P.S.G. v. S.K.G. Date:, 2017 BCPC 138

Citation: P.S.G. v. S.K.G. Date: 20170419 2017 BCPC 138 File No: F38976 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Family IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: P.S.G. APPLICANT AND: S.K.G. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.J. FERRISS Counsel for the Applicant: Pir Indar P.S. Sahot

Counsel for the Respondent: M. Shergill Place of Hearing: Surrey , B.C. Dates of Hearing: September 26, 27, November 4, 8, 15, December 12,16, 19, 2016 Date of Judgment: April 19, 2017 [ 1 ] Mr. P.S.G. (“P.G.”) and Ms. S.K.G. (“S.G.”) were married on [omitted for publication] in India. It was an arranged marriage. P.G. came back to Canada after the marriage and sponsored S.G.

She arrived in Canada on November 14, 2009. [ 2 ] They have one child, P.S.G. (“P.”), who was born on [omitted for publication] in Surrey, B.C., and is currently five years of age. [ 3 ] The parties separated on [omitted for publication] when P.G. was charged with assaulting S.G. [ 4 ] Since the date of separation, P.G. has only seen P. on December 11, 2015, and a couple of times during the course of this trial. [ 5 ] P.G. claims that S.G. wrongfully removed P. from the Province of British Columbia to Winnipeg, Manitoba, without his consent.

His Application to Obtain an Order filed on May 16, 2016, asks for guardianship, contact or parenting time with P. and a non- removal order. In particular, he asks for parenting time with P. every week. [ 6 ] S.G. makes an initial objection to these proceedings and says that the British Columbia courts have lost jurisdiction over P. under the Family Law Act ( the “FLA”) because he was not “habitually resident” under s. 74 of the FLA when P.G. commenced this action.

P. has been living in Winnipeg, Manitoba, with her since December 29, 2015 and S.G. says that there was an oral agreement permitting her to move with P. to Manitoba if she did not testify at P.G.’s criminal trial. [ 7 ] In her Reply with counterclaim she further asks, if the court decides that British Columbia courts have jurisdiction over P., for orders granting her sole guardianship, allocation of all parental responsibilities, parenting time, child support and spousal support (both retroactive to the date of separation), permission to relocate to Manitoba with P., and permission to travel and apply for a passport without P.G.’s consent. [ 8 ] There is no dispute between the parties as to the following facts: 1.

P.G. was arrested on June 23, 2015 for allegedly assaulting S.G.; 2. P.G. was released on bail on June 24, 2015, the terms of which included the following: Condition 3: You will have no contact either directly or indirectly, nor will you communicate in any way with: S.K.G. or P.S.G. (P.), except as may be ordered by a Court of competent jurisdiction in the Family Division to enable access to your son.

Condition 4: You will not attend at or within 100 meter radius of . . . [the matrimonial home] for any reason, except for a single attendance as arranged by your Bail Supervisor in the presence of a Peace Officer for you to pick up personal belongings at that residence; 3. Upon his release, he lived at the home of his paternal uncle, Mr. G.S.G. (“G.G.”), and his family as he could not reside at the matrimonial home and he resides with them still; 4. S.G. and her father, Mr.

G.S.T. (“G.T.”), who was staying with her, moved from the matrimonial home at some point in early July 2015 and went to stay with her cousin, Mr. A.S.S. (“A.S.”); 5. Between June 24, 2015 and the end of July 2015, Mr. J.S.S. (“J.S.”), S.G.’s paternal uncle, had meetings and telephone calls with P.G. in an attempt to reconcile the parties. These discussions culminated in a meeting between P.G. and S.G. at a Tim Hortons at the end of July 2015. The parties did not meet again until December 11, 2015; 6.

There were also meetings between J.S., G.T., and G.G. between June 24, 2015 and mid-July 2015 while S.G. still resided in the matrimonial home; 7. At some point, P.G. became aware that S.G. was not living in the matrimonial home any longer and he applied for a variation of his bail terms so that he could attend at the matrimonial home; 8. The parties sold the matrimonial home in September 2015 and the sale closed on December 10, 2015; 9. On December 11, 2015, the parties, along with members of their extended families, met at the home of Ms. S.K.D. (“S.D.”), P.G.’s first cousin and the daughter of G.G.

The purpose of the meeting on December 11, 2015 was to distribute the proceeds of sale from the matrimonial home; 10. At the December 11, 2015 meeting, P.G. signed two passport applications for P.; 11. December 11, 2015 was the only time that P.G. saw P. between June 23, 2015 and December 2016; 12. S.G. left for Winnipeg, Manitoba, with P. on December 29, 2015. She has never returned to British Columbia except for the purposes of this trial;

13. P.G.’s trial date for the alleged assault on S.G. was scheduled for the end of April 2016. She did not attend at court that day and there was a stay of proceedings; 14. P.G. filed this Application to Obtain an Order in this matter on May 16, 2016, and he had made no application in family court regarding P. prior to that date; 15. P. was not physically present in British Columbia when P.G. commenced this application; and 16. There are no existing family court orders respecting P. Issues [ 9 ] The issues in this case are:

a) Was P. habitually resident in British Columbia when P.G. filed this application? In particular, did P.G. agree to, give his implied consent to or acquiesce in P. being moved to Manitoba on a permanent basis by S.G.?

b) If the parties agreed that S.G. could move with P. to Manitoba provided that she did not testify at the assault trial, is such an agreement enforceable?

c) If this Court has jurisdiction, what provisions in the FLA should be applied to determine whether or not S.G. may relocate with P. to Winnipeg, Manitoba?

d) Is relocation to Winnipeg, Manitoba, in P.’s best interests? Facts A. Circumstances of the Alleged Assault [ 10 ] S.G. gave evidence that there was family violence starting in 2010 when P.G. slapped her. She said that while they were together, he would twist her arm, kick her in the back and pull her hair. He would also tell her to keep the knives away from him in case he used one against her. [ 11 ] Both S.G. and G.T. said that she was unable to leave the home with P.G. being with her, and G.T. took P. to the park by himself when he was staying with them.

They also said that, at times, telephone contact between her and her family was only through P.G.’s cell phone and she could only talk to them when he was home. [ 12 ] S.G., G.T. and J.S. gave evidence of financial coercion in that she gave P.G. all of her earnings, and he was to pay the bills. They say that after P.G.’s arrest, they found the house was in foreclosure and the utilities were cut off. [ 13 ] P.G.’s evidence was that there was no family violence and they had a loving relationship. He denies that there were financial difficulties or that he restrained her freedom.

G.G. and S.D. support him in this. [ 14 ] On June 22, 2015, S.G. says that P.G. kicked her in the back and told her to make him dinner late at night. He also broke the SIM card for her cell phone. She went to work the next day but came home early because she says she was concerned about P. P.G. threatened to kill her, saying, “This is your last day.” He slapped her, twisted her arm, and threatened to leave the house with P.

She says that when he went to the washroom, she went out to call the police using his cell phone. [ 15 ] P.G. says there was a conspiracy as she made calls to A.S. and her brother around the same time as the call to the police. They came over to the matrimonial home at about the same time as the police. The next day S.G. went to the bank and signed P.G.’s name to gain access to the safety deposit box he had there. When he next went to the bank, the safety deposit box was empty. B. Events between June 23, 2015 and July 31, 2015 [ 16 ] Mr.

G.T. gave evidence that he came to Surrey the day after S.G. called the police, which would have been June 24, 2015. A.S. picked him up from the airport and brought him to the matrimonial home. He said his son and nephew were in Surrey when S.G. called the police. [ 17 ] G.T. says that while he was staying at the matrimonial home, P.G.’s family, including G.G., would come by and ask to have the charges dropped and they would arrange to sell the house.

G.G. says that S.G.’s family expressed to him how sorry they were that the police were called and that they should have gone through him to deal with any family issues. Generally the meetings occurred at the matrimonial home but there was one meeting at G.G.’s home that G.T. did not attend. [ 18 ] J.S. arrived in Surrey on or about June 28, 2015. He stayed a few days and then returned at the end of July 2015. He also testified that there was a meeting at G.G.’s house during which they tried to figure out how they could convince the parties to live together again.

P.G.’s family was concerned about the criminal charges pending against him and J.S. said, in fact, that was P.G.’s family’s primary concern. They wanted the charges dropped. [ 19 ] In his evidence in chief on September 27, 2016, he said that P.G. was not present at the first meeting and did not mention his presence at the July meeting. On cross-examination on November 4, 2016, he said P.G. was present at the July meeting. [ 20 ] J.S. said that after the separation, he attempted to “sort it out”, which meant he tried to get P.G. and S.G. to reconcile.

He would talk to P.G. about reconciling with her, but the next day, P.G. would be back at square one saying he did not want to reconcile with S.G. He says that after hours of talking to both of them, he arranged a meeting between P.G. and S.G. in the last week of July 2015 at Tim Horton’s. P.G. still did not want to live with her and J.S. heard him say to her, “Take your son and go to Winnipeg.” He tried to set up

another meeting but no one would come.

After that, there were no further meetings about reconciliation. [ 21 ] However, in an affidavit he filed in the court, J.S. says, “It was apparent that due to the on-going physical abuse and . . . [P.G.’s] alcohol abuse, their marriage had run its course and reconciliation was not possible. . . . [S.G.] did not wish to live with. . . [P.G.] as he had no intentions of resolving his alcohol and anger management related issues.” His evidence as to who would not reconcile in his viva voce evidence and his affidavit evidence is inconsistent, which casts some doubt on the reliability of his evidence. [ 22 ] In the last week of July, J.S. says that there was an agreement that S.G. would not testify against P.G., they would sell the matrimonial home, and P. would live with S.G. until he was 18 years old.

The agreement was negotiated between G.G. and S.G.’s relatives. [ 23 ] On cross-examination, G.T. was asked if P.G. had a right to make decisions about his son and he responded in the affirmative but said, “But P.G. sent his uncle [G.G.] to us.” His concern was that S.G. was left alone in Surrey, and that is why there was the agreement to allow her to move with P. to Winnipeg. [ 24 ] P.G. testified that, despite the “no contact” provision in his bail terms, S.G. continued to contact him between four and seven times per day.

She asked him where he was working, when he would be finished work, and said she wanted to reconcile with him. Sometimes he called her if he had missed her call. He said that she usually called from [omitted for publication] Restaurant where she worked. He also called [omitted for publication] to order food at times.

He says he would ask about P. when he spoke to her. [ 25 ] P.G. says he was under the impression that they were going to reconcile, but that he did not think they could do so until after the assault trial which was scheduled for late April 2016. [ 26 ] G.G. and S.D. testified that there was never any discussion of taking P. to Winnipeg, Manitoba, at any of those meetings and consequently no agreement. P.G. also says he did not enter into any such agreement. C. Events between July 31, 2015 and December 10, 2015 [ 27 ] There were no meetings between July and December 11, 2015 between J.S and P.G.

However, J.S. says he occasionally called P.G. between July and December 2015 to see if reconciliation was possible. [ 28 ] On December 11, 2015, the extended families of both parties came to Surrey to divide the proceeds of sale. J.S. received a phone call sometime in November 2015 from P.G. to come to divide the money on December 11, 2015. D. Events of December 11, 2015 [ 29 ] On December 11, 2015, S.G. and P.G. attended at the notary public’s office to sign documents and receive the proceeds of sale.

After that, they and P. went to the home of S.D., with G.G., G.G.’s wife and son, J.S., G.T. and A.S. [ 30 ] P.G. testified that when they met to divide the proceeds, there was no discussion about S.G. taking P. to Manitoba. He says he did sign a passport application for P. at that meeting because he was told that if he signed it, P.’s identification would be renewed. His evidence was that he thought they were going to get back together and P. would return to him. [ 31 ] G.T. recalled that gold was returned to them and the proceeds of the sale of the matrimonial home were divided.

He said it was clear the child would be with S.G. There was talk about S.G. leaving for Winnipeg, and he recalls G.G. saying that the mother has the right to have the child and “when he grows up he will come to us.” G.T. also recalled a discussion of whether P. could go to India and that “it could be arranged.” [ 32 ] Both G.T. and J.S. said the decision allowing S.G. to take P. to Manitoba was made before the December 11, 2015 meeting. However, it was re-stated in P.G.’s presence and he said nothing. G.T. said there was discussion about S.G. leaving for Manitoba because he was leaving as well.

They discussed where she would stay and it was determined she would go to her brother’s in Winnipeg since there was no other relative of hers in the Surrey area. P.G. was there at the house at the time. He did not say anything to them. [ 33 ] The witnesses for S.G. testified that at that meeting it was agreed that there would be no more court involvement and no more police involvement. G.T., G.G., J.S. and A.S. would make the decisions.

No mention was made of any of P.G.’s family having contact with P. [ 34 ] P.G., G.G. and S.D. all testified that there was no agreement for or discussion regarding P. moving to Manitoba. In fact, they say they had asked to see P. and S.G.’s relatives said they would make those arrangements. E. Events after December 11, 2015 [ 35 ] After the sale proceeds were distributed, P.G. says that S.G. stopped contacting him. [ 36 ] The assault trial was scheduled for the end of April, 2016. J.S. said that S.G. called him many times asking what she should do.

He told her that they had already agreed that she would not appear at the trial. He said that P.G. knew she was going to move to Manitoba as he told J.S. that. [ 37 ] When Crown entered a stay of proceedings with respect to the assault charge, P.G. then went to [omitted for publication] to ask where S.G. was. He was told she had stopped working there and he concluded she must have gone to Manitoba. He commenced this Application in May 2016.

Was P. “Habitually Resident” in British Columbia at the Commencement of this Court Action? [ 38 ] There is no dispute that P. was not physically present in British Columbia at the commencement of this court action and so s.

74(2) (

b) and (

c) of the FLA does not apply to this case. Only s. 74(2)(

a) of the FLA applies, which reads: 74(2) Despite any other provision of this Part, a court may make an order under this Part respecting guardianship, parentingarrangements 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 . . . [39] Section 72(2) of the FLA defines the term “habitual residence” as follows: 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. 72(3) The removal or withholding of a child without the consent of a guardian does not affect the child's habitual residence unless theguardian from whom the child is being removed or withheld acquiesces or delays in applying for an order of a court or an extraprovincialtribunal. [40] Therefore, unless S.G. can prove on a balance of probabilities that there was an agreement between her and P.G. or that P.G.gave his implied consent, acquiesced, or delayed in making this application, then P.’s habitual residence is British Columbia. [41] Counsel referred me to cases considering s. 74 of the FLA: Dhillon v.

Benipal, 2009 CarswellOnt 1742 (ONSC); Mehta v.Gandhi, 2016 ONSC 2453; Shortridge-Tsuchiya v. Tsuchiya, 2010 BCCA 61; D.M.M. v. D.F., 2015 BCPC 310 , 2015 BCPC0310; Stav v. Stav, 2012 BCCA 154, and Prucklmeier v. Thibault, 2015 BCSC 2264. However, each case is unique and depends on itsfacts. [42] The difficulty in determining whether P.G. knew and consented to the permanent removal of P. to Manitoba is that he did notovertly take

part in the negotiations. Neither did S.G. Both parties were surrounded by family members who were entrusted to decidewhat should happen. Once it was clear that reconciliation would not occur, the extended families proceeded to negotiate the break-up ofthe parties, much as they had done in arranging the marriage. [43] Given the disparity between the testimony of P.G.’s witnesses and S.G.’s witnesses, I must consider the corroborating evidenceto determine whether an agreement was made.

On a balance of probabilities, I do find that such an agreement was made, and based onhis own evidence, P.G. was well aware of that agreement for the following reasons: 1. P.G. testified that after June 23, 2015, S.G. would telephone him between four and seven times each day. He said that she told himshe wanted to reconcile and he believed her. He thought that reconciliation could only take place after the assault trial was completed. 2. P.G. knew S.G.’s telephone number as he called her back after missing her call. He also knew her work number at [omitted forpublication].

In addition to that, he had J.S.’s telephone number as he called him in November 2015 to come to the December 11, 2015meeting. The parties also had a realtor and a notary public who had contact with each of them for the sale of the matrimonial home. Even so, no efforts were made to have contact with P. except for the odd verbal request, which is denied by S.G.’s witnesses. 3. After the December 11, 2015 meeting, P.G. says that S.G. stopped telephoning him. P.G. still did nothing between the December 11,2015 meeting and May 2016 to commence court proceedings to obtain an order permitting him time with P.

He said he thought he couldnot obtain such an order because of the terms of his bail, which was incorrect. His bail conditions permitted such contact if there were afamily order in place. Additionally, he had already obtained a change in his bail terms on one occasion, so he knew he had otherremedies. 4. Only after the assault charge was stayed was this court action commenced. His evidence is that he telephoned the [omitted forpublication] Restaurant after the proceedings were stayed. When he found out S.G. was not working there, he immediately came to theconclusion she had gone to Manitoba and taken P.

He then commenced this action. [44] I find that P.G. would not have conducted himself in such a manner unless he knew an agreement had been made through G.G.allowing S.G. to relocate with P. to Manitoba if she did not testify against him at trial. Therefore, I find that there was an oral agreementin those terms between the parties. [45] This finding casts a poor light on the credibility of P.G. and his witnesses. Was the Oral Agreement Enforceable? [46] Having found there was an agreement, the issue then becomes whether the agreement is an enforceable agreement or void asbeing against public policy.

I asked counsel to provide me with their submissions on this issue, but they did not include this in theirwritten submissions. [47] In Hadfield v. Hadfield, (BCSC), the Supreme Court found that:

[8] Contracts to stifle prosecution are illegal and void: Leggatt v. Brown (1899), 30 O.R. 225 (Ont. Div. Ct.); Morgan v. McPhee(1908), (ON SC), 18 O.L.R. 30 (Ont. Div.Ct.); Fuller v. Stoltze (1938), (SK CA), 1 W.W.R. 241(Sask. C.A.).

Halsbury states the rule as follows (8 Hals. (3d) 136): An agreement to stifle or withdraw from a prosecution in respect of an offence of a public nature is against public policy and illegal,because the effect of it is to take the administration of the law out of the hands of the judges and to put it into the hands of a privateindividual to determine what is to be done in the particular case. [48] In the Hadfield case, there was a settlement agreement in which the mother agreed to orders that violated the father’s bail termsin his criminal case.

In finding that the settlement agreement was void for being contrary to public policy, the court determined that theprovisions of the settlement agreement must be considered together and, in that case, amounted to “an agreement to frustrate the bailorder of the Provincial Court and to interfere substantially with an ongoing prosecution.” The court found the agreement void on thatbasis. [49] The Hadfield case was followed in the case of K.(E.) v. K.(D.), 2003 BCSC 1296, another decision of our Supreme Court.

Inthat case, the parties entered into a settlement agreement in New Jersey which included a term that the father would pay child support tothe mother. As well, there was a term that a pending domestic violence complaint against the father would be dismissed upon theexecution of the agreement. The mother sought to have the child support arrears enforced in British Columbia and the father sought tohave the agreement set aside.

The court found the term of the agreement relating to dismissal of the domestic violence complaint to becontrary to public policy and refused to enforce the child support provisions. [50] The case was appealed to the B.C. Court of Appeal and overturned on the basis that the Supreme Court Judge had failed to giveappropriate weight to the importance of child support and the law of comity. The Court of Appeal distinguished the Hadfield case fromthe K.(E.) v.

K.(D.) case, but did not overturn it. [51] In applying the Hadfield decision and the K.(E.) v. (D.) decision to this case, I note that the agreement in this case does not dealwith child support and was made in British Columbia. The facts in this case are akin to the facts of the Hadfield case. Therefore,although I have found there was an agreement, I also find that agreement void for public policy. Accordingly, under s. 74 of the FLA,British Columbia has jurisdiction. [52] Under s. 74 (3) of the FLA, I may decline to make an order if I consider another jurisdiction to be a more appropriate one.

Inthis case, P. has lived most of his life in British Columbia, and almost all of the events described in the evidence occurred in Surrey,B.C. I have heard extensively from both sides of the family regarding P.’s best interests and I find that the jurisdiction would mostappropriately be exercised by a British Columbia court. Which Relocation Provisions of the FLA Apply in this Case? [53] There are two sets of provisions in the FLA that relate to a child’s location being changed: Division 6 (ss. 65 to 71) and s. 46.

Division 6 of the FLA only applies where there has been a written agreement or court order respecting parenting arrangements or contactwith the child, which there was not in this case. [54]

Section 46 provides as follows: Changes to child's residence if no agreement or order 46(1) This

section applies if all of the following circumstances exist: (

a) no written agreement or order respecting parenting arrangements applies in respect of a child; (

b) an application is made for an order described in section 45 (1) (

a) or (b) [orders respecting parenting arrangements]; (

c) the child's guardian plans to change the location of that child's residence and the change can reasonably be expected to have asignificant impact on that child's relationship with another guardian.

(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 (

a) must consider, in addition to the factors set out in section 37 (2) [best interests of child], the reasons for the change in the location ofthe child's residence, and (

b) must not consider whether the guardian who is planning to move would do so without the child. [55] P.G. argues that s. 46 is not applicable in this case. S.G. says that I must apply s. 46. [56] There are two decisions from the B.C. Supreme Court that deal with situations where one parent has already moved with thechild and there is an application under s. 46 of the FLA: DeJong v. Gardner, 2013 BCSC 1303, 2013 CarswellBC 2217, [2013]B.C.W.L.D. 7878, [2013] W.D.F.L. 4704, [2013] B.C.J. No. 1597, 230 A.C.W.S. (3d) 180 and F.(S.J.) v. N.(R.M.), 2013 CarswellBC2982, 2013 BCSC 1812, [2013] B.C.J.

No. 2175, 235 A.C.W.S. (3d) 145, 40 R.F.L. (7th) 177. In DeJong, the court noted that all of theenumerated circumstances in subsection (1) must exist for s. 46 to have application and, as s. (1)(

c) uses the word “plans,” s. 46 has noapplication where a parent has already moved with the child. F.(S.J.), which was decided after the DeJong decision, did apply s. 46 ofthe FLA in the same circumstances as in the DeJong decision. [57] I prefer the decision made in the F.(S.J.) case for the following reasons: 1. The Enactment Must be Construed as Always Speaking

[58] The

Interpretation Act, R.S.B.C. 1996 c. 238, s. 7 was not considered by the Court in the DeJong case.

Section 7 states that: 7. Enactment always speaking

(1) Every enactment must be construed as always speaking.

(2) If a provision in an enactment is expressed in the present tense, the provision applies to the circumstances as they arise.

Interpretation Act R.S.B.C. 1996, c. 238, s. 7 [59] Therefore, applying s. 7 of the

Interpretation Act to s. 46 of the FLA, I must construe s. 46(1)(

c) to use the past tense of “plans”in the case where a parent has already moved with the child. 2. The FLA Must be Interpreted as Social Legislation [60] The FLA is a type of legislation that is often referred to as social legislation. In British Columbia (Director of MaintenanceEnforcement) v. I.W.A. - Forest Industry Pension Plan (Trustee of), (BC CA), 1991 CarswellBC 290, [1992]B.C.W.L.D. 043, [1992] W.D.F.L. 004, 15 W.A.C. 117, 30 A.C.W.S. (3d) 714, 37 R.F.L. (3d) 266, 61 B.C.L.R. (2d) 264, 7 B.C.A.C.117, 86 D.L.R. (4th) 461, our Court of Appeal commented on the difference in legislative

interpretation when addressing sociallegislation, in that case, the Family Maintenance Enforcement Act: The Family Maintenance Enforcement Act is an example of what is sometimes referred to as "social legislation." It is designed toaddress the evil of widespread default in payments required to be made by family maintenance payment orders. In essence it makesavailable to persons entitled to maintenance payments the power and the resources of the state to enforce payment and thereby alleviatethe distress which is the frequent consequence of non-payment.

It is of the class of enactment to which the court has traditionally given a"purposive" construction. [61] The court went on to hold that, given the different purposes between the Court Order Enforcement Act and the FamilyMaintenance Enforcement Act, the decisions relating to garnishment and attachment under the Court Order Enforcement Act should notbe applied to cases under the Family Maintenance Enforcement Act “without examining them carefully to ensure that such an applicationwould be consistent with fairness and with the social purposes of the Family Maintenance Enforcement Act.” [62]

Section 8 of the

Interpretation Act reinforces the requirement to construe legislation according to its purpose: 8. Enactment remedial Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and

interpretation asbest ensures the attainment of its objects.

Interpretation Act R.S.B.C. 1996, c. 238, s. 8 [63] The purpose of s. 46 of the FLA is to ensure that the courts consider consistent factors when assessing whether or not a parentshould be permitted to move with a child and thereby provide additional certainty.

In addition to the best interests of the child, the courtis to consider the reason for the move and is not to consider if the relocating parent would move without the child. [64] The Ministry of Attorney General Justice Services Branch Civil Policy and Legislation Office, after extensive consultation withthe public, created the White Paper on Family Relations Act Reform: Proposals for a new Family Law Act (July 2010).

The White Papercommented on the law respecting relocation as it existed at the time at page 69 and said: The Family Relations Act says nothing specific about relocation, and, while case law has developed, it is still regarded as an area wherethe considerations for decision-making are open-ended. Critics have called relocation law “rock, paper, scissors territory” and say thatits uncertainty and unpredictability fuel litigation, prolong disputes and interfere with parents’ ability to plan. Canadian law professor Rollie Thompson argues [in “Movin’ On: Parental Relocation in Canada,” (2005) 43(3) Fam. Ct.

Rev. 39.] thatthe governing relocation test from Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27 and subsequent cases is so open-endedand flexible that there is little certainty in relocation law.

He points to the comments of American academics, Professors Bruch andBowermaster as summarizing the problem: The experience of other jurisdictions... suggests that asking the trial court in its discretion to weigh all appropriate factors fails toprovide a workable long-term solution... most jurisdictions [in the United States] that have considered relocation issues have ultimatelydelineated guidelines, presumptions or rules to assist in their analysis. [65] In M. (D.M.) v.

F. (D.), 2015 BCPC 310, 2015 CarswellBC 3205, [2016] B.C.W.L.D. 421, [2016] B.C.W.L.D. 424, [2016]W.D.F.L. 378, [2016] W.D.F.L. 390, 260 A.C.W.S. (3d) 114, our court grappled with a similar situation and distinguished the DeJongdecision on other grounds. However, the Judge noted that if s. 46 of the FLA did not apply, her decision could only be based on thechild’s best interests.

Thus, if the provisions of s. 46 only apply to a child who has not been relocated and do not apply where a child hasalready been relocated, even though that child’s habitual residence remains within the province under the FLA, then families in similarsituations will have different factors applied to them. [66] Finally, I note that in DeJong both the FLA and the Divorce Act were pleaded and the court followed the Court of Appealdecision of Hejzlar v. Mitchell-Hejzlar (2011), 18 B.C.L.R. (5th) 126, 18 B.C.L.R. (5th) 128, 334 D.L.R. (4th) 49, 2011 BCCA 230,

2011 CarswellBC 1136, 100 R.F.L. (6th) 32, 304 B.C.A.C. 305, 513 W.A.C. 305 (B.C. C.A.) in determining that where both Acts are pleaded, the Divorce Act is the preferred legislation. Therefore, the court’s comments regarding s. 46 of the FLA in the DeJong decision are obiter dicta as the determination was not essential to the court’s decision.

There was already a Court of Appeal case that indicated a preference for the Divorce Act in such a case . [ 67 ] Accordingly, following the F.(S.J.) decision, I find that s. 46 of the FLA applies to this case and I must consider the factors set out in s. 37 of the FLA as well as the reasons for the change in the location of the child’s residence. I must not consider whether S.G. would return to British Columbia if I order P. to be returned. P.’s Best Interests

a) P.’s Health and Emotional Well-being [ 68 ] Neither party indicated that P. had any special emotional or health issues. All of S.G.’s witnesses testified that he is doing well in Winnipeg. There was no evidence led as to whether or not P. was doing well in Surrey, British Columbia.

b) P.’s Views [ 69 ] There was no evidence as to P.’s views and, given his age, it would be inappropriate to consider them in any event.

c) P.’s Relationships with Significant Persons in His Life [ 70 ] As previously stated, P.G. and his family have only seen P. a few times since June 23, 2015, almost two years ago. [ 71 ] It was the evidence of both parties that G.G.’s family provided day care at their home for P. when the parties were both at work. Sometimes P. asked to go to G.G.’s home as he had cousins that he wanted to see at that home.

The evidence was in dispute as to how much time P. was at G.G.’s home, but I accept that he had a close relationship with them prior to the parties separating. [ 72 ] P. has extended family in Winnipeg, Manitoba, where he has lived for over a year with S.G.’s brother, his wife and his children, as well as her parents. P. is much enmeshed there.

d) The History of P.’s Care [ 73 ] I find that S.G. was the parent primarily responsible for caring for P. during the relationship. [ 74 ] J.S. testified that he visited S.G. and P.G. five or six times during the time they lived together. In 2012, he stayed a couple of days with them; and in 2013 or 2014 he stayed only one day. His observations were that P. was always with S.G.; she was the one cooking, cleaning the house and taking care of P. He never saw P.G. doing any of those things with P. [ 75 ] G.T. visited S.G. in March 2014 as at the time P.G. had gone to India to visit his brother who was ill.

He stayed for one and a half months in Surrey, and during that time P.G. was in India. P. was two years old and G.T. says that P.G. seldom telephoned P. [ 76 ] G.T. said that when he visited and P.G. was working, P.G. would come back from work, have a bath and a drink, and watch television. There were toys in front of the television and P. would be there while P.G. lay on the sofa. [ 77 ] After June 23, 2015, G.T. looked after P. if S.G. was working outside the home. G.T. had no recollection of G.G. asking if P. could visit P.G. P.G.’s extended family would visit but mostly to discuss dropping the charges.

P. was there during their visits. [ 78 ] P.G. testified that when he was not working, he would be home with P., especially during the three months he was off work with his back injury in 2014 to 2015. However, given my finding on the existence of the oral agreement between the parties, I prefer the evidence of S.G.’s witnesses.

e) P.'s Need for Stability [ 79 ] S.G. has lived in Winnipeg with her brother, his wife and his two children and she pays $400 per month in rent to her brother. Her parents live there as well. Additionally, S.G. has a large family in Winnipeg comprising of more than 15 families. [ 80 ] S.G. enrolled in English classes in Winnipeg and P. was able to attend them with her. She plans on taking more classes. P. is in classes for two days per week with his cousin, and G.T. also takes him to the Temple to take a Punjabi class.

P. goes to Pre-kindergarten at [omitted for publication] School in Winnipeg and has done so since September 2016. [ 81 ] S.G. started working at [omitted for publication] in March 2016 and she has Saturdays and Sundays off, although she sometimes works on Saturday. When S.G. works outside of the home, her parents look after P., as does her sister-in-law, who is on maternity leave. [ 82 ] I find that P. has settled into a regular routine in Winnipeg.

f) Each Parent’s Ability to Exercise His or Her Responsibilities [ 83 ] No evidence was led by either party that S.G. was not a good parent. On the other hand, S.G. and her witnesses testified that P.G. had a problem with alcohol. [ 84 ] G.T. visited P.G. and S.G. in March 2011. Evidence was given by G.T. that P.G. was drinking alcohol and he kept a bottle on the barbecue in the garage. While G.T. did not see him drinking in the garage, he was aware that the amount of alcohol in the bottle was diminishing. He was also aware that there were beer bottles under the bed. He said he saw P.G. drinking on a daily basis in the evening

and saw him come home with bottles of alcohol. He put those bottles in the garage usually and in the barbecue. G.T. himself does not drink and does not like drinking. [ 85 ] G.T. said that he could tell from the way P.G. walked and talked that he was drinking all the time. He acknowledged he did not see P.G. drink often, but he saw empty cans. [ 86 ] S.G. testified that after 5 p.m. he would start to vibrate if he did not have alcohol. She gave an example of when they had an invitation to go for dinner at a relative’s house after 5 p.m.

P.G. would not stay for long and made an excuse to return to the matrimonial home because he did not want to be seen drunk. S.G. testified that P.G. would make her drive the car at night because he had been drinking. She also said that he would drink and drive with P. in the car. He made efforts to hide his drinking problem from his relatives. [ 87 ] All of P.G.’s witnesses agree he drinks alcohol but say they have not seen him drunk. [ 88 ] P.G. denies any problems with alcohol.

He says he does not drink beer but, rather, hard alcohol, and then only on weekends. [ 89 ] After the incident of June 23, 2015, P.G. gave a statement to the police which was put to him in cross-examination. He said, “I drink every all day, I need drink, I shake like this.” P.G. explained in cross-examination he did not know English well and he did not understand what was happening.

He said his blood pressure was high and the police gave him a glass of water. [ 90 ] I find on a balance of probabilities that, given P.G.’s statement to the police, S.G.’s testimony and the observations of both G.T. and J.S., P.G. has a significant issue with alcohol.

g) Family Violence [ 91 ] The facts relating to family violence were set out earlier.

h) Whether P.G.’s Actions Indicate that He may be Impaired in His Ability to Care for P. and Meet P.'s Needs [ 92 ] I find, given the agreement made between the parties, P.G.’s drinking problems, and the nature of the family violence, P.G. has a limited ability to care for P. and meet his needs.

i) Can P.G. and S.G. Cooperate on Issues that Affect P. [ 93 ] If P. continues to reside in Winnipeg, there are likely no risks to P.’s safety, security or well-being if the parties must cooperate on issues affecting him. The difficulty in that case is that P.G. will have no knowledge of P.’s school, Temple, doctors, teachers or other important figures in P.’s life. It is hard to know how he would be able to have meaningful input in decisions that must be made. [ 94 ] If P. returns to British Columbia, then there are concerns about P.G.’s consumption of alcohol and the family violence that occurred between the parties and in front of P.

j) Any Civil or Criminal Proceeding Relevant to P.’s Safety, Security or Well-being [ 95 ] There are no longer any civil or criminal proceedings.

k) Reasons for the Change in Residence [ 96 ] The reasons for the move provided by G.T. were that S.G. had no family members in British Columbia to support her and P. She was working in a restaurant for cash and not earning much. P.G. was of little support to her or P. G.T. did not want to leave her in such a position, and, therefore, the move was agreed upon. [ 97 ] Since moving to Winnipeg, S.G. has found what appears to be a better job. She is taking classes.

She has the support of her family in raising P. [ 98 ] Overall, despite the agreement she made with P.G. to relocate, I find that her reasons for the move were not made in “bad faith,” as defined in the FLA, s. 69(6). Decision [ 99 ] I find that it is in P.’s best interests to remain with S.G. in Winnipeg, Manitoba, and accordingly there will be the following orders: 1. A finding that both parties are guardians of P. under s. 39(1) 2. S.G. will have all of the parenting time with P. unless set out otherwise in this decision, and she has permission to relocate with P. to Winnipeg, Manitoba. 3.

S.G. will have all of the parental responsibilities under s. 41 of the FLA; provided that she must advise P.G. of any issues relating to P.’s health, education, religious upbringing or extracurricular activities. 4. P.G. will have the ability to consult with third parties such as P.’s teachers, doctors and other medical caregivers, dentists, counsellors and child care providers if any. S.G. will provide the names, addresses and telephone numbers of such third parties to P.G. 5. S.G. may travel to the United States with P. without P.G.’s written permission.

However, she may not change P.’s residence from Winnipeg, Manitoba without giving 60 days’ written notice to P.G.

6. S.G.’s application for child support and spousal support are adjourned generally as sufficient financial information was not provided. [ 100 ] I asked both counsel to provide me with their clients’ positions on appropriate parenting time, either in British Columbia or in Manitoba. P.G. did not provide his position, except on the witness stand he broke into tears when asked that question. S.G. did provide an outline of her position in submissions. Her suggestions seem reasonable given my decision that P. will remain with her in Winnipeg. There was no concrete response from P.G.

Therefore, P.G. will have parenting time as follows: 1. S.G. will make best efforts to facilitate P. speaking to P.G., on regular, scheduled intervals, by either Skype, telephone or some similar means, including email when P. learns to read and write. P.G. will provide her with his available times for such communication and make best efforts to be available at those times; 2. Upon P.G. giving S.G. at least three weeks’ notice, he may have parenting time with P. in Winnipeg, Manitoba. S.G. will make her best efforts to obtain accommodation with a friend or relative for him.

Otherwise, he will find and pay for his own accommodation; 3. From the summer of 2017, S.G. will escort P. on flights to and from P.G.’s home in Langley, B.C. P.G. is responsible for the cost of all flights. The duration of the stay will be as agreed upon by the parties. P. will stay for up to one month with P.G. provided he sleeps at G.G.’s or S.D.’s homes. P.G. shall not consume any alcohol 24 hours in advance or during his parenting time. 4.

The parties may agree to add or change parenting time as arranged between them in writing. [ 101 ] Finally, P. has been in Manitoba for over a year and I find that the courts in Manitoba will have jurisdiction over P. henceforth. The Honourable Judge K.J. Ferriss Provincial Court of British Columbia