Emphasis added] [ 46 ] These provisions speak to what is being planned in the future. I find that s. 46 contemplates that a parent must seek court approval prior to a change in a child’s residence in circumstances where the change can reasonably be expected to have a significant impact on that child’s relationship with another guardian. [ 47 ] It is my view that the relocation of the child to Colorado will have a significant impact on her relationship with Mr. R. In those circumstances, Ms.

P. must seek court approval before the relocation occurs. [ 48 ] Mr. R. also suggested that Ms. P. purchased plane tickets to leave Canada on the morning of November 7, 2017 in order to circumvent an anticipated order granting Mr. R. parenting time. Without hearing Ms. P. testify regarding these circumstances, I am not prepared to make such a finding. The timing of these events nevertheless raises suspicions. [ 49 ] I also have concerns about the contradictory affidavit evidence presented to me.

If I set aside Judge Dyer’s order, the effect would be to permit the relocation, even if on an interim basis, and to limit Mr. R.’s parenting time primarily and possibly exclusively to video calls. Before I consider making an order with such significant effect, I need to hear from the parties in person and to have their evidence subjected to cross-examination. [ 50 ] The proposal made by Mr. R. addresses many of the concerns about Ms. P. living in Canada and the concerns about the best interests of the child. [ 51 ] As I have stated, I am satisfied that Mr. R. failed to make full disclosure to Judge Dyer.

In fact, by stating to the court that he advised Ms. P. that he was seeking a non-removal order, Mr. R. may have sought to deceive the court. I am not prepared to make a finding in that regard though since Mr. R. did not testify. [ 52 ] Ultimately, Judge Dyer was concerned that the child should remain within this court’s jurisdiction until the issue of relocation was dealt with. Those concerns were obviously justified since Ms. P. did leave B.C. with the child. [ 53 ] I find that Judge Dyer would still have made the non-removal order even if he knew that Ms. P. was not aware that the order was being sought. Ms.

P. was not entitled to relocate the child without prior court approval. Judge Dyer’s order was simply a confirmation of the state of the law. [ 54 ] As no order has been made pursuant to s. 46 to permit the relocation, the order of Judge Dyer will remain in effect until further court order or the agreement of the parties.

However, in order to ease the return of the child to British Columbia, I will, pursuant to Rule 20(4) of the Provincial Court (Family) Rules, suspend Judge Dyer’s order up to and including February 6, 2018, after which the order will become effective again. [ 55 ] Commencing February 1, 2018, Mr. R. will pay child support of $1,551.00 per month based on an imputed income of $175,000.00, but this payment may be varied based on financial disclosure to be provided. This order is made without prejudice to Ms. P.’s right to seek retroactive support. [ 56 ] Commencing February 1, 2018, Mr.

R. will submit to drug testing each month and he will need to provide a copy of the test results to Ms. P. within seven days after receipt of the test results. [ 57 ] G.R. will make his best efforts to assist A.P. to renew or obtain a visitor’s visa or any required documentation to permit her to reside in Canada. If, for whatever reason, Ms. P. is unable to return to Canada, she may want to pursue her application for the relocation of the child forthwith. [ 58 ] Should A.P. return to Canada, Mr. R. will pay for the costs to rent a home in Squamish, B.C., where A.P. and the child can reside. Ms.

P. will select the home but she will need to consult with Mr. R. If Mr. R. disagrees with the choice of the home, he may apply to this court for further directions or orders. [ 59 ] Before I conclude this matter, I must note that both counsel provided me with a book of authorities. All but one of these cases

dealt with applications for the relocation of a child, which is not the application before me. As such I have not cited those cases. [ 60 ] The one remaining case is Vanrootselaar v Jacobs , 2015 BCSC 2544 , which dealt with an application for the mother to return the children to the Province of British Columbia. The court noted that there was no compliance with the notice requirement set out in s. 66 of the Family Law Act , and the court was not prepared to allow an exemption to the notice requirements. An order was made for the mother to return the children to British Columbia.

This case supports the principle that the provisions of the Family Law Act must be complied with if the relocation of a child is being considered. ORDER [ 61 ] I order as follows: 1.

The following order of Judge Dyer made November 7, 2017 is suspended up to and including February 6, 2018, after which this order will become effective: The Mother shall not remove the infant child, [I.R.P.] (hereinafter referred to as the “Child”) born [omitted for publication], from the Jurisdiction of this Court without first obtaining the written approval of the applicant, Father or a Court Order permitting same, save and except for a holiday purpose to a place and for a time approved of by the Father prior to departure and on the understanding that at the conclusion of said holiday the Child is to be returned by the Mother to the Province of British Columbia. 2.

G.R. is found to be a resident of British Columbia and is imputed to have a gross annual income of $175,000.00. 3. G.R. will pay to A.P. the sum of $1,551.00 per month for the support of the child I.R.P., born [omitted for publication], commencing February 1, 2018 and continuing on the 1st day of each month thereafter until further order of this court or the agreement of the parties. 4.

The orders setting income and child support are made on a without prejudice basis and the parties may apply for a further determination of income and child support when financial information has been filed with this court by G.R., with a copy provided to A.P.. The orders setting income and child support are also made without prejudice to A.P.’s right to seek retroactive support. 5.

Pursuant to s. 222 of the Family Law Act , G.R. will obtain drug testing for the presence within him of any controlled substance as defined by the Controlled Drugs and Substance Act, S.C. 1996, c. 19 each and every month commencing February 1, 2018 and continuing on the 1st day of each month thereafter until further court order or the agreement of the parties, and G.R. will provide a copy of each drug test to A.P. within seven days after the receipt of the test results. 6.

G.R. will make his best efforts to assist A.P. to renew or to obtain a visitor’s visa or any required documentation to permit her to reside in Canada. 7. Should A.P. return to British Columbia, G.R. will pay for the costs of a home to be rented in Squamish, B.C., where A.P. and the child, I.R.P., can reside. A.P. will have the right to select the home but must consult with G.R. in the choice of the home. If G.R. does not agree with the choice of the home, he may apply to this court for further directions or orders regarding the choice of a home. [ 62 ] Mr. Walkinshaw will draft the order for Mr.

Heinrich’s approval as to form. [ 63 ] I am not seized of any further applications on this matter. _________________________ The Honourable W. Lee Provincial Court Judge