COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

T.K. v. R.J.H.A.,

2015 BCCA 8

Date: 20150113

Docket: CA041439

Between:

T.K.

Appellant

(Claimant)

And

R.J.H.A.

Respondent

(Respondent)

Before:

The Honourable Madam Justice Levine

The Honourable Madam Justice Smith

The Honourable Madam Justice Stromberg-Stein

On appeal from:  An
order of the Supreme Court of British Columbia,
dated November 21, 2013 (
T.K. v. R.J.H.A.
, 2013 BCSC 2112,
Victoria Docket No. E122025).

Counsel for the Appellant:

In Person

Counsel for the Respondent:

Robert S. Gill

Place and Date of Hearing:

Victoria, British
  Columbia

September 30, 2014

Place and Date of Judgment:

Vancouver, British
  Columbia

January 13, 2015

Written Reasons by:

The Honourable Madam Justice D. Smith

Concurred in by:

The Honourable Madam Justice Levine

The Honourable Madam Justice Stromberg-Stein

Summary:

The appellant mother
commenced divorce proceedings in which she applied to relocate with the
children of the marriage from the Victoria area of British Columbia, where she
and the father had lived for the almost ten years of their marriage, to the
Toronto area of Ontario, where she was raised and her family continues to
reside. The trial judge found that it was in the childrens best interests that
they continue to be co-parented in the de facto joint custody and shared
residency arrangement the parties had implemented in the Victoria area after
their separation. He therefore refused the mothers application to relocate
with the children. He also imputed income to the mother for the purposes of the
child support and granted the father costs of the action as the substantially
successful party. The mother appeals all three orders.

Held: Appeal dismissed. The
mother failed to demonstrate any material error of law or fact in the trial
judges analysis in determining the best interests of the children. The judge
weighed all of the relevant factors set out in Gordon v. Goertz and other
relevant circumstances relating to the needs of the children and the ability of
the respective parents to satisfy them. The judge did not rely on the reasons
volunteered by the mother for wanting to relocate or the reasons of the father
in preferring not to relocate, for a presumptive disposition in favour of the
status quo; rather he weighed all of the evidence in determining the custodial
arrangement that was in the best interests of the children. Nor did the judge
err in imputing income to the mother at a level below full-time employment for
the purposes of child support or in awarding the father costs of the action as
the substantially successful party.

Reasons for Judgment of the Honourable
Madam Justice D. Smith:

A.
Overview

[1]

The mother of two children, a son (now 10) and a daughter (now 8), appeals
a provision of a final order in the underlying divorce action that refused the
mothers application to move with the children of the marriage from the
Victoria area of British Columbia, where she and the father lived for the
duration of their 9½ year marriage, to the Toronto area of Ontario, where she
was raised and her family continues to reside.

[2]

The breakdown of the marriage occurred when the mother insisted the family
move to the Toronto area and the father refused to do so. This issue led to the
parties formal separation on January 9, 2012, although they continued to reside
together in the family home for the following 22 months until the date of the trial.
During that period they continued to co-parent the children, as they did during
the marriage. They also agreed on the division of assets, which resulted in the
father buying out the mothers interest in the family residence.

[3]

Following an 11-day trial, in written reasons for judgment dated November 21,
2013, the trial judge granted the parties a divorce, divided the family assets
by consent, granted the parties joint custody with equal shared residency of
the children pursuant to s. 16 of the
Divorce Act,
R.S.C., 1985,
c.3 (2
nd
Supp.), refused the mothers application to relocate with
the children, and awarded child support based on the shared custody arrangement
using the formula of a simple set-off of each parties income, which included
the imputation of a modest gross-up to the mothers part-time income pursuant
to s. 9(a) of the of the
Federal Child Support Guidelines
(the
Guidelines
).
He also awarded the father, who was the substantially successful party in the
action, ordinary costs pursuant to R. 16-1(7) of the
Supreme Court
Family Rules.

[4]

The mother raises numerous grounds of appeal. In my view they may conveniently
be reduced to three:

(a)      The
trial judge erred by failing to apply the best interests of the child test as
the sole determinant of her application to move with the children to the
Toronto area;

(b)      The
trial judge erred in imputing income to the mother, pursuant to s. 19(1)(a)
of the
Guidelines,
given the special needs of the son; and

(c)      The
trial judge erred in awarding the father costs.

[5]

The central issue in this appeal is the application of the test in
Gordon
v. Goertz,
[1996] 2 S.C.R. 27, to circumstances where the parent seeking to
relocate with the children of the marriage was in a
de facto
joint
custody, shared residency arrangement with the other parent since separation, and
the final order of divorce provided for the continuation of that custodial arrangement
as in the best interests of the children. In particular, the appeal engages the
issue about when the relocating parents reasons for wanting to move, or
parenthetically the non-relocating parents reasons for refusing to move, may
be relevant considerations in determining the best interests of the children.
It also engages the issue of whether the double-bind inquiry (what each
parent might do if the application to relocate is allowed or refused) may be
relevant to determining the best interests of the children.

[6]

For the reasons that follow, I would dismiss all grounds of appeal. In
my view, the mother has failed to demonstrate any material error of law or fact
in the judges analysis of the best interests of the children or in his orders
for child support and costs.

B.
Background

1.
The
Parents

[7]

The mother, age 41 at trial, was born in Hong Kong of Chinese parents. At
age four she moved with her parents and two siblings to the Toronto area. Her
mothers four siblings and her fathers brother also immigrated to Toronto. She
has a large extended family, including 25 cousins, who live in the Toronto
area. In 1998, after obtaining her degree as a Doctor of Veterinary Medicine,
she moved to Vancouver, British Columbia. In 1999, she met the father and in
2000 she moved from Vancouver to Victoria in order to be with him. In August
2002, the parties purchased a home, where they resided after their marriage on
September 6, 2002.

[8]

The mother worked full time until the children were born. The son was
born on October 2, 2004, and the daughter on August 22, 2006. The
mother took a one-year maternity leave with the birth of each child. Thereafter,
she chose to return to part-time employment of three-days a week so that she
could be the primary caregiver to both children and meet the special needs of
the son that required him to be transported to a variety of medical,
physiotherapy, occupational therapy, and speech language appointments. Both
children were also enrolled in a number of extra-curricular activities. The
parties employed the services of a nanny to assist them with the children when
they were both working.

[9]

While working part-time, the mother earned $138,779 in 2010 and $124,802
in 2011.

In November 2011 she was laid off from her employment. She has
since turned down similar offers of employment and has chosen instead to take
locum (temporary fill-in) contract work as it provides her greater flexibility over
her hours of work. In 2012 she earned $62,334.

[10]

The father, age 45 at trial, was born and raised in Toronto. His parents
and five of his six siblings continue to reside there. He moved to Victoria in
1990 to attend university, where he completed a bachelors degree in chemistry.
Thereafter he began working for his current employer, a manufacturer of plastic
and other products. He started with his employer as a production worker in a
summer job. Over the course of the past 20 years he has moved up in the company.
In 1998 he secured a full-time position and is currently employed as a
mid-to-senior level manager. He fills the position of Financial Controller and
Systems Manager, although he is not an accountant and has no formal information
technology credentials. In 2011 he completed an Executive Masters of Business
Administration (MBA). His current salary is approximately $90,000 per annum.

2.
The Children

[11]

The children attend elementary school and at the date of trial were in
grades 4 and 2 respectively. Each parent has been actively engaged in the
raising of the children. It is also common ground that both children are happy,
have a close and loving relationship with each parent, and relate positively to
each of them.

[12]

The son has ongoing intellectual and physical deficits that he developed
after suffering a severe fever and temporary loss of muscle control, possibly
in reaction to a chicken pox vaccine he was given at the age of 18 months. Since
then, he has had difficulty with his fine motor, language and communication
skills. His social and emotional development has also been delayed and he is
often distractible and impulsive. He has been diagnosed with Attention Deficit
Hyperactivity Disorder (ADHD) and Communication Disorder Not Otherwise
Specified (Communication Disorder). These challenges have made it more
difficult for him to learn a second language.

[13]

In his present school district, the son qualifies for special
educational support through an Individual Education Plan (IEP). With this
support, he has been able to minimally meet grade level expectations in reading
and writing, and his academic performance has improved over time. He is
described by his teachers as a happy child with a sense of humour who is well-liked
by his classmates.

[14]

The daughter is an exceptionally bright student. She falls into the
intellectually superior range with heightened math skills. She is enthusiastic
and inquisitive about her schooling. Socially, she is articulate and outgoing. She
is a mature child who is thoughtful and interactive with both parents. She has
expressed a desire to spend more time with her father whom she described as an
electronic genius.

[15]

Both children are busy with a variety of extra-curricular activities:
piano, hockey, figure skating, swimming and, since the parties separation,
after-school Chinese language lessons. The mother, with the support of the
father, enrolled the children in the Chinese lessons. This decision was made
only after the parties separation because, according to the mother, the sons
special needs did not permit it at an earlier time. While the daughter is doing
well in the lessons, the son says they are tough and awful for him.

3.
The Section 211 Report

[16]

The parties jointly retained Robert Colby who is a registered
psychologist. Mr. Colby was asked to conduct an assessment of the parents
and the children, and to prepare a report on the childrens needs, their views,
and the ability and willingness of each of the parties to satisfy the needs of the
children. His report was requested pursuant to s. 211 of the
Family Law
Act,
S.B.C. 2011, c. 25 [
FLA
] (the s. 211 report).

[17]

With respect to the assessment of the parents, Mr. Colby described
the mother as a focused, task-oriented, highly organized and structured
individual, and as having exceptional planning and motivational skills
.
He
described the father as anxious and restless at times, but also as self-reliant
and optimistic, and as an individual who otherwise does not raise any issues.

[18]

The mother provided Mr. Colby with three expert reports, which
addressed the benefits to children in general of becoming bilingual, being
exposed to another language and cultural heritage (in this case Chinese), and the
enhanced opportunities that the Toronto area offered the children in that
regard. The reports were tendered by the mother in support of her position that
the Toronto area would be the better community for the children. None of the
authors of those opinions had met or interviewed the children, the parents or
any other family members.

[19]

Mr. Colby reviewed the three expert reports but concluded that the
childrens needs were sufficiently addressed in their existing community. While
noting Torontos advantages in terms of greater involvement with the mothers
extended family and their Chinese heritage, he found that if the children
remained in British Columbia, being raised by both parents, they would have
sufficient exposure to and knowledge of their bi-cultural heritage. He also found
that any disadvantages of the children remaining in British Columbia would be
secondary to the vast benefits of their being raised by both parents.

[20]

Mr. Colby canvassed
the views of the children on the mothers proposed move. With respect to the
son he reported:

Moving away, [the son] says he would be with his uncles,
but not with his friends, and he proposes that there be a yearly rotation
between the houses. In drawing a picture of a family, [the son] included both
his mother and father, but on one occasion, put everybody in separate boxes and
drew himself quite small in the picture. [The son] states that he does not want
to move because his friends are here, his stuff is here, and he does not
enjoy learning or speaking Chinese. On the other hand, he would be with his
grandparents if he was in Toronto. [The sons] wish is that his mother and
father not fight with each other and if he was going to take a trip, he would
want to take a trip with both parents.

As to the
daughters reaction he wrote:

[The daughter] stated in the first interview, it would be
best to stay in British Columbia where she has school, where she is settled,
where she has friends, and if she moves, she would miss her other parent. In
particular, [the daughter] said she would miss her father and her friends and
her room. She adds that she would gain by having a family. She stated that even
at present she sees her father too little and wants to spend more time with
him. In drawing her family, [the daughter] included both her mother and her
father, and stated that she wishes they would relate better to each other and
would marry  and that there should be equal time with the parents.

[21]

Mr. Colbys initial 65-page report was comprehensive. The judge
summarized it as follows:

[34]      In Mr. Colbys
primary report, he recommends that both children remain in proximity to both
parents, and that both parents have an active and on-going relationship with
them on a scheduled basis. He recommends against prolonged separation of the
children from either parent. He recommends equal sharing of parenting time. He
recommends that the parents share decision-making responsibilities, such as
cultural and linguistic activities. He reports that the children do not favour
moving to Toronto, but notes that this would be expected in terms of their
current activities, friendships and security in their current home. He states
that having both parents available to them in a proximate residential community
is of greater benefit to them than the proposed relocation to Toronto. He
recommends that if the children remain in B.C., they travel twice annually to Toronto
with the mother, for Chinese New Year and extended summer vacation.

[22]

The mother took issue with the apparent underlying assumptions in Mr. Colbys
initial report that she would remain in the Victoria area if her relocation
application was refused, and that the father would remain in the Victoria area if
her relocation application was granted. She observed that the children also appeared
to make the same assumptions when they were asked by Mr. Colby about their
views on her proposed move.

[23]

The nature of these assumptions has been characterized as the double-bind,
particularly for the parent seeking to relocate with the children. If the
relocating parent indicates that he or she would move regardless of the outcome
of his or her relocation application, the assessment of that parent might be
that he or she is not prepared to put the childrens needs first and, therefore,
act in their best interests. On the other hand, if the relocating parent
indicates that he or she would remain with the children in their present community
if his or her relocation application is refused, that concession could lead to a
disposition that simply defaults to the
status quo.

[24]

In particular, the mother argued before the judge that the report failed
to consider the four possible scenarios set out in
S.S.L. v. J.W.W.,
2010
BCCA 55. Those scenarios, in this case, are:

(i) the mother
relocating to Toronto with the children but without the father; (ii) the
mother and the father remaining in Victoria with the children; (iii) the
mother and the father relocating to Toronto with the children; and (iv) the
mother relocating to Toronto without the children.

[25]

In response to the mothers concerns, the judge asked Mr. Colby to
prepare a supplemental report that expressly addressed all four possible
scenarios. In his supplemental report, Mr. Colby opined that both parents
relocating to Toronto would provide an optimal arrangement for the children as
it would offer them greater exposure to extended family on both sides and
involvement with the larger and more extensive Chinese cultural community in
that area, while maximizing each parents involvement with the children. On the
other hand, Mr. Colby also found that the childrens best interests would
be met by both parties continuing to co-parent the children in parental homes
that were in close proximity to each other in British Columbia, if not Victoria.
This would give the children sufficient exposure and knowledge  to their
multicultural heritage, and to an education system that would sufficiently
meet their needs. Any loss of benefits to the children if they remained in
British Columbia would, in his opinion, be secondary to the vast benefits they
get from being raised by these competent and caring parents.

[26]

Mr. Colby strongly rejected any custodial arrangement that would
give one or the other parent sole custody or principal residency of the
children, away from a common community. Such an arrangement, in his view, would
not be in the best interests of the children.

C.
The Judgment

1.
Custody
and Relocation of the Children

[27]

The judge applied the doctrine of paramountcy in determining the mobility
and custody issues under s. 16 of the
Divorce Act
rather than the
FLA.
On appeal, no issue was taken with that decision.

[28]

Based on all of the evidence, the judge found that both children were happy,
well-adjusted, and strongly bonded with each parent. The judge also found that
both parents were fully engaged in the childrens care, were competent and
caring, and were willing to share parenting time equally in a joint custody
arrangement. The only issue that appeared to divide them was the mothers
desire to relocate.

[29]

The judge was alive to the distinction between s. 46(2) of the
FLA
,
which mandates that a court must consider the reasons for the proposed
relocation but not whether the parent seeking to move would do so without the
children, and the legal principles from
Gordon v. Goertz
in which the
Court limited consideration of the custodial parents reason for moving to
the exceptional case where it is relevant to that parents ability to meet the
needs of the child (para. 49(7)(e)). In that regard, the judge stated:

[49]       A review of the
authorities makes it plain that a parents reasons for seeking to move are
almost invariably considered by trial judges, perhaps because these reasons are
generally linked to the best interests of the children, either by the parent
seeking to move, or the parent opposing the move:
Stav
at 86. That is
clearly so in this case, where the mother contends that her reasons for seeking
to move coincide with her views as to the best interests of the children. The
father mainly challenges the weight that should be given to the factors the
mother asserts, and urges that the court give greater weight to other factors.
It would be pointless and artificial in this case to compartmentalize the
mothers views. If the mothers views as to her reason for wishing to move is
to be considered then of course so should the fathers reasons for not wishing
to move.

[30]

The restriction of when a parent may be asked his or her reason for wanting
to move, or parenthetically his or her reason for not wanting to move, led the
judge to adopt a cautious approach in his consideration of both parties
evidence on this issue:

[52]      Both parties, no doubt
being mindful of the case law and uncertain about the potential application of
s. 46(2) (b) of the
FLA
, treated the question of what either parent
would do as being either improper or irrelevant. As a result the father gave no
direct evidence of what he would do if the children were permitted to move to
Toronto. On the other hand the mother volunteered on cross-examination that, at
this point, she would be unlikely to move to Toronto without the children. In
her closing submissions, counsel for the mother suggested I disregard this
evidence, and in the circumstances of this case, I agree. As I have said,
neither party sought to raise this question at the trial. It would be unfair to
rely on the mothers evidence, if it is taken as evidence of the strength of
her commitment to the children, without hearing from the father on the converse
question. The mother volunteered that evidence and, again in deference to the
authorities and the legislation, there was no further cross-examination on the
evidence. In any case I accept that such evidence must be treated with great
caution. The testimony may be strategic. Reliance on it may risk improperly favouring
the status quo. In many cases I doubt that either parent could be very sure as
to what they would actually do, so the evidence may be unreliable.

[31]

In the result, the judge based his decision on the childrens custody
and residency upon the circumstances as they exist today, not upon what the
parties say they would do (para. 53) because he concluded that it was unlikely
either parent could be sure about what he or she would do in response to his decision.
The judge also observed that [i]f, in future, a court is persuaded that the
preconditions for variation of the order are met, as set out in
Gordon,
then
of course the court would be required to consider the matter afresh, again in
accordance with the factors in
Gordon
 (para. 53).

[32]

Applying the test from
Gordon v. Goertz,
the judge grouped the
relevant considerations into nine categories, the first eight of which included
the listed factors at para. 49(7) of
Gordon v. Goertz
: (i) existing
arrangements and relationship between children and parents; (ii) desirability
of maximizing contact with both parents; (iii) views of the children; (iv) disruption
to the children due to a change in custody; (v) disruption to the children
due to removal from family, schools and community; (vi) Chinese culture
and language; (vii) proximity to extended family; (viii) careers and
financial concerns; and (ix) other factors.

[33]

In regard to each of these categories, the judge found:

1)       The
parties existing arrangement of joint custody and shared parenting of the
children should continue;

2)       Generous
access will continue if the parents reside in the same community but will be
sacrificed if the mother and children relocate and the father chooses not to;

3)       The
children were reluctant to change their existing arrangements but this was
based on their wish not to be separated from either parent;

4)       Joint
custody in either location would not involve a significant change of custody,
while sole custody and primary residency to either parent would be a
substantial change and detrimental to the children;

5)       While
both children would lose friendships and have to make new ones, it would be
more difficult for the son to do so, which could detrimentally affect him to a
larger degree than most children his age;

6)       The
enhanced exposure to Chinese culture in Toronto as compared with Victoria will
not significantly or materially benefit the children, as [t]here are objective
benefits to children of bilingualism and cultural identity as referred to in
the expert reports, but the relative importance of such matters to parents is
subjective and variable (para. 88);

7)       The
proximity of both sets of relatives in the Toronto area would benefit the
children. However the children are not completely removed from a relationship
with their extended family as they visit the Toronto area for extended periods
on a regular basis and their maternal grandmother visits them regularly in
Victoria;

8)       The
mother has an ability to pursue her career in either community, while the
father, if he moved to Toronto, would give up a very good career in Victoria
and face a risk of permanent damage to his employment prospects; and

9)       Each parent
will be unhappy if the other parent relocates or remains with the children in
their present community, without the other.

[34]

Items six through eight above relate to the reasons volunteered by the
mother on cross-examination for her proposed relocation. The mother placed
considerable weight on the increased exposure the children would have to the Chinese
culture and language in the Toronto area, relying on the three expert reports she
had commissioned. It was her position that those benefits would allow the
children to learn and understand that aspect of their heritage and should be the
determinative factor in deciding that relocation of the children to the Toronto
area would be in their best interests. She also noted that both sets of
relatives resided in that community, and that her prospects of buying a
veterinarian practice for continued part-time work was better in that community
than in the Victoria area.

[35]

The judge found that the mothers expressed interest in ensuring the
childrens knowledge of their Chinese heritage was largely a recent
phenomenon (para. 84), as evident by the post-separation timing of the
childrens Chinese lessons. He stated that [i]n general the evidence is that
Chinese language and culture has not been a major part of [the childrens]
lives, except to some extent on their twice yearly trips to Toronto, and very
recently with their enrollment in the Chinese school in Victoria (para. 87).
He also found that the mothers expressed reason for wanting to relocate
contained more of a strategic component in order to provide a credible
rationale for the proposed move and thereby augment her submission that
increased exposure to the Chinese culture and language, and to members of her
extended family, would offer the most benefit to the children (para. 89).
He further noted that the mothers claim that the father always knew that she
would want to return to Toronto after the children were born, was never put to
the father on cross-examination; he thus accepted the fathers evidence that the
parties never had a serious discussion about such a move (para. 85). He
also found that the mother knew, when the parties were married in 2002, that
the father was firmly entrenched in Victoria and that the mother was content,
until recently, to accept that distance from her family (para. 86). Lastly,
the judge found no evidence beyond the mothers speculative assertion that
ownership of a veterinary clinic in the Toronto area, as opposed to the
Victoria area, would be more financially advantageous for her, as her career
prospects and earning capacity were good in either locale (paras. 115 and
116).

[36]

The father was not asked specifically about his reasons for not wanting
to move to the Toronto area. However, in answer to certain questions he said
that he enjoyed his work, had a rewarding career with a supportive employer who
offered him job flexibility, and received a good salary and benefits. He did
not believe the same employment opportunities would be available to him in the
Toronto area. A decrease in income, he said, would negatively affect what he
could provide for the children. He also indicated that he has roots in the
Victoria area, enjoys its lifestyle, and does not believe he could duplicate that
lifestyle in the Toronto area. This understanding was based on his familiarity
with the Toronto area and the experience of friends who live there and commute
many hours a week between home and work.

[37]

The judge accepted the fathers evidence and found that if the father
were to move to the Toronto area, he would give up a very good career and likely
experience a negative impact on his employment prospects:

[110]    I infer that the
fathers chances of replicating in Toronto the very favourable employment and
career prospects and circumstances he enjoys in Victoria are questionable. His
career has been tied to one employer. Although he has done some independent IT
consulting in the past he has not continued with that business, leading me to
infer that in his view it was not his best career option. He is not an
independent professional. In a worst case scenario a move to Toronto could be a
career disaster for him. Of course there is also a chance that his career would
flourish in Ontario. But in summary, a move to Toronto would result in a
significant threat to his career prospects.

[38]

The judge also made findings with respect to the credibility and
reliability of each partys evidence. In particular, he found the father to be
a credible and reliable witness (para. 26) but the mother not to be a
credible witness generally (para. 94), rejecting the sincerity of [her]
contentions for why she wanted to move to Toronto (para. 90). His reasons
for finding the mothers credibility to be lacking were based, in part, on her:
(i) admission at trial that she had lied at her examination for discovery
about a document relevant to the parties financial issues and that she had
fabricated the document after the commencement of the divorce action (para. 91);
(ii) argumentativeness in cross-examination (para. 94); and
(iii) overstatement of the cultural and language issues because of a
strong desire to return to her family and childhood home (para. 123). In
regard to this last factor, the judge found that the mothers goal-oriented
evidence forced him to doubt the sincerity and depth of her concerns about the
importance of Chinese language, culture and identity for the childrens best
interests as compared with her own personal wishes (para. 93).

[39]

The judge carefully reviewed all of the relevant factors and found that the
mothers reasons for wanting to relocate were not determinative of what was in
the best interests of the children:

[54]      In custody
decisions involving bi-racial and bi-cultural children, matters of racial
identity, heritage and culture can be relevant factors which may be considered
in the context of the over-arching question of the childrens best interests.
However such factors are not determinative. Their significance is highly
variable and must be weighed by the court with the evidence and in the context
of all relevant factors, on a case by case basis:
Van de Perre,
2001 SCC
60 at paras. 36-43.

[40]

In the result, the judge concluded:

[122]    In the circumstances of this case, on all of the
evidence, and having particular regard for the views of Mr. Colby, in my
view the benefits to the children of continuing to have maximum contact with
both parents through continuation of the shared parenting arrangements outweigh
the relative strengths of either Victoria or Toronto as a location in which to
live.
Therefore, in practical terms, the options that merit the most serious
consideration are either joint custody and parenting in Victoria, or joint
custody and parenting in Toronto. It is clear that the other scenarios would be
detrimental to the children, and contrary to their views.

[123]    In my view it is in the childrens best interest
that they reside in Victoria. The benefits of Victoria outweigh the benefits of
Toronto. The potential benefits in terms of greater exposure to the childrens
Chinese language and heritage, even when buttressed with the factor of greater
proximity to family in Toronto, are modest and debatable. In my view the mother
has likely overstated the importance of these factors and their possible
benefits for the simple fact that she has a strong personal desire to relocate.
The children are not culturally deprived while residing in Victoria, given
the resources available to them here, the mothers involvement, and the regular
visits to visit family and participate in cultural events in Toronto. The
factors relating to disruption favour Victoria. The benefits to the children
from their parents career and financial prospects favour Victoria.

[Emphasis added.]

2.
Imputing the Mothers
Income

[41]

Given the ages of the children and their full-time enrollment at school,
the judge found that the mother, by choosing to work part-time only, was
intentionally under-employed within the meaning of s. 19(1)(a) of the
Guidelines
(para. 135). In that regard, he fixed the mothers 2013
Guidelines
income at $62,500 based on her part-time employment but imputed a modest
gross-up in her 2014
Guidelines
income to $90,000 based on her capacity
to increase her hours of work, even working as a locum on a contract basis (para. 135).
Based on his findings of the parties respective
Guidelines
income, he
ordered: (i) the table amounts of child support to be paid by each party
to be subject to a simple set-off in accordance with s. 9(a) of the
Guidelines
;
and (ii) the parties respective contributions to the childrens s. 7
expenses to be shared proportionately.

3.
Costs

[42]

The judge awarded the father ordinary costs pursuant to R. 16-1(17)
of the
Supreme Court Family Rules
as he was the substantially successful
party in the action. He rejected the mothers submission that each party should
bear their own costs simply because the central issue at trial was the
determination of what custodial arrangement was in the best interests of the
children. The judge also dismissed the fathers application for special costs,
finding that the mothers fabrication and dishonest testimony regarding the document,
while very serious and reprehensible, did not actually mislead the court. He
noted the need for courts to exercise restraint in awarding special costs,
which should be limited to exceptional circumstances. Relying on the test in
Garcia
v. Crestbrook Forest Industries Ltd.
(1994), 9 B.C.L.R. (3d) 242 (C.A.), he
concluded that the mothers reprehensible conduct was not deserving of reproof
in the form of an award of special costs, when viewed in the context of her
overall conduct, which he found was generally not objectionable (paras. 143-145).

D.
Discussion

1
.
Custody/Mobility

(a)      The Legal Framework

[43]

The scope of appellate review in family law matters is limited. Decisions
relating to custody are entitled to deference. In
R.E.Q. v. G.J.K.,
2012
BCCA 146, Madam Justice Newbury, writing for the Court, provided a helpful
summary of the deferential standard of review:

[33]      The Supreme Court of Canada has said that the
standard of review is a high one, i.e., that in family cases as elsewhere, an
appellate court may not interfere with the exercise of discretion of a trial
judge in the absence of a material error (including a significant misapprehension
of the evidence, the trial judges having gone wrong in principle or [his]
award [being]  clearly wrong): see
Moge v. Moge
,

[1992] 3
S.C.R. 518 at para. 12 and
Van De Perre v. Edwards,
2001 SCC 60,
[2001] 2 S.C.R. 1014 at paras. 14-5. In the latter case the Court wrote:

Second, an appellate court may
only intervene in the decision of a trial judge if he or she erred in law or
made a material error in the appreciation of the facts. Custody and access
decisions are inherently exercises in discretion. Case-by-case consideration of
the unique circumstances of each child is the hallmark of the process. This
discretion vested in the trial judge enables a balance evaluation of the best
interests of the child and permits courts to respond to the spectrum of factors
which can both positively and negatively affect a child. [At para. 13]

Thus the authorities make it
clear that it is not for an appellate court to re-weigh the evidence or to
interfere on the basis that the appellant court would give more weight than the
trial judge did to one factor or another - or, in the words of the Court in
Hickey,
that it would have balanced the factors differently.

[44]

Under the
Divorce Act,
the leading authority on the issue of a
parents mobility is
Gordon v. Goertz.
In that case, the mother who had
permanent custody of the child, with the father having generous access,
applied to relocate with the child to Australia. As such a change would
materially affect the fathers access rights, the mother applied to vary the
fathers access to the child. That application triggered the fathers cross-application
for custody of the child.

[45]

The Court granted the mothers application and varied the fathers
access. In the course of its reasons, the Court set out a two-stage test for the
variation of a custody/access order under the
Divorce Act.
At the first
stage, the parent applying to vary the existing order must demonstrate a
material change in the circumstances affecting the child (para. 49(1)). If
this threshold requirement is met, the court must then engage in a fresh
inquiry into what is in the best interests of the child, having regard to all
the relevant circumstances relating to the childs needs and the ability of the
respective parents to satisfy them (para. 49(2)). The fresh inquiry is
based on the findings of the judge who made the previous order and evidence of
the new circumstances (para. 49(3)). There is no legal presumption in
favour of the custodial parent, although that parents views are entitled to
great respect (para. 49(4)). Each case turns on its own unique
circumstances, with the best interests of the child as the
only
issue in
the particular circumstances of the case (para. 49(5)), not the interests
and rights of the parents (para. 49(6)).

[46]

The Court then listed a number of factors to consider in determining
whether the proposed relocation would be in the best interests of the children.
These factors relate to the relevant circumstances relating to the childs
needs and the ability of the respective parents to satisfy them (para. 49(2)).
They include:

[49] 7. More particularly the judge should consider,
inter
alia
:

(a)        the
existing custody arrangement and relationship between the child and
the
custodial parent
;

(b)        the
existing access arrangement and the relationship between the child and
the
access parent
;

(c)        the
desirability of maximizing contact between the child and both parents;

(d)        the views of the child;

(e)
the
custodial parents reason for moving, only in the exceptional case where it is relevant
to that parents ability to meet the needs of the child;

(f)         disruption to the child
of
a change in custody
;

(g)        disruption
to the child consequent on removal from family, schools, and the community he
or she has come to know.

[Emphasis added.]

The Court concluded:

[50]      In the end, the importance
of the child remaining with the parent to whose custody it has become
accustomed in the new location must be weighed against the continuance of full
contact with the childs access parent, its extended family and its community.
The
ultimate question in every case is this: what is in the best interests of the
child in all of the circumstances, old as well as new?
[Emphasis added.]

(b)      An Initial Application

[47]

The test in
Gordon v. Goertz
has been adopted in a modified
manner to mobility issues that arise in the context of an initial application
for custody and principal residency under the
Divorce Act
. See
Nunweiler
v. Nunweiler,
2000 BCCA 300,
Falvai v. Falvai,
2008 BCCA 503,
S.S.L.
,
and
Hejzlar v. Mitchell-Hejzlar,
2011 BCCA 230. The first stage of the
test which requires a material change of circumstances is, of course, redundant
in an initial application. The focus therefore immediately turns to the factors
listed in para. 49(7). Those factors must be modified to the extent that
there is no pre-existing order that has established a custodial parent and an
access parent. With these adjustments, the child-centered test from
Gordon
v. Goertz
continues to govern an initial application for custody and residency
under the
Divorce Act
that involves a mobility issue
.
In
Nunweiler,
Madam Justice Saunders explained:

[28]      The significance of the
reasoning in
Gordon v. Goertz
in an initial determination of custody is,
I consider, three-fold. First, the decision directs the court to consider the
motive for a parents relocation only in the context of assessing the parents
ability to meet the needs of the child. This, in my view, is as relevant a
direction on an initial custody hearing as on a variation hearing. Second, the
decision confirms the significance of the instruction, found in s. 16(10),
to consider the willingness of a parent to facilitate contact, but notes that
this consideration is subordinate to over-all consideration of the best
interests of the child.
Third, and more broadly, it approaches the issue of
relocation of residence from a perspective of respect for a parents decision
to live and work where he or she chooses, barring an improper motive.
[Emphasis added.]

[48]

Similarly in
Falvai
, the Court discussed the modification of the
test from
Gordon v. Goertz
for initial custody applications involving a
mobility issue by adopting a blended analysis that includes a consideration
of the mobility issue as part of, not separate from, the determination of the
custody issue. In
Falvai
the trial judge was found to be in error in
first deciding the custody issue in favour of the mother, and thereafter
determining the mobility issue by refusing her request to relocate with the
child:

[25]      This analysis [in para. 28 of
Nunweiler
]
does not create a two-step analysis as was undertaken by the trial judge. Nor
does it change the conventional approach to determining custody on an initial
application, which requires a balancing of all relevant factors, including a
parents proposed move with the child to a new community, in deciding what is
in the childs best interests. Rather, in the context of an initial
application,
Nunweiler
applied a blended analysis considering some of
the factors identified in
Gordon.

[Emphasis added.]

[49]

A further issue that arises in mobility cases is the nature of the
questions that can be asked to determine what is in the best interests of the children.

(c)      The Reasons for the Proposed
Relocation

[50]

Paragraph 49(7)(e) of
Gordon v. Goertz
restricting consideration
of the custodial parents reason for moving,

only

in the exceptional
case where it is relevant to that parents ability to meet the needs of the
child [emphasis added] has proven to be challenging in its application.

[51]

In a variation application, there has been a pre-existing determination that
one parent is best suited to satisfy the needs of the children (i.e., the
custodial parent). In that circumstance, it is understandable that the fresh
inquiry into the childrens best interests must be based on the findings of
the judge who made the previous order and evidence of the new circumstances (
Gordon
v. Goertz
at para. 49(3)). It follows that while there is no legal
presumption in favour of the views of the custodial parent, his or her decision
to live and work where he or she chooses is entitled to respect, barring an
improper motive for the move or any other evidence that may reflect adversely
on his or her parenting ability, because that custodial parent has previously
been found to be the parent who is best able to provide for the childrens
needs.

[52]

However, in the context of an initial custody and relocation application
there has been no previous determination that one or the other parent is best
able to meet the needs of the children. Accordingly, the modification of the
test in
Gordon v. Goertz
,

in my view, needs to include a
modification of para. 49(7)(e). In an initial application, it seems to me
that the reasons for a parents proposed move are relevant to the issue of
whether the proposed move will meet the needs of the children or affect (positively
or negatively) on that parents ability to meet the childrens needs. As the
childrens best interests is the only issue in the blended analysis, all
relevant circumstances that relate to the childrens needs and each parents
ability to satisfy those needs must be considered.

[53]

Similarly, where there is a pre-existing order for joint custody and/or
shared residency or, as in this case, a pre-existing
de facto
joint
custody and/or shared residency arrangement that is found, on an initial
application, to be in the best interests of the children, the application of para. 49(7)(e)
must also, in my view, be modified. In these scenarios, it has previously been
determined or established that the best interests of the children are met by both
parents acting as joint custodial parents and meeting the needs of the
children together. It follows therefore that the reasons for one of the joint
custodial parents wanting to move, effectively ending the joint custodial
arrangement that had been found or agreed to have been in the best interests of
the children, would be very relevant to determining whether the childrens
needs can be met by only one of the parents.

[54]

In summary, there may be many legitimate and worthy personal reasons for
a parent wanting to relocate or a parent wanting to remain in the childrens
existing community, that are entitled to be respected. However, those reasons may
also be relevant to the question of whether the proposed move meets the
childrens needs and/or the parents ability to provide for those needs and
therefore may be a necessary consideration with the other relevant evidence to
determining the custodial arrangement that is in the best interests of the
children.

[55]

In
Stav v. Stav,
2012 BCCA 154, Madam Justice Prowse also
recognized how reasons for a proposed relocation might factor into the best
interests of the child analysis:

[86]      A review of the mobility authorities in this and
other jurisdictions makes it plain that a parents reasons for seeking to move
are almost invariably considered by trial judges. Perhaps this is so because
these reasons are generally linked to the best interests of the children,
either by the parent seeking to move, or by the parent opposing the move.

[87]      It appears that the
majority in
Gordon v. Goertz
was concerned that examining the question
of a parents motive or reason for moving could result in the focus of the
inquiry being redirected from the best interests of the child to whether or not
the move was necessary. Allowing an investigation into the reasons for the move
was also viewed as opening the door to unjustifiably restricting the mobility
rights of custodial parents, who are most often women. In other words, allowing
the reasons for the move to factor into the equation, had the potential for
turning a mobility issue concerning the best interests of the children into a
gender issue.

[56]

In
Stav,
during the six years following the separation of
the parties, they continued to co-parent their children under the same roof in
a
de facto
joint custody/shared residency arrangement. Eventually the
mother decided that she wanted to return to Israel where her family lived and she,
thus, commenced proceedings under the
Divorce Act.
The trial judge
awarded the parties joint custody and joint guardianship of the children of the
marriage, and permitted the mother to move with the children from Vancouver to
Israel. The Court allowed the appeal and awarded the father primary residence
of the children in Vancouver finding, in part, that the judge had erred in effectively
treating the mother, who was found to be an able and competent parent, as the
custodial parent rather than a joint custodial parent, and in finding that her application
to relocate to Israel where her parents resided in order to primarily meet her
needs was equivalent to providing for the best interests of the children. In
the circumstances of
Stav,
Prowse J.A. was satisfied that evidence of the
reasons for a parents proposed move was admissible and served a legitimate
purpose if it was relevant to the best interests of the children:

[88]       [O]ften the parent seeking to relocate will
submit that doing so will enable him or her to obtain financial and/or family
support that is unavailable in his or her present situation, and which will
both directly and indirectly benefit the children. The other parent will argue
that whatever benefit there is to the relocating parent in those situations is
more than offset by the detriment to the children of being removed from their
community and, more importantly, from regular contact with the other parent. In
my view, these are legitimate considerations which may assist a judge in
determining to what extent the move will operate in the childrens best
interests. It is simply one more factor to weigh in the balance. The trial
judge considered these factors in this case and, in my view, she was right to
do so.

[89]      The question should not be whether the evidence of
the reason for a proposed move is admissible, but how it relates to the
childrens best interests, if at all. Ulterior reasons for moving which are a
thinly disguised attempt to thwart contact with the other parent are clearly
relevant to whether a parent is acting in the childrens best interests. Similarly,
reasons for moving which benefit the person seeking to relocate can also be for
the benefit of the children, but have to be weighed together with the other
evidence to determine whether the move is in the childrens best interests.

[90]      The fact that a move is
in the best interests of the parent seeking to relocate does not necessarily
mean that it will be in the childrens best interests. It is more likely to be
so if the person seeking to move is the custodial parent with a healthy
relationship with the children, than if the person seeking to move is an access
parent who has limited contact or involvement with the children. These are but
two scenarios along a broad spectrum.

[57]

This reasoning, in my respectful view, is consistent with
Gordon
v. Goertz
and the jurisprudence on the modification that must be made in
the application of
Gordon v. Goertz
to initial applications for custody
and residency. An inquiry into the custodial arrangement that is in the best
interests of the children must consider all the relevant circumstances
relating to the childs needs and the ability of the respective parents to
satisfy them (para. 49(2)). While the reasons for a parents proposed
move, absent an improper motive, must be treated with respect, they will likely
be relevant to determining what custodial arrangement is in the best interests
of the children.

(d)      The
Double-Bind Issue

[58]

A second concern that has arisen in mobility cases is
the potential for creating a factual presumption in favour of the
status quo
.
This presumption may arise if the relocating parent is asked whether he or she would
move without the children, or if he or she would stay with the children in their
existing locale, if his or her relocation application is refused. This is the classic
double-bind: if a parent responds that he or she would move with or without the
children, that could negatively affect the assessment of that persons
parenting abilities. On the other hand, if the parent responds that he or she would
remain with the children in their present community, that could positively
impact the assessment of his or her parenting abilities and, ultimately, the
custodial order made. The difficulty with this evidence is that it has the
potential to result in the
status quo
as a presumptive disposition.

[59]

In
S.S.L.,
Madam Justice Huddart recognized the need for a court
to consider all options for the children, without the stricture of any
double-bind. She expressed concern about the potential for presumptions to
detract from or even avoid the individualized child-centered inquiry into the
best interests of each child mandated by
Gordon v. Goertz.
Her comments
in
S.S.L.
echoed her earlier words in
Robinson v. Filyk
(1996), 28
B.C.L.R. (3d) 21, where she stated:

[30]      When the decision of a
trial judge who had conducted an individual enquiry into the best interests of
a child falls to be reviewed by an appellate court, that review will inevitably
focus on the process and presumptions brought to the task. If the reasons
reveal a mindset with a pre-ordained default position, then the decision must
be reviewed as if that mindset were not there. The trial judge who brings
presumptions to the enquiry is not considering the best interests of the
particular child in the particular circumstances and will have erred.

[60]

The circumstances in
S.S.L.
involved an initial application for
custody under s. 16(1) of the
Divorce Act
by a parent seeking to
vary a consensual shared parenting arrangement of school-aged children in order
to relocate with the children for personal and employment reasons. A key issue on
appeal was the appropriate weight to give to parents testimony about their
intentions if their preferred parenting arrangement is rejected (para. 1).
Writing for the Court, Huddart J.A. stated:

[12]      In my view, the trial judge fell into what is an
easy error in difficult parental mobility cases, to prefer what is seen as the
status
quo,
if in response to the other parents proposed parenting plans, the
parent seeking to move offers what some judges have called the third option
of not moving, if moving means leaving the children behind. The
status quo
is
allowed to supersede the balancing of other relevant factors. That is not the
correct approach: see
Chera v. Chera,
2008 BCCA 374 at para. 60,
Spencer
v. Spencer,
2005 ABCA 262 at paras. 15-19. This error led him to make
inconsistent orders, which is the error this Court found the trial judge to
have made in
Nunweiler v. Nunweiler,
2000 BCCA 300 at para. 30, and
comparable to that made in
Falvai v. Falvai,
2008 BCCA 503.

[13]
Opting to maintain what is perceived as the
status
quo,
without more, avoids the difficult decision of having to prefer one
parents plan to the others, without acknowledgment that the
status quo
is
ephemeral in any family.

[Emphasis added.]

[61]

In
Hejzlar,
Saunders J.A. also cautioned about relying on the
status
quo
as a default or presumptive disposition:

[26]       [T]he authorities
generally do not favour the
status quo
as a default position. In
Nunweiler
this court observed that such an approach reinserts into custody
discussions a presumption which is contrary to the instructions in
Gordon v.
Goertz
to assess each case individually and is contrary to the
observations of this court in
Robinson v. Filyk
(1996), 84 B.C.A.C. 290
that presumptions are inappropriate in custody cases and detract from the
individual justice to which every child is entitled .

[62]

Saunders J.A. further explained why a parents response to the double-bind
question should not be relied on for a default or presumptive disposition:

[27]      [T]his court, and
other courts in Canada, have discouraged reliance by a judge on any expression
by the parent who is seeking to move, that he or she will not move if the child
cannot accompany him or her.
S.S.L.
was a case in which weight was given
by the trial court to the mothers evidence she would not move without the
child. On appeal, this court referred with favour to
Spencer v. Spencer,
2005
ABCA 262, and
Bourgeois v. Plante,
2009 PECA 12, leave refd [2009]
S.C.C.A. No. 357.

[63]

In order to avoid a presumptive disposition caused by a double-bind
question, Huddart J.A. in
S.S.L.
offered the following approach:

[24]      In my view, the courts task in these joint
parenting cases is to analyze the evidence in four possible scenarios, in this
case, (i) primary residence with mother (London, Ontario); (ii) primary
residence with father (Victoria, B.C.); (iii) shared parenting in Victoria; and
(iv) shared parenting in London, but to do so knowing the courts first task
will be to determine which parent is to have primary residence.
When the
question of primary residence is evenly balanced and the court finds the best
interests of the children require both parents to be in the same locale, then
the court will need to choose between the shared parenting options offered by
the parents, without presuming the current care-giving and residential arrangement
is to be the preferred one.

[Emphasis added.]

[64]

In
Stav,
however, Madam Justice Prowse was of the view that the
double-bind question may be relevant to determining which of the two joint
custody/shared residency scenarios was the most feasible. As previously noted,
in that case the mother wanted to relocate to Israel and the father wanted to
remain in Vancouver. When asked, the father indicated that he would reluctantly
follow the children to Israel in order to maintain his relationship with them. One
of the issues on appeal was whether the trial judge had erred in relying on the
presumption that the father would follow the mother and children to Israel in
order to preserve the joint/shared custody arrangement which had been found to
be in the childrens best interests. With respect to that issue, Prowse J.A. distinguished
between the effect of the double-bind for a custodial parent (as in
Hejzlar
)
from that for a joint custodial parent (as in
Stav
) observing:

[63]      This passage [
Hejzlar
at para. 27] addresses the double bind facing the custodial parent seeking
to move with the children. But an analogous double bind arises in relation to
a joint custodial parent who is seeking to stay in the location where the
family has been living. If this parent relies on the maximum contact principle,
but takes the position that he/she would not move if the other parent were
permitted to relocate, he/she will be seen as taking a position contrary to the
best interests of the children.
If, on the other hand, this parent says that
he/she would be willing to relocate in order to maintain maximum contact, then
the trial judge may rely on that willingness to avoid the difficult decision of
what to do if both parents are convinced that their first choice is in the best
interests of the children.
While the trial judge did not overtly fall into
this trap, I conclude that she allowed her underlying assumption that Mr. Stav
would follow the children to discount Mr. Stavs option of shared
parenting in Vancouver. [Emphasis added.]

[65]

Prowse J.A. also addressed the conundrum that develops if any
assumption is made about how a parent might respond to the granting or refusal
of a relocation application, including that of the non-relocating parent:

[64]      I should observe, however, that I perceive a
problem with the stricture against courts expressly taking into account
evidence of what one or the other parent would do depending on the decision
made by the trial judge in relation to mobility. It is arguable that avoidance
of questions giving rise to the double-bind is directed more to the interests
of the parents than it is to the interests of the children. It may be unfair to
place either or both of the parents in the double-bind, but is it unfair to the
children? Is it contrary to their best interests? Arguably, the answer is that
it is only by asking the question of both parents and assessing their answers,
that the court can make a determination in the childrens best interests,
cognizant of all of the options.

[65]      This reasoning appears
to underlie the discussion of options in
S.S.L.,
where this Court said
that one of the options open to the Court was to make an order for relocation
which would require the parent seeking to maintain the
status quo
to
make the difficult decision whether to follow the children to the new location,
assuming that the evidence made that a viable option. If that is the case, the
trial judges acknowledgment of Mr. Stavs apparent willingness to
relocate, if necessary to maintain maximum contact with the children, was
consistent with the childrens best interests. However, if she was going to
consider Mr. Stavs willingness to leave Vancouver, she should equally
have considered Ms. Stavs willingness to stay in Vancouver. This, of
course, brings the court back to the double-bind.

[66]

From these decisions, it would seem that the risk of the double-bind
issue resulting in a presumptive disposition may be greater where the evidence
indicates a joint custody and/or shared residency arrangement that requires
both parents to reside in the same locale to be in the best interests of the
children. Where the evidence, as in this case, strongly supports a continuation
of the pre-existing joint custody and/or shared residency arrangement as the
only
custodial arrangement in the best interests of the children, the double-bind questions,
as a matter of practical reality, are relevant considerations to determining which
of only two potential dispositions are open to the judge: shared parenting in the
current locale or shared parenting in the proposed new locale. In these circumstances,
I am of the view that asking both the relocating parent and the non-relocating
parent whether they would move or stay if the relocation application was
granted or refused to be relevant factors, provided that evidence is carefully weighed
together with all of the other relevant circumstances in determining which of
the two potential dispositions could, practically, be made in the best
interests of the children.

[67]

The above approach is not, in my view, inconsistent with the principle
in
Gordon v. Goertz
which instructs us that [t]he childs best interest
must be found within the practical context of the reality of the parents lives
and circumstances, one aspect of which may involve relocation (para. 46).
Prowse J.A. recognized this practical reality in
Stav
when she observed that
in order to safeguard the best interests of each child, the parents may have to
answer the question of whether they would move or stay based on the potential dispositions
of the relocation application (para. 64).

[68]

I turn now to the judges foray into this jurisprudential minefield.

(e)      Did
the trial judge err by failing to apply the best interests of the child test as
the sole determinant of the mobility issue?

[69]

I begin with the premise that the mothers desire to return to live and
work in the Toronto area, where she was raised and a significant number of her
extended family continue to reside, is to be respected barring any improper
motive. However, she may only relocate with the children if such a move is
found to be in their best interests. Similarly, the fathers desire to continue
living and working in the Victoria area is also to be respected barring any
improper motive. However, the children may only remain in that community if it
is found to be in their best interests. In short, each parents reasons for
wanting to live and work in a certain community are entitled to respect. However,
when those reasons impact on the needs of the children and/or the parents
ability to meet those needs, they will take second place to the
only
consideration, which is the best interests of the children.

[70]

Given the best interests of the children is the sole issue in an
application to relocate with children of a marriage, a parents desire to move
with the children is typically framed as being in their best interests. In this
case, the mother submitted the best interests of the children required a move
to the Toronto area because of the enhanced opportunities for them to learn
about their Chinese heritage. In addition, she submitted the children would
have the opportunity of more frequently visiting with their extended maternal
and paternal families who lived there.

[71]

The mother contends the judge erred in his findings of fact as
enumerated in para. 33 above by ignoring the experts reports and their opinions
that the Toronto area provided more resources for the children to learn about
the Chinese culture and language. She argues that the judge gave too much
weight to the fathers evidence of the negative financial impact that a move to
Toronto would have on him and, in particular, the difficulty he would experience
in replacing his present employment, when he had made no attempt to look for
replacement employment in Toronto. She submits the judge also overlooked her
willingness to facilitate maximum reasonable contact between the father and the
children by forgoing child support and financially committing to the children
visiting the father once a month.

[72]

I am not persuaded the judge erred in his findings set out in para. 33
as alleged. There was, in my view, an evidentiary basis to support each of
those findings. In her submissions on appeal, the mother focused largely on the
failure of the judge to give more weight to the benefits of exposing the children
to the Chinese culture and language in the Toronto area. However, the judge
considered those benefits but accepted Mr. Colbys opinion that emersion
in the Chinese community of Toronto would likely not enhance the sons cultural
and language skills in light of his ADHD and Communication Disorder and that
the mothers stated reason for the proposed move was not critical to the sons
well-being. The judge also questioned whether the mothers stated reason for
the move was the true reason for the proposed relocation given that the
children were only enrolled in Chinese after-school classes following the
parties separation. In other words, the children learning about their Chinese language
had not been an apparent priority before the parties separation.

[73]

The judges negative findings of the mothers credibility and the
reliability of her evidence also carried weight in his assessment of this
factor. In the end, the judge concluded that the childrens exposure to Chinese
culture and language could be sufficiently met by the resources available in the
Victoria area. He found that it was not a determinative factor in his analysis.
This finding was consistent with the Supreme Court of Canadas comments in
Van
de Perre v. Edwards,
2001 SCC 60 at paras. 38-39, that a childs mixed
racial heritage is just one factor to be considered in the complex weighing of
a multitude of factors that are relevant to determining the best interests of a
child.

[74]

The judge accepted and agreed with Mr. Colbys analysis and, in the
end, relied on Mr. Colbys finding that it was in the best interests of
the children to remain with both parents, in a joint custody/shared residency
arrangement, in either the Toronto or the Victoria area. The issue then became:
in which of the two communities could that shared parenting arrangement be
implemented in a way that met the best interests of the children.

[75]

In deciding this issue the judge considered the relevant factors listed
in para. 49(7) of
Gordon v. Goertz,
and ultimately determined that
the continuation of the stable home environment the children had enjoyed up to
this point in their lives and the benefits of the lifestyle that Victoria provided
them, was in their best interests. He noted that the mother chose to live in
the Victoria area before her marriage to the father, and that Victoria was the
community in which the children were born and had lived their entire lives
(over 10 years). It was also the community in which the children had forged a
close and loving relationship with both parents, had developed close
friendships, and had experienced positive achievements and success at school. He
also gave weight to the disruption the son would likely experience by the move.
He found that the childrens financial security and prosperity were tied to
that of their parents and that their financial interests would be best served
in Victoria, as the fathers employment position could not likely be duplicated
in Toronto while the mother had good career prospects in either location.

[76]

The mother further submits the judge erred in law by relying on an
underlying double-bind presumption that the
status quo
of shared custody
and equal residency in the Victoria area should prevail given that the mother
said she would not relocate to Toronto without the children and the father refused
to move to the Toronto area. With respect, I cannot agree. The judge expressly
stated that he did not rely on that evidence, volunteered by the mother, given
the cautionary approach adopted in the jurisprudence on the double-bind issue.
Indeed, the judge was very much alive to the potential for such evidence to
presumptively favour the
status quo
and expressly disregarded it at para. 52
of his reasons (reproduced in para. 30 above). However, the judge also recognized
that, in light of Mr. Colbys opinion that joint custody and shared equal
residency was the only optimal arrangement in the best interests of the
children, the practical reality was that the
status quo
, as one of only
two potential scenarios, provided the best parenting option to meet the best
interests of the children.

[77]

In the process of reaching that determination, the judge carefully
weighed all of the evidence with respect to each of the relevant para. 49(7)
factors, the needs of the children (including the evidence of the available opportunities
in each of the two proposed communities to enhance the childrens understanding
of their bi-cultural heritage), and the parenting abilities of each party. He considered
the assessment and opinion of the jointly retained psychologist, and ultimately
concluded that the best interests of these children would be met by their
continuing to live in the community where: (i) the children had roots and
bonds of friendship and family; (ii) the father lived and had good
employment with increased prospects and flexibility for the children;
(iii) the mother had good employment opportunities; and (iv) the
children were doing well and could receive satisfactory instruction on Chinese culture
and language.

[78]

This process of weighing the evidence for and against the relevant
factors and circumstances is the unique task of a trial judge. That process may
include findings with respect to the credibility and reliability of each
partys evidence, as were made in this case. Absent palpable and overriding
error, of which none has been demonstrated by the mother, it is not for this
Court to substitute its view of the evidence for that of the trial judges.

[79]

In my view the judge correctly applied the best interests of the child
test and did not rely on a presumptive disposition based on the mothers
reasons for wanting to relocate with the children (which he rejected) or her
concession that she would not move if her relocation application was refused.

2.
Imputing Income

[80]

Section 19(1)(a) of the
Guidelines
provides:

19.
(1) The court may impute such amount of income to
a spouse as it considers appropriate in the circumstances, which circumstances
include the following:

(a) the spouse is intentionally under-employed or unemployed
other than where the under-employment or unemployment is required by the needs
of the child of the marriage or any child under the age of majority or by the
reasonable educational or health needs of the spouse;

[81]

The overarching principle for imputing income under s. 19(1)(a) of
the
Guidelines
is that of reasonableness, having regard to the needs of
the child and the earning capacity of the payor. The undisputed evidence is
that the mother has the earning capacity that was imputed to her by the judge.
She contends, however, that the judge erred in failing to find that she fell
within the exception to the general rule for imputing income because the son has
special needs that require her to work at a level less than her earning
capacity. This was a factual determination by the judge based on an exercise of
his discretion. It therefore must be accorded deference absent a material error
in the appreciation of the facts or an error in principle resulting in a
clearly wrong order. I am unable to find such an error.

[82]

First, the imputed level of income at $90,000 is something considerably
less than the mothers earning capacity at full-time employment. In 2011, the
mother earned commission income of $124,802 over an 11-month period while
working at a level that was less than full-time, albeit close to that level. Thereafter,
she refused offers to return to that form of employment and instead chose to
work as a locum on a contract basis. In this manner she was able to control the
amount of time she would devote to working outside the home. Based on her
ability to control her hours of work by choosing locums over a salaried or
commissioned position, she expects to earn between $60,000 and $65,000
annually. The judges finding that she has the capacity to increase her annual income
to $90,000, I agree, is a modest increase and remains at a level of part-time
employment that the mother could easily achieve by simply increasing her number
of locums, without having to assume full-time employment.

[83]

More significantly, however, is the lack of evidence that the sons
special needs require her to work part-time only. While undoubtedly the demands
upon the mothers time to meet the childs needs were greater when he was
younger, those needs have changed over time. He is now in an IEP program and
the evidence suggests that his performance at school has correspondingly
improved. Furthermore, the order for shared custody and equal residency will
require the father to be responsible for the childs appointments and
activities when the child is residing with him, thereby freeing up the mothers
availability for work. Those extracurricular activities the parents choose to
enroll their children in will be shared between the parents during the times
the children are residing in each of their respective homes.

[84]

In my view, the mother has failed to demonstrate any misapprehension of evidence
or material error of fact by the judge that would permit this Court to
interfere with this discretionary order.

3.
Costs

[85]

The judge found the father was the substantially successful party in the
action and awarded him ordinary costs. The mother submits he erred in awarding the
father costs in the circumstances of this case where the central issue was the
custodial arrangement and residency of the children. In such circumstances, she
submits, the judge should have ordered each party to bear their own costs.

[86]

Costs are a discretionary award. In matters of custody and access, the
usual rule that costs follow the event applies subject to the discretion not
to award costs in certain circumstances. Those circumstances do not include the
nature of the issues in dispute. See
Falvai
at para. 11
, S.J.C.
v. S.-J.A.,
2010 BCCA 31 at para. 62, and
Reis v. Bucholtz,
2010
BCCA 115 at paras. 83-86. Accordingly, I find no error in the judges
exercise of discretion to award the father, as the substantially successful
party in the action, ordinary costs.

E.
Disposition

[87]

In the result, I find no errors as alleged and I would dismiss the
appeal.

The
Honourable Madam Justice D. Smith

I agree:

The Honourable Madam Justice
Levine

I agree:

The Honourable Madam Justice
Stromberg-Stein