2012 BCSC 146 R.E.Q. v. G.J.K.

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	R.E.Q. v. G.J.K.,
	2012 BCCA 146

Date: 20120330

Docket: CA039079

Between:

R.E.Q.

Appellant/
Respondent on Cross-Appeal

(Claimant)

And

G.J.K.

Respondent/
Appellant on Cross-Appeal

(Respondent)

Before:	The Honourable Madam Justice Newbury
	The Honourable Mr. Justice K. Smith
	The Honourable Madam Justice Neilson

On appeal from: Supreme Court of British Columbia, May 3, 2011
([Q. v. K.], 2011 BCSC 574, Vancouver Docket No. E101823)

Counsel for the Appellant:	R.D. Holmes, Q.C. L.J. Muir
Counsel for the Respondent:	E.I.B. Hayward
Place and Date of Hearing:	Vancouver, British Columbia February 22, 2012
Place and Date of Judgment:	Vancouver, British Columbia March 30, 2012

Written Reasons by:

The Honourable Madam Justice Newbury

Concurred in by:

The Honourable Mr. Justice K. Smith

The Honourable Madam Justice Neilson

Reasons for Judgment of the Honourable Madam Justice Newbury:

[1] This is a family law appeal in which the most important issues are the custody and primary residence of the parties’ children, a daughter, age 14, and a son, age 9. These issues are particularly difficult in this case, given that both parents sought, and were therefore granted, joint custody of the children. However, the mother, Ms. Q., also sought the Court’s approval of her proposed move with the children from Maple Ridge, British Columbia to Calgary, Alberta. After a ten-day trial of this issue and other issues relating to family assets and support, the trial judge dismissed the mother’s application to move with the children, concluding that “it would be in the best interests of [the children] to remain living in Maple Ridge.” He granted Ms. Q. primary residence of the children on an “interim” basis for reasons explained below. His reasons for judgment are indexed as 2011 BCSC 574.

[2] On appeal, the mother submits that the trial judge erred by giving paramount importance to the desirability of contact between the children and their father, Mr. K.; by failing to respect her views concerning the move as being in the best interests of the children; in giving preference to the status quo; and in failing to give proper consideration to the father’s evidence that he would move to Calgary if the mother were permitted to move to that city. For the reasons that follow, I conclude there is no basis on which this court should interfere with the trial judge’s findings of fact or with the exercise of his discretion concerning the children, whether one applies the standard of review that is said to apply in cases of this kind or the lower standard applied in the seminal case on child mobility, Gordon v. Goertz [1996] 2 S.C.R. 27. On the other hand, I do agree that the trial judge erred in one respect in connection with the apportionment of assets inherited by Ms. Q., which were found to be family assets for purposes of the Family Relations Act, R.S.B.C. 1996, c. 128 (the “FRA”) and were divided equally between the parties.

Factual Background

[3] Ms. Q. and Mr. K. met at law school at the University of Victoria in 1987. Ms. Q. was from Calgary and was called to the Bar of Alberta in October 1991. Mr. K. articled in British Columbia, following which he unsuccessfully sought articles in Calgary. Eventually he accepted an offer of employment from a firm in Maple Ridge. The same firm offered articles to Ms. Q. in March 1992, and she also began working there full-time.

[4] The two were married in September 1993. They had agreed they wanted to have children and that in that event, Mr. K. would pursue his career “on a partnership track” and that Ms. Q., who was not and is not now interested in becoming a partner in a law firm, would work less outside the home.

[5] At the time of her marriage, Ms. Q. had assets exceeding $1 million, most of which were in a trust settled by her grandmother in 1972. The trust assets consisted mainly of securities, but also included a house in Calgary on 25A Street where Ms. Q. had lived (and paid rent) before she went to law school. She had also received an interest in certain mineral rights in 1985 and other cash and securities from other family sources. The parties did not enter into any prenuptial agreement. The trial judge found that they intended that Ms. Q.’s assets “should remain in [Ms. Q.’s] name and under her control throughout the marriage.” (Para. 54.) Although Mr. K. was aware of the assets in a general way, he testified that he would usually “avert his eyes” when his wife received financial statements from time to time. The trial judge preferred Ms. Q.’s evidence that Mr. K. told her “he would never go after my money, it was mine to do as I chose”, over Mr. K.’s testimony that he had told her not to worry, that they would be “fair with each other”. The trial judge continued:

[Mr. K.’s] claim for a share of these assets therefore is in contradiction to what he said prior to the marriage and the manner in which the assets were handled during the marriage. There was, of course, no prenuptial agreement, nor any allegation of an agreement of any sort as a defence to [Mr. K.’s] claim to share in her holdings now. The matter falls to be decided on the wording of the Family Relations Act. [At para. 54.]

[6] The parties did, however, reach an agreement with respect to Ms. Q.’s use of $98,000 of her own funds for the purchase of their first home in 1993. They agreed that in return for that contribution, she would receive 71.95% of the net sale proceeds when and if the house was sold. The balance was financed by mortgage. In addition, Mr. K. borrowed $50,000 from Ms. Q. in 1997 to purchase an interest in his law firm, which loan was repaid. The parties also had an arrangement under which each deposited every second paycheque into a joint bank account to be used for funding joint expenses. Each maintained a separate personal account to be used as he or she wished, and other joint accounts were opened for specific items.

[7] The parties’ daughter, “V.”, was born in 1997. Ms. Q. took maternity leave and when she returned to work after about a year, switched to working only part-time at the firm. The rest of her time was spent taking care of V. and performing general household duties. Mr. K. worked full-time at the firm, whose office was about five minutes away from their home. His professional life was a busy one and he usually had meetings one or two nights per week, plus various community activities. He became busier when he ran for Parliament in 2000 − an endeavour Ms. Q. fully supported. However, he was not elected; nor did he receive his party’s nomination to run again in 2004, much to his disappointment.

[8] In 2001, the parties bought their current house in Maple Ridge, structuring their affairs to make the mortgage interest tax-deductible. This involved using $275,000 of Ms. Q.’s funds. Eventually, she withdrew another $26,000 from one of her funds to pay off the mortgage. Another $40,000 was lent by a Q. family company but was repaid.

[9] The parties’ son, “A.”, was born in April 2003. Ms. Q. again took a maternity leave of one year and then returned to work part-time at the Maple Ridge firm. She also participated in various community organizations and at the time of trial, had a long list of volunteer activities and a wide circle of friends in the Maple Ridge area, some of whom testified on her behalf. At the same time, she remained very close to her family in Calgary, and with her children (and husband when possible) spent many vacations with them, in Alberta and elsewhere.

[10] Following Mr. K.’s unsuccessful attempt at political office in 2004, subtle changes began to take place in his professional and personal life. He began to feel more intensely the pressures of being the only litigator in a firm of solicitors. Eventually, he was approached to join a Vancouver law firm, where more resources and assistance would be available to him. He decided to accept the offer. The decision meant that he had to spend time commuting (60 to 90 minutes each way) into the city. Nevertheless, he continued to drive V. to school in the mornings, with the result that he usually reached his office in Vancouver at about 9:30 or 10 a.m. and had to remain later at the end of the day. A few months later, the Maple Ridge firm terminated Ms. Q.’s employment and she obtained a part-time position at another firm. The marriage began to deteriorate as Mr. K. began spending one to two nights per week in Vancouver, ostensibly for work reasons. By early 2007, he had rented an apartment in the city, and was spending two or three nights per week there. When he was home, however, he spent ‘quality time’ with the children, driving V. to school and regularly attending their sports activities.

[11] Counsel for Mr. K. described sports as the “anchor” of the children’s relationship with their father ‒ a description that is borne out by his testimony at trial. However, Ms. Q.’s organization of and participation in the children’s sports was also a very important part of her day-to-day life, and Mr. K. agreed in cross-examination that in the past 13 years, she had probably taken them to 90% of their activities. It is also clear that it is she who has taken, in the words of this court in S.S.L. v. J.W.W., 2010 BCCA 55, “primary responsibility for their health, safety, education and overall welfare” and dealt with more of the “mundane but necessary arrangements of their lives.” (Para. 32.)

[12] Ultimately, Ms. Q. discovered that Mr. K. was having an affair with another woman. Not surprisingly, she was very hurt, and both she and her family have had difficulty in coming to terms with Mr. K.’s conduct. After the parties made some attempts at reconciliation and counselling, Mr. K. moved into more permanent accommodation in Vancouver, leaving Ms. Q. in the matrimonial home with the children. At trial, he was adamant that he was staying in Vancouver out of concern for Ms. Q.’s hurt feelings, and that he fully intends to move back to Maple Ridge when his funds permit him to buy a townhouse there. As I read the trial judge’s reasons, he fully accepted Mr. K.’s testimony on this point, and proceeded on the assumption Mr. K. will be moving to Maple Ridge in the near future.

[13] Following the separation, Mr. K. began paying support of $4,000 per month to her but eventually reduced it to $1,600 per month, plus payment of private school fees of $15,000 per year for A. The trial judge noted:

[Mr. K.] has seen his children regularly since the separation. Recently, the schedule has been every second weekend from Friday night to Sunday night, with most recently some visits extending to his taking the children to school Monday morning. [At para. 28.]

[14] Ms. Q. began the present proceedings in February 2010, seeking an order for divorce, joint custody and joint guardianship and primary residence of the children with liberal and general access to Mr. K., and an order authorizing her to relocate with the children to Calgary. Mr. K. also sought joint custody but sought an order restraining Ms. Q. from making the proposed move with the children.

The Trial Judgment

Mobility and Residence Issues

[15] Because the parties had agreed on joint custody and guardianship, the trial judge made an order to that effect at the outset of his “custody mobility” analysis. (Para. 30.) Also at the outset, he noted that shortly before trial, Ms. Q. had sought an order that a “views of the child” report be prepared in respect of V., regarding her residence and the possible move to Calgary, but that Mr. K. had successfully opposed the ordering of such a report on the basis that it would have necessitated an adjournment of the trial. (Section 15(3) of the FRA requires that such a report be served on every party no later than 30 days before it is to be given to the Court.) The trial judge continued:

There is evidence from the claimant and her witnesses that [V.] has said that she looks forward to living in Calgary but there is none whatsoever about what she would think about being ordered to live an equal time with her father. I would not make such an order in the absence of some evidence of [V.’s] opinion on the matter. [Mr. K.’s] counsel concedes that it would be inappropriate to change [V.’s] primary residence without a report of her views. Without being in a position to decide [V.’s] residence it would not be proper to consider [A.’s] residence. The result is that the primary residence of the children cannot be decided at this point and will remain with the claimant, [Ms. Q.], until such time as is otherwise agreed by the parties or ordered by the court.

The issues before the court concerning the children are therefore [Ms. Q.’s] application to move their residence to Calgary and the question of what should be ordered concerning [Mr. K.’s] access. Both of the issues are to be decided on the basis of what would be best for the children in these circumstances. [At paras. 32-3; emphasis added.]

(I note parenthetically that Mr. K. filed a motion in Supreme Court on December 15, 2011, some months after the trial judge’s reasons were released, seeking inter alia an order that the trial be re-opened, a s. 15 report be prepared to investigate the possibility of parental alienation, and to make recommendations regarding issues of residence and a ‘parenting schedule’. Ms. Q. successfully opposed the motion on the basis that Mr. K. was seeking to re-litigate issues that had been tried.)

[16] The Court reviewed the present circumstances of the children, noting that both are doing well in school and that indeed V. has won various commendations and received straight As on her report card in grade 8. She is very athletic and participates in volleyball, basketball, baseball, golf, tennis, swimming and riding. A. is a quieter boy but has been doing very well in a private school he is attending in Maple Ridge. He tends to enjoy ‘solo’ sports such as skiing and horseback riding.

[17] The reasons given by Ms. Q. for wishing to move to Calgary were summarized as follows by the trial judge:

1. They would live in the house at 25A Street beside their uncle Brent [Q.], his wife and their cousins to whom they are close.

2. In Calgary, they could be with their grandfather, Robert [Q.], with whom they have a close relationship.

3. There would be less time spent on the road driving to various activities because of the central location of the residences, the superior Calgary road systems and would have the use of the Calgary Winter Club to which she belongs where many of their activities take place.

4. She would have better employment than she can find in Maple Ridge with a position she has been offered through her family connections at $50,000 per year.

5. With her family and friends in Calgary, she would have a much better support group which would allow her to thrive personally for the benefit of her children.

6. The children would have regular access to their father in Vancouver, spending one half of the holidays with him, and she would take them to visit with him in Vancouver for eight long weekends each year. [At para. 39.]

Ms. Q. testified that although she is working as a wills and estates lawyer for two days per week, she is paid only $36 per hour and has been unable to find a better position within a reasonable distance of her home. As well, she testified that as a now-single mother, she feels awkward in her social circle and has been somewhat depressed. She said she expected to “do much better” in the more supportive environment with her family in Calgary. She also expected to find (part-time) employment in Calgary and indeed had received an offer from a company, thanks to her family connections, that would pay $3,800 per month.

[18] Mr. K. argued that the children’s interests would be better served by their continuing to live in Maple Ridge because:

1. They would remain in the residence and attend the schools and activities that they have done so well in to date.

2. The children would retain the support of their friends in the community.

3. He would be able to see them much more frequently, participate much more fully in their lives, and would work toward having them spend equal time with him to benefit from what he has to offer as a parent.

4. The children already have an excellent relationship with their Calgary relatives which they have established and maintained while living in Maple Ridge, which could continue as it has so successfully to date.

5. The move to Calgary would tend to alienate the children from him because the [Q.] family have closed ranks against him, however subtly that may be, which would erode his connection to the children. [At para. 41.]

He also testified that if the children were to relocate in Calgary with their mother, he would move there as well, although as the trial judge noted, he gave no details as to a “plan” for doing so.

[19] If on the other hand the children were to remain in Maple Ridge, Mr. K. testified that he intended to buy a residence in the area once he receives his share of the proceeds of sale of the matrimonial home. He said he then planned to work from home every second week so that he would be in a position to have the children with him in alternating weeks, and that the partners of his firm were fully supportive of such an arrangement.

[20] The trial judge found as a fact that the Q. family had “closed ranks against [Mr. K.]” and thus made the children feel uncomfortable when with their father in the presence of their grandfather and uncle. Although the trial judge understood why Mr. K. was receiving a cold reception, he agreed with Mr. K.’s submission that the situation was not good for the children and was likely to be accentuated if they were to move to Calgary. (Para. 42.)

[21] With respect to the parties’ respective parenting abilities, the trial judge wrote that:

A great deal of the evidence of the claimant and her witnesses was directed at demonstrating that [Ms. Q.] was the person who actively arranged and took part in the children’s activities while [Mr. K.] was more of an observer. I do not infer from this however that [Mr. K.] had no interest in his children’s activities or would not have provided them with activities on his own, it appears to me more of a case that he did not have to arrange anything given their mother’s propensity to take charge of those things. There is a distinct personality difference between [Ms. Q.] and [Mr. K.] which is reflected in their style of caring for their children. I am satisfied however that [Mr. K.] , a successful lawyer with an admirable record of public service, and an active interest in golf and fishing, amongst other things, has much to offer his children as a parent. [At para. 43.]

He found as well that the children had “thrived so far” despite the breakdown of their parents’ marriage, and that their mother “deserves a great deal of credit for their success so far”, since she had been with the children more than usual since the separation. He then formulated the question before the Court thus:

What would better serve these children in the future − a move to Calgary with their mother or remaining in Maple Ridge with their mother, and their father in Vancouver and planning to move to Maple Ridge?” [At para. 45.]

[22] Looking at this question from the viewpoint of the children, the Court found that the proposed move to Calgary would not be in their best interests. “Most importantly”, the trial judge said, the move to Calgary would reduce the time available to the children to spend with their father. In his analysis:

... Although Calgary is only one hour’s flight time away, it is a four-hour trip door to door one way and a substantial disruption for whomever is doing the travelling. The proposal to bring the children to Vancouver eight long weekends a year, plus one-half the holidays would be both highly disruptive to them and very unlikely to actually be carried out in the long run, given the reality of athletic activities and the time they involve. This is exacerbated by the fact that the [Q.] family is estranged from [Mr. K.] in a way that would draw the children away from him, to their detriment. I do not say this is intentional, rather, it is an unfortunate result of the circumstances of the marriage breakdown.

While the proposed move to Calgary is projected to be beneficial, it involves a great many unknowns. Of course, these children could adapt, but that does not mean the result would necessarily be better. They are doing very well where they are, and with the litigation between their parents resolved, it is quite likely the removal of the stress that involves will improve their current situation. Calgary would require very substantial adjustments, going to new schools and making new friends, all of which inherently involve some risk of disrupting these children. If [Mr. K.] himself moved to Calgary, he would most likely suffer a very significant financial loss and in the process of establishing himself would have much less time for his children, neither of which would benefit them. [At paras. 47-8.]

The trial judge accepted that Ms. Q. had found it difficult to live in Maple Ridge since the separation and would prefer to live in Calgary, but doubted that she was limited to making $36 per hour in the long term. Even at that rate, she would earn $70,000 per year if she worked full-time. Having the children remain in Maple Ridge would allow Mr. K. to share more of the parenting responsibilities.

[23] In the result, the Court ruled that it was in the best interests of the children to remain living in Maple Ridge. The mother’s application for the Court’s approval of a move with the children to Calgary was dismissed and the Court ordered that “interim primary residence” of the children would remain with Ms. Q. ‒ presumably leaving it open for the views of the children to be canvassed and reported on in the event Ms. Q. moved without the children or Mr. K. moved to Maple Ridge in order to have the children reside with him half the time.

Division of Assets

[24] The Court then turned to the division of the parties’ assets that had not already been dealt with by agreement. Mr. K. claimed an equal share in these assets, all of which came from Ms. Q.’s trust or were inherited from her family. They included the house (worth approximately $500,000) in Calgary, a shareholder’s loan of $200,000 to Quantum Equities Ltd., certain shares in Altus Energy, and various accounts (totalling some $455,000) most of which were held jointly by Ms. Q. and her brother Brent, who lives in Calgary. (He owns and lives with his family in the house next door to Ms. Q.’s house on 25A Street.) The trial judge found that these were held jointly by the siblings for estate planning purposes and that Ms. Q. was “the owner” of the funds in the main account at CIBC Wood Gundy. (Para. 56.)

[25] The trial judge noted the relevant sections of the FRA, and observed that the parties’ financial arrangements were not the kind normally found in a traditional marriage: their practice with respect to every second paycheque had continued throughout the marriage and Ms. Q.’s inherited and trust assets had for the most part been kept separately in her name. As earlier mentioned, the Court inferred that the parties had intended them to remain under her control throughout the marriage. (Para. 54.)

[26] At paras. 55-62, the Court reviewed Ms. Q.’s use of the various accounts and found that the Quantum Energy shareholder’s loan and the CIBC Wood Gundy and ‘Valiant’ accounts had been used regularly for family purposes and were therefore family assets. This finding is not challenged on appeal.

[27] With respect to the Calgary house, Ms. Q. testified that some time after her mother’s death, she had put Mr. K. on title with herself as a joint tenant so that in the event of her death, he could hold it for the benefit of the children. (Her father had recently done the same in connection with his residence in Calgary.) The trial judge found that:

... [Ms. Q.] put [Mr. K.] on the title to the 25A Street house for the same reason − not to convey any immediate interest to him, (he never treated it as such) but to have him take her interest by survivorship if she died. After the separation, [Ms. Q.] asked him to transfer the title back to her and he did so. [Mr. K.] testified he did so because he wanted to avoid conflict with his wife. That may be so but, I am satisfied on the evidence, the interest in the house was never conveyed to him with the intention he was an owner during his wife’s lifetime. He never dealt with any aspect of the house, and neither the house nor the rental monies were ordinarily used for a family purpose. I find that the 25A Street property is not a family asset. [At para. 63; emphasis added.]

[28] Ms. Q. argued that an equal division of the family assets would be unfair having regard to the factors set forth in s. 65 of the FRA. However, the Court found that the duration of the parties’ marriage − over 14 years − favoured equal division and that the duration of their separation was a neutral factor. The Court noted that Ms. Q.’s account at CIBC Wood Gundy had been acquired by her in 1992 through inheritance and had appreciated due mainly to her father’s investment acumen. As for the needs of each spouse to become or remain economically independent, the Court observed that Ms. Q. was capable of supporting herself should she choose to and that she had “substantial assets exceeding $1,000,000 which are not family assets.” Thus it could not be said that either party required an unequal division of the assets in order to become self-sufficient.

[29] In the result, the trial judge was not persuaded that an equal division of the family assets would be unfair. He ruled that in fact, an equal division was fair and appropriate in the circumstances. (Para 71.)

[30] Finally, the trial judge fixed Mr. K.’s income for purposes of the Federal Child Support Guidelines at $177,468.14 and Ms. Q.’s at $127,489 and ordered Mr. K. to pay the table amount for child support, or $2,396 per month, plus 58% of the children’s special expenses in accordance with s. 7 of the Guidelines.

[31] With respect to spousal support, the Court was of the view that periodic support payments were “neither necessary nor desirable in this case”. (Para. 86.) The trial judge acceded to the suggestion of Mr. K.’s counsel that lump sum compensatory spousal support in the amount of $150,000 be ordered in favour of Ms. Q. to reflect that having interrupted her career to raise the children, she is now unable to earn as much in the practice of law as Mr. K.

On Appeal

[32] On appeal, Ms. Q. challenges the dismissal of her application for permission to move to Calgary, and submits in addition that:

The trial judge erred in not properly considering the intentions of the parties and the source of the assets in issue being from [Ms. Q.’s] family via trust or inheritance when he refused reapportionment of the assets held to be family assets.

and

The trial judge erred in failing to adequately compensate the Appellant for the career sacrifice made during and after the marriage, and in particular, in determining that assets that were not family assets should be taken into account in that analysis.

Mr. K. cross-appeals, stating his grounds of appeal in the form of questions as follows:

What legal principles should guide a judge in determining whether joint ownership of an asset qualifies as a family purpose under the Family Relations Act?

Was there sufficient evidentiary basis to support the conclusion on a balance of probabilities that the Calgary Property was not transferred into joint names with the intention that the Respondent would have an ownership interest?

Did the Trial Judge err in awarding $150,000 lump sum spousal support to the Appellant?

Mr. K.’s factum makes it clear that the first two issues relate only to the house on 25A Street in Calgary. He seeks an order declaring it to be a family asset and re-apportioning it 75% to Ms. Q. and 25% in his favour, and that she pay him the sum of $150,000 for his share. He also seeks an order that lump sum spousal support be reduced from $150,000 to $21,768 at the most.

Primary Residence and Mobility Issues

[33] The most important matter, of course, is the children’s residence. 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 judge’s having “gone wrong in principle or [his] final award [being] ... clearly wrong”): see Moge v. Moge [1992] 3 S.C.R. 813, at 832; and R.M.S. v. F.P.C.S. 2011 BCCA 53, at para. 43, citing Hickey v. Hickey [1999] 2 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 balanced 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 appellate 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.”

[34] Nevertheless, it is a striking fact that in recent years there have been many successful appeals taken from trial judgments in “child mobility” cases, at least in this province. It may be useful to review some of those cases before considering counsel’s submissions as to how they apply to the facts before us.

[35] The starting point, however is Gordon v. Goertz, supra. There, the mother had been granted permanent custody, and the father generous access to the parties’ daughter. When the mother made plans to move from Saskatoon to Australia with the child in order to study orthodontics, the father applied for the variation of custody in his favour, or alternatively, an order restraining the mother from moving from Saskatoon. The mother cross-appealed to have the access provisions of the custody order varied to permit her to move. The trial judge granted the mother’s application and the Saskatchewan Court of Appeal agreed.

[36] On appeal, the Supreme Court of Canada formulated the issue before it as whether the lower courts had erred in permitting the child to move to Australia with her mother, the custodial parent. (Para. 8.) The Court stated that in an application for the variation of a custody order, a two-stage inquiry is mandated − first, into whether a material change has taken place in the child’s situation, and if so, a consideration of the merits, based on the best interests of the child in the new circumstances, and considering all factors relevant to those interests. (Para. 18.) With respect to the “best interests” test, McLachlin J. (as she then was) for the majority observed:

The best interests of the child test has been characterized as “indeterminate” and “more useful as legal aspiration than as legal analysis”: per Abella J.A. in MacGyver v. Richards (1995), 11 R.F.L. (4th) 432 (Ont. C.A.), at p. 443. Nevertheless, it stands as an eloquent expression of Parliament's view that the ultimate and only issue when it comes to custody and access is the welfare of the child whose future is at stake. The multitude of factors that may impinge on the child's best interest make a measure of indeterminacy inevitable. A more precise test would risk sacrificing the child's best interests to expediency and certainty. Moreover, Parliament has offered assistance by providing two specific directions − one relating to the conduct of the parents, the other to the ideal of maximizing beneficial contact between the child and both parents. [At para. 20; emphasis added.]

[37] The majority went on to observe that unless the custodial parent’s reason for wanting to move is ‘connected’ to his or her parenting ability, it should “not enter into the inquiry.” (Para. 23.) It was acknowledged that in both ss. 16(10) and 17(9) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), Parliament mentions maximum contact between the child and both parents as a factor to be included in assessing the child’s best interests. McLachlin J. emphasized, however, that this principle, while mandatory, was not “absolute”. She reasoned:

... The Act only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests; if other factors show that it would not be in the child's best interests, the court can and should restrict contact: Young v. Young, [1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J.

The reduction of beneficial contact between the child and the access parent does not always dictate a change of custody or an order which restricts moving the child. If the child's needs are likely to be best served by remaining with the custodial parent, and this consideration offsets the loss or reduction in contact with the access parent, then the judge should not vary custody and permit the move. This said, the reviewing judge must bear in mind that Parliament has indicated that maximum contact with both parents is generally in the best interests of the child. [At paras. 24-5; emphasis added.]

[38] The majority rejected the proposition (adopted by L'Heureux-Dubé J. in dissent) that in assessing the best interests of the child, it should begin with a presumption in favour of the custodial parent, placing an onus on the “access parent” to show why remaining with the custodial parent is not in the child’s best interests. Such a presumption, McLachlin J. stated, was inconsistent with the principle that the child’s best interests are the only consideration. At the same time, the views of the custodial parent were said to be “entitled to great respect and the most serious consideration”, as was his or her decision “to live and work where he or she chooses.” (Para. 48.) In summary, the factors to be considered by a court when confronted with an application for a change in a custody or access order were said to include, 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;

(d) the views of the child;

(e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s 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. [At para. 49.]

[39] Ultimately, McLachlin J. stated, the importance of the child’s remaining with the parent to whose custody he or she has become accustomed must be weighed against the continuance of full contact with the child’s access parent, extended family and community. “The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?” (Para. 50.)

[40] Applying the foregoing principles, the trial judge in Gordon v. Goertz was found to have fallen into error in failing to make a full inquiry of all the circumstances and ‘relying heavily’ on the reasons of the judge who had originally granted custody of the child to the mother. Thus the trial judge had failed to assess the child’s relationship with her father, her extended family and community, her current needs and desires, or the abilities of each parent to meet those needs and desires. The Supreme Court did not apply the standard of review described in Moge or later in Hickey and Van de Perre, supra, instead applying, without comment, the lower standard enunciated in Friends of the Oldman River Society v. Canada (Ministry of Transport) [1992] 1 S.C.R. 3 at 77. The majority concluded that the trial judge had failed to “give sufficient weight to all relevant considerations”. Carrying out its own analysis on all the relevant evidence, they found, however, that the trial judge had not erred in continuing the mother’s custody of the child, despite her intended move to Australia.

[41] This court has purported to apply Gordon v. Goertz in a number of cases that were cited to us by counsel in the case at bar − most recently, Nunweiler v. Nunweiler 2000 BCCA 300; Falvai v. Falvai 2008 BCCA 503; S.S.L. v. J.W.W., supra; and Hejzlar v. Mitchell-Hejzlar 2011 BCCA 230. I do not intend to recite fully the facts of each here, but only to note the principles applied in context.

[42] In Nunweiler, this court held that Gordon v. Goertz applies to cases involving initial custody determinations as well as to variation applications. In Nunweiler, the father had been awarded sole custody of the parties’ daughter on the proviso that if the mother moved into the Fort St. John area, the parties would share joint custody and the child’s principal residence would be with the mother. In 1996, this occurred, and the daughter began spending alternate weeks with each parent. In 1997, however, the mother moved with her new ‘partner’ to McBride, British Columbia ‒ taking the child with them. McBride is a considerable distance from Fort St. John. The mother obtained an order giving her interim custody, and evidently the father sought to have it varied or set aside and sought sole custody. He testified, however, that if the mother was given custody, he was willing to “set up a residence in McBride and set up a shared custody arrangement in McBride, maybe 2 weeks at a time.”

[43] The trial judge found that all or part of the motivation for the mother’s move had been to get Mr. Nunweiler out of the lives of the mother, her new partner, and the child. In the end, the trial judge ruled that, if the mother relocated to Fort St. John, the parties would share joint custody; but that if she chose to remain in McBride, Mr. Nunweiler was to have custody, with reasonable access to the mother.

[44] On appeal, the trial judge was found to have erred in inferring an improper motive to the mother for the move without an adequate evidentiary basis. From there, this court said, the trial judge should have conducted his analysis “from a point of view respectful of [the mother’s] decision to make a new home in McBride”. (Para. 42.) Instead, he had focused on the economic interests of the father, failing to give “overt consideration” to the mother’s financial circumstances and to access difficulties that would have arisen if the mother had chosen to return with the child to Fort St. John. Further, the trial judge had given insufficient consideration to the benefits for the child of life in McBride, where she had been living for the previous 12 months; the stable relationship between her mother and her new partner; and the effect on the child of the disruption that would be caused by moving her from her (new) friends and school in McBride. Thus this court concluded that the trial judge’s order had been made on a “flawed factual basis” (para. 47), and without correctly applying the principles in Gordon v. Goertz. The order was set aside and sole custody of the child was granted to the mother without geographic restriction.

[45] In Falvai, the mother of the child in question had been awarded sole custody on condition that she not move from the community on Vancouver Island where the child’s father lived. The trial judge found that the mother’s stated reasons for wishing to return to the Lower Mainland were not “compelling from the point of view of the child’s best interests” and that the proposed travel arrangements necessary for the father’s exercise of access would ultimately deprive [the child] of a meaningful relationship with him. (Para. 17.) On appeal, this court held that the trial judge had erred in failing to adopt a “blended approach” to determining the issue of the mother’s proposed move of the child “in the context of the parties’ competing custody claims.” In the Court’s analysis:

... This was a significant factor to be balanced with the other relevant factors in deciding what was in the best interests of this child. The error was compounded when, after awarding the appellant custody of the child, the trial judge evaluated the reasons for the appellant’s proposed relocation in deciding whether to permit her to move with the child. Her reasons for wanting to move, absent an improper motive, were unrelated to her ability to meet the needs of the child and, as was stated in Gordon, were irrelevant to the analysis. Similarly, had the trial judge weighed the “maximum contact” principle in s. 16(10) of the Divorce Act with the other relevant factors in his assessment of the custody issue, he may not have concluded that it was the “determining factor” for imposing a prohibition on the appellant from relocating with the child. As was noted in Gordon, maximum contact is an important but not absolute principle. Based on these latter two considerations, the trial judge concluded that it was in the best interests of the child to remain in the community in which the respondent resided, albeit with the appellant as his sole custodian. The effect of this “condition” was to impose a restriction on the appellant’s legal authority as the child’s sole custodian that was inconsistent with the rights of a custodial parent. The combination of these errors resulted in an order which, in my view, would have been different had the trial judge undertaken the correct analysis. [At para. 20; emphasis added.]

[46] The Court in Falvai also observed that the approach suggested in Nunweiler did not create a two-step analysis, or change the conventional approach to determining custody “in an initial application, where there is no pre-existing determination that the relocating parent is the one best suited to meet the child’s needs”. The Court advocated a “balancing of all relevant factors, including a parent’s proposed move with the child to a new community”. (Para. 25.) In the result, it found that the restriction imposed by the lower court on the mother’s custody of the child was not supportable by the applicable legal principles and suggested that given the mobility of modern society, permanent conditions restricting the movement of a custodial parent should not be imposed “except in the rarest of cases”. (Para. 40.)

[47] In S.S.L. v. J.W.W., the parents of two school-aged children had shared guardianship and custody (on a 40/60 basis) in Victoria for about five years before the mother decided she wished to move to London, Ontario to live with her fiancé and his two daughters. As this court noted at para. 3 of its reasons, the mother believed she could provide a happy family life and better schooling for the children in Ontario, given the fact that her fiancé had considerable resources. On cross-examination, she had testified that if she could not take the children to London, she would not move. For his part, the father was “adamant” that he would not move to Ontario, partly because he wished to remain close to his daughter by another relationship. He sought either equally shared parenting in Victoria or that primary residence of the children be switched to himself.

[48] The trial judge concluded that the status quo should be maintained, effectively deciding (as Huddart J.A. noted at para. 9) that the children’s best interests at the time of trial “required them to live in Victoria, whether their mother moved or not.” The trial judge reasoned that the children’s loss of constant contact with a dedicated father (with whom they normally spent 40% of their time) and the disruption of their strong school and community ties outweighed the potential material and educational advantages of moving to Ontario.

[49] In so ruling, the trial judge was found to have fallen into “what is an easy error in difficult parental mobility cases, to prefer what is seen as the status quo” where the parent seeking to move indicates that he or she will not move without the children. (Para. 12.) In the analysis of Huddart J.A. for the Court:

The mother argued that the trial judge placed inordinate weight on the mother’s testimony that she would not move to London without the children, and that three problems flow from attaching any or much weight to such testimony. First, it creates an inappropriate presumption in favour of the status quo. Second, it puts parents in a double bind and encourages them to be tactical rather than focussing on the best interests of their children. Finally, it undermines the Charter values of equality and autonomy, and disproportionately affects women’s mobility. By attaching so much weight to the impugned testimony, the judge failed to consider whether it was in the best interests of the children to live without the mother and new family in London. He compounded that error by treating as “determinative” the fact that if the children were to move with their mother their relationship with their father would be disrupted. This approach made maintenance of the status quo the inevitable outcome, rather than simply a factor in evaluating how the decision to move or not move will affect the children. There are no presumptions in mobility applications: both parties must demonstrate how their position advances the best interests of the children by reference to all four scenarios. [At para. 19; emphasis added.]

and:

In my view, the court’s 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 court’s 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.

Proximity of parental homes will usually be in the best interests of children with two good parents. But proximity may be achieved in either proposed location. The choice of the existing location cannot be the default position. ... [At paras. 24-5; emphasis added.]

[50] As well, the Court emphasized that “child-centred evidence” as to the “best parenting arrangements in the circumstances as they are and can reasonably be foreseen” to be is of particular importance in child mobility cases. Huddart J.A. continued:

... Far more significant is the role each parent has played in the children’s lives; which parent has taken primary responsibility for their health, safety, education and overall welfare; which parent deals with the mundane but necessary arrangements of their lives – clothing, haircuts, extracurricular activities, gifts for friends, doctors’ and dentists’ appointments, contact with their extended family; and which parent has the best perception of the emotional needs of the children. In sum, what it is that each parent contributes to the children, as care-giver. Only when those contributions are made clear will an understanding be reached as to what arrangements will work best for the children going forward. The analysis of the parent’s role is fundamental to the determination of a primary care-giver, whether continued shared parenting is in the children’s best interests, and where they should live. [At para. 32.]

In the result, a new trial was ordered so that findings could be made as to the parents’ respective roles in their children’s lives and the proposed arrangements in the context of the “four scenarios” referred to at para. 24 quoted above.

[51] In Hejzlar, the parties had entered into a separation agreement establishing a regime of joint custody and joint guardianship, with the child’s “primary residence” with his mother. She later remarried and had two children with her new husband, who lost his job in the Lower Mainland of British Columbia. Despite an extensive search, he was not able to find other employment in the province, but did receive a good offer from an employer in Edmonton, which he accepted. The father did not agree that the child should move to Alberta and sought an order confirming his joint custody of the child and defining primary residence. In response, the mother sought an order of joint custody giving her primary residence and permission to move the child to Edmonton.

[52] The court below had before it an expert report to the effect that the mother was likely to better meet some of the child’s needs; however, the trial judge noted that when it came to the support of the extended families of the parties, it was clear that the Lower Mainland was “far superior” to Edmonton, whether the child was with his mother or father. As well, the judge found that the psychological and emotional well-being of the child would be “adversely affected on balance if the status quo is not maintained”, a fact he said the mother had not recognized. He was critical of the mother, suggesting that she did not understand “that ... it is a good thing for a child to spend more time with each parent” and that she appeared to “undervalue” the relationship between the child and his father. The trial judge ruled that it was in the child’s best interests to remain in the Lower Mainland with his mother and two half brothers, and that if the mother chose to move to Edmonton without the child, the child should remain in British Columbia, residing with his father.

[53] This court again allowed an appeal from the lower court’s order and permitted the mother’s proposed move to take place. The Court dealt first with various procedural difficulties that arose from the fact that no order regarding custody had been made before the parents made their respective applications for “primary residence”. It held that Gordon v. Goertz was applicable to the question of the child’s primary residence, “stepping over” those aspects of the case that addressed issues particular to applications for the variation of custody. The Court briefly reviewed Gordon v. Goertz, Nunweiler, Robinson v. Filyk (1996) 84 B.C.A.C. 290, S.S.L. and other cases, all of which were said to “keep foremost a robust view of the best interests of the child”. (Para. 28.) At para. 44, Saunders J.A. noted that barring an improper motive, counsel’s advocacy of the proposed move did not assist in determining whether the child would be well served by the move. As she stated:

... One would expect the advocate of the move to express [the] belief that his or her plan will advance the child’s best interests. It is precisely because the subjective views of the parents cannot be reconciled that the objective view of the court is sought. The measure of the question before the court is not the vigour of the expressed subjective views, but rather the substance of the plans presented to the court for the child’s care and development in the context of family circumstances. [At para. 44.]

[54] The Court found that the trial judge had placed undue weight on the mother’s testimony that she would not move to Edmonton without the child. Saunders J.A. continued:

... The reasons for judgment recite the appellant’s statement that she will stay in the Lower Mainland area rather than move without the child. I recognize that there may be many situations in which a child’s best interests are served by a court refusing a move. However, a full consideration of that possibility requires more than exploration of the potential effect of the proposed move upon the relationship between the child and non-moving parent. S.S.L. v. J.W.W. was a case in which this court said there were four possibilities that should be considered. While this is a different case, this case required at least consideration of the potential effect of refusing the move upon the relationship between the child and the moving parent, assuming the move will occur. In other words, it is consideration of the possibilities in the round, and not from one perspective only, that is required. The subtle, and troublesome, consequence of approaching the question with preference for the status quo is that the fully rounded analysis does not occur. In my respectful view, this is what happened here. The narrow ambit of the factors considered by the judge in assessing the alternative, in my view, reflects a material error in principle. [At para. 46; emphasis added.]

[55] As well, the Court found that the trial judge had weighed whether the move was “necessary”, when in fact no improper motive was imputed to the mother for the move. The trial judge had taken an “unduly narrow” view of the child’s relationship with his two brothers and step-father, overemphasizing the objective of maximizing contact with his father and the father’s parents. The result of the trial judge’s order had been “either to separate the child from his siblings, or to separate the child’s siblings from their father, who is employed in Edmonton supporting the entire family.” Had the matter been considered in this light, Saunders J.A. said, the impugned order would likely not have been made. (Para. 49)

[56] At the end of the day, the order was found not to incorporate the “respectful and balanced stance” required by Gordon v. Goertz and the cases following it. The trial judge was found to have slipped into the “status quo as the default position”, similar to what had occurred in Nunweiler. (Para. 52.) The Court of Appeal ordered joint custody and guardianship to both parents, with primary residence to be provided by the mother, including in Edmonton, with liberal access to the father.

Gordon v. Goertz in British Columbia

[57] The untrained reader of the foregoing appellate decisions might be forgiven for concluding that the Court of Appeal came dangerously close to reweighing the evidence and substituting its own discretion for that of the court below (a process that might be permitted by the standard of review enunciated in Oldman River, but not by that enunciated in Van de Perre and Hickey, supra.). Indeed, trial counsel for Mr. K. suggested as much in his closing submissions at trial. The reader might also be forgiven for questioning whether the complex and convoluted reasoning now required of a trial judge in cases of this kind is in fact consistent with the overarching principle that as stated in Gordon v. Goertz, the best interests of the child are not merely “paramount” in mobility cases but are “the only consideration.”(Para. 28.) In my respectful view, the reasoning in Gordon v. Goertz is in danger of being distorted into a set of ‘rules’ that undermine this principle. The Court’s statement that the views of the custodial parent are “entitled to great respect” has evolved into a de facto presumption in favour of the wishes of the custodial parent – notwithstanding the fact that the majority of the Court in Gordon v. Goertz rejected the imposition of a presumption. (Professor R. Thompson has referred to this as the unspoken “primary caregiver presumption”: see Ten Years After Gordon: No Law, Nowhere” (2007), 35 R.F.L. (6th) 307 at 315 and “Where is B.C. Law Going? The New Mobility”, prepared for the Continuing Legal Education Society of British Columbia’s Family Law – 2011 Update, at 8.2.7.) As seen above, the de facto presumption has been reflected in suggestions that the “rights” of custodial parents are inconsistent with restrictions on their mobility with the children, and that such restrictions should exist only in the “rarest of cases”.

[58] Like Gordon v. Goertz itself, the de facto presumption has been extended from variation applications to cases where an initial determination of custody is being made (Nunweiler), and more recently, to cases in which the parents are sharing custody and are in fact co-parenting (S.S.L.). It is not clear how the “great respect” principle should work where both parents are custodial parents. Further, the prohibition in this province and elsewhere (see S.S.L., para. 28; D.P. v. R.B. 2009 PECA 12 at para. 32; Spencer v. Spencer 2005 ABCA 262 at para. 18) against placing the custodial parent in a ‘double-bind’ by inquiring at trial whether he or she will move without the children, seems to have made consideration of the status quo impermissible as a possible outcome ‒ even though this court has also said that the best interests of the child must be considered “in the round” (Hejzlar) or in the context of all four possible scenarios (S.S.L.). Finally, the stricture (from Gordon v. Goertz) against considering the relocating parent’s reasons for wishing to move except where they are relevant to his or her “ability to meet the needs of the child” has proven unworkable, as trial judges are reluctant to approve the disruption of children from familiar surroundings and relationships for reasons that, while not improper, may be selfish or trivial. As Professor Thompson notes, the prohibition is either simply ignored altogether or is circumvented by invoking the bromide that ‘what is good for the custodial parent is good for the children.’ (See Thompson, Ten Years After Gordon, supra, at 316.)

[59] It may, with deference, be time for the Supreme Court of Canada to reconsider whether cases of this kind are to be determined with reference only to the children’s best interests or whether what I suggest is an unspoken factor in mobility cases ‒ the “mobility rights” of custodial parents ‒ are also a proper consideration. It is not for me to suggest that such rights should or should not be considered; but if they are, it seems to me that Canadian courts require guidance as to how such rights, if rights they be, are to be weighed against other factors relating to children’s best interests.

The Case at Bar

[60] Ms. Q.’s argument in this appeal took the developments in the law I have described, to their logical extreme. Mr. Holmes submitted that in a situation where the children live primarily with one parent who wishes to move for reasons that are not “exceptional”, it is an error in principle for the court to refuse to permit her to move with the children. As well, he contended that because the trial judge in the case at bar had used the words “most importantly” with reference to the fact that the move to Calgary would “significantly reduce the benefit available to [the children] from spending time with their father”, the Court had given “inappropriate weight” to the desirability of maximum contact with both parents and insufficient weight to the lack of economic necessity for the move, failing to give due respect to Ms. Q.’s views. (Mr. K. was essentially seen as an “access parent” in Mr. Holmes’ analysis.) Finally, it was said the trial judge had taken a “status quo approach” which had not allowed consideration of the case “in the round”. Had the court below effectively eliminated the status quo as a possible outcome, Mr. Holmes contends it should have concluded ‒ and indeed was required to conclude as a matter of law ‒ that it would be “unfair” (presumably to Ms. Q.) to deny her the ability to relocate in Alberta with the children.

[61] In response, Mr. Hayward on behalf of Mr. K. submitted that if the trial judge is required to consider all factors that are relevant to the children’s best interests, it is almost inevitable that one or more would be given greater emphasis in a particular case. In this instance, the most important factor was seen to be the severe diminution of the children’s ability to spend time with their father. Obviously, in an arrangement under which the children could spend eight long weekends with him per year, as compared to every second weekend now, the children’s contact with their father (who is also a “custodial parent”) would be adversely affected. This loss, it was submitted, clearly outweighed the benefit to the children of living closer to their grandfather and uncle, and being able to use the “superior Calgary road systems” and the Calgary Winter Club. Counsel also made a ‘sauce for the goose’ argument: Mr. Holmes had relied on the father’s testimony that if the mother was permitted to move with the children, he would also move, but had been critical of the trial judge for referring (during a colloquy with counsel) to the fact that Ms. Q. had not said she would move to Calgary “regardless of whether custody is awarded.”

[62] Mr. Hayward also submitted that the trial judge had considered all possible scenarios ‒ to the extent that they were realistic. As seen above, the judge had considered the “scenario” of both parents moving to Calgary but noted at para. 48 that Mr. K. “would most likely suffer a very significant financial loss and in the process of establishing himself would have much less time for his children, neither of which would benefit them.” Another “scenario” was for Ms. Q. to move to Calgary but for the primary residence of the children to be changed to be with their father. As noted earlier, the trial judge felt bound to eliminate this possibility in the absence of a report concerning the views of the children. (See para. 32, quoted infra at para. 15.) In the result, the trial judge said, the Court could not consider changing the primary residence of the children in the present proceeding. He therefore made an interim order that they remain with Ms. Q. until otherwise ordered or agreed by the parties.

[63] This left the trial judge with a choice between the remaining two scenarios enunciated at para. 45 of his reasons ‒ “a move to Calgary with their mother or remaining in Maple Ridge with their mother, and their father in Vancouver and planning to move to Maple Ridge”. In my view, these were the only two realistic possibilities that the trial judge could have considered in the circumstances of this case, barring the adjournment of the trial while a report was prepared. (As far as I am aware, neither party sought an adjournment.) The status quo was one of the two remaining possibilities. Must the trial judge be found to have erred because he considered it, or because he weighed the reasons for Ms. Q.’s proposed relocation against the disruption of the children’s lives and their connections to Mr. K.?

[64] I am of the view that the trial judge properly considered the two realistic alternatives that were open to him in terms of the children’s interests and that he did not err in concluding that the factors in favour of the move to Calgary ‒ the fact that Ms. Q. would find it easier to live as a single parent in a more supportive family environment and might be able to find employment more easily due to her father’s contacts ‒ were outweighed by the benefits of their remaining in Maple Ridge, where the children are doing well and are able to see their father much more often than would be the case if they were in Calgary. The result might be different if (assuming the mother’s reasons for wishing to move could properly be considered) the mother were moving in order to obtain a professional qualification (as in Gordon v. Goertz) or to be with a new spouse (as in Hejzlar) or if the children were clearly suffering emotionally or otherwise in Maple Ridge. Fortunately, this is not the case: the benefits that the children would experience by moving to Calgary are as the trial judge suggested only marginal, in that they already have strong relationships with their ‘Q.’ relations, and are “thriving” in good schools and able to participate in athletic activities in acceptable facilities in Maple Ridge.

Fresh Evidence Application

[65] I note that Ms. Q. sought to introduce fresh evidence on the appeal, concerning her decision to sell the matrimonial home (ostensibly as a matter of financial necessity) and the expected loss of her job when her present firm merges with another firm. Counsel for Ms. Q. submits that this evidence should be admitted because it shows the trial judge made assumptions about future events that were incorrect or have become so: see North Vancouver (District) v. Fawcett [1998] 60 B.C.L.R. (3d) 201 (C.A.) at para. 26. Ms. Q. also proferred a letter from a Calgary law firm offering her full- or part-time employment, although without any details as to remuneration.

[66] Applying the well-known criteria regarding the receipt of fresh evidence, I would not admit these items, because they would not affect the result in this case. As will be evident below, the sale of the matrimonial home has been likely since the parties’ divorce, although not because of any financial necessity on Ms. Q.’s part. As for her employment, it appears the trial judge endorsed the fact that at some time in the future, Ms. Q. would have to become self-sufficient, whether in the Lower Mainland or in Calgary. Despite her evidence of having contacted various law firms to seek employment, he did not find that she would likely be unable to find work within a reasonable distance of Maple Ridge.

[67] I would dismiss the motion to adduce fresh evidence and the appeal from the trial judge’s dismissal of Ms. Q.’s application for permission to move to Calgary with the children.

Inherited Family Assets

[68] I turn next to Ms. Q.’s submission in her factum that the trial judge erred in failing to order adequate compensation for the “career sacrifice [she] made during and after the marriage”, and “in particular, in determining that assets that were not family assets should be taken into account in that analysis.” At the hearing of this appeal, the ground of appeal changed focus: Mr. Holmes argued that the trial judge erred in finding that an equal division of the inherited family assets was not unfair in the face of what counsel referred to as the parties’ “intentions” that they should be kept separate (see the trial judge’s reasons at para. 54) and the fact that Mr. K. did not contribute to the management or appreciation of those assets.

[69] Mr. Holmes drew our attention to MacNeil v. MacNeil [1997] B.C.J. No. 2466 (C.A.), in which it was held that a trial judge had not been “clearly wrong” in reapportioning a wife’s inheritance (part of which had yet to be received by her) wholly in her favour, even though it was found to be a family asset. The Court noted that it would be justified in interfering in the exercise of the trial judge’s discretion under (then) s. 51 of the FRA only “if the trial judge misdirects himself or if his decision is so clearly wrong as to amount to an injustice”, citing Elsom v. Elsom [1989] 1 S.C.R. 1367. Applying this standard of review, the Court could not say that the reapportionment in the wife’s favour was so clearly wrong as to amount to an injustice. (Para. 38.)

[70] For his part, Mr. K. argues through his counsel that this was a fairly long marriage, during which he contributed virtually all of his earnings to the support of his family and to the acquisition of joint assets such as the matrimonial home “at the expense of accumulating any significant assets on his own.” He submits that there is a “long-established principle” that the significance of receiving assets by way of gift or inheritance diminishes according to the length of the marriage and the contributions made by the other spouse to the family generally. On this point, he cited Watts v. Watts [1987] B.C.J. No. 2072, in which the Court referred to Godding v. Godding and Heffelfinger (1981) 26 R.F.L. (2d) 220 (B.C.C.A.). There, this court ruled that an unequal division of an inheritance of $23,000 (which had been applied to a mortgage on the matrimonial home) was erroneous and ordered that the inheritance be divided equally.

[71] More recently, in Lodge v. Lodge [1993] 79 B.C.L.R. (2d) 360, this court ruled that the trial judge had not erred in refusing to reapportion a house in favour of the wife, who had inherited it from her mother in 1982. The parties had been married at the time and remained together until 1990. They had rented out the house and then mortgaged it to buy another rental property, and paid the expenses relating to both properties from their family company. At para. 17, Prowse J.A. said this for the Court:

In my view, the learned trial judge did not err in refusing to reapportion the 91A Street property under s. 51(d) of the Act [now s. 65(1)(d)]. Mrs. Lodge had a one-half undivided interest in the property in 1979 and became the registered owner of the property in 1982. Thereafter, she and Mr. Lodge continued to live together for another eight years until they separated. The significance of an inheritance as a factor in a reapportionment diminishes according to the length of time that the marriage subsists following the receipt of the inheritance. (See, for example, Godding v. Godding (1981), 36 B.C.L.R. 145 (B.C.C.A.)). There is no suggestion that Mrs. Lodge made a greater contribution to the acquisition or maintenance of the property than did Mr. Lodge. In fact, the learned trial judge found that it was Mr. Lodge's contributions through his business earnings which enabled the parties to parlay their interest in the 91A Street property into a further benefit to the parties through the purchase of the Hayle Place property. [Emphasis added.]

(It was held, however, that the trial judge had erred in failing to reapportion the property under what is now s. 65(1)(e) of the Act ‒ i.e., because of the wife’s need to become economically self-sufficient. (Para. 18.))

[72] The parties’ marriage in the case at bar lasted some 14 years, a fact that the trial judge found militated in favour of equal division. However, Mr. K. made no contribution to the maintenance or appreciation of these assets, whereas both he and Ms. Q. contributed to the appreciation of his skills and reputation as a lawyer – properties he now takes with him. At the least, he allowed his wife to proceed on the assumption that he would not assert an interest in her inheritance should they ever divorce. While the parties (who are both presumably knowledgeable about the consequences of divorce) did not “contract out” of the FRA regime (see Davison v. Hendriks 2009 BCSC 1771 at para. 96), I am satisfied that the fact the inherited assets were inherited by Ms. Q. and managed by her family without any assistance or expression of interest on Mr. K.’s part is a circumstance “relating to the acquisition, preservation, maintenance, improvement or use of property” for purposes of s. 65(1)(f) of the FRA (see Montalban v. Montalban 2007 BCSC 1266 at para. 77) and that they are distinguishable from those discussed in Lodge or Godding, supra. In my opinion, this factor did make the equal division of Ms. Q.’s inherited assets unfair. I would allow the appeal and reapportion them 75% in Ms. Q.’s favour and 25% in Mr. K.’s favour.

Compensatory Spousal Support

[73] Finally, Ms. Q. submits that the trial judge erred in taking into account her ability to support herself and her substantial “non-family” assets when he concluded that a lump sum payment of $150,000 for spousal support would reasonably compensate her for the fact that having devoted much of her time to raising the children during and after the marriage, she is unable to earn what Mr. K. can earn in the practice of law. Mr. Holmes suggests that the fact Ms. Q. has substantial income from investments “contaminated” the trial judge’s analysis of the appropriate compensation. In this regard, he drew our attention to Murphy v. Murphy 2000 BCSC 974, where Martinson J. noted that one spouse’s receipt of a “windfall” should not have the effect of reducing compensatory spousal support. (See paras. 29-30.)

[74] Assuming for the moment that Ms. Q.’s entitlement to the house in Calgary and other non-family assets can be analogized to a “windfall”, I agree that where the support is intended to be compensatory, the fact that the receiving spouse has other assets available to her should not affect the amount of compensation. I am not persuaded, however, that the trial judge made this error. In fact, it appears that Ms. Q.’s counsel at trial told the Court that she had made two “DivorceMate” calculations of spousal support. In the first calculation, counsel used the parties’ overall income as shown in their 2009 tax returns. Using these incomes, Ms. Q.’s counsel conceded that there would be no spousal support payable to her. In the second calculation, counsel used only the parties’ respective incomes from employment, which indicated Mr. K. would have to pay spousal support of approximately $3,570 (mid-range) per month for a minimum of 7.5 years and a maximum of 15 years. Counsel for Ms. Q. was not advocating a lump sum payment, but calculated a lump sum range between $256,000 and $330,000. On appeal, Mr. Holmes submits that the award should have been $300,000 rather than $150,000.

[75] In response, Mr. Hayward argues that the trial judge based his decision summarily on the fact that the children were older and school age, that Ms. Q. is a practising lawyer and that she had chosen not to work to capacity and could support herself on her earnings if she chose to do so. In his submission, the trial judge was entitled to take into account the income-producing potential of Ms. Q.’s capital assets and was entitled to impute income to her based on her disinclination to work full-time, at least until now. Mr. K. also notes in his factum that if one carries out the normal “DivorceMate” calculation using the respective income amounts fixed by the trial judge ‒ i.e., $177,468 for Mr. K. and $127,498 for Ms. Q. ‒ the high range of spousal support would be $286 per month, or a lump sum of $21,768 (assuming 11 years and three months). (I note that the trial judge had fixed Ms. Q.’s income at $127,498 because her counsel had put forth that amount as her income for the purposes of the child support calculations.) Thus Mr. K. contends on his cross-appeal that the award should not exceed $21,768.

[76] Section 16 of the Federal Child Support Guidelines, SOR 97-175 states that a spouse’s annual income is determined using the “sources of income set out under the heading ‘Total income’ in the T1 General form issued by the Canada Revenue Agency ...”. Section 6.1 of the Spousal Support Advisory Guidelines then states:

The Child Support Guidelines use a “gross” income measure, income before taxes and other deductions. This same gross income provides the basis for the calculations under all the formulas found in the Spousal Support Advisory Guidelines.

Thus Ms. Q.’s spousal support entitlement should not be calculated using solely her employment income as was suggested at trial, but should be based on her total imputed income of $127,489.

[77] It seems to me that it was open to the trial judge to choose the sum of $150,000, which lies approximately mid-way between the amounts sought by the respective parties. Certainly no reason in principle why this court should interfere with the trial judge’s conclusion on this point was suggested. In the result, I would dismiss both the appeal and cross-appeal with respect to spousal support.

Calgary House

[78] Finally, Mr. K. appeals the trial judge’s finding that the Calgary house is not a family asset and if successful on that point, contends that a 75-25% reapportionment in Ms. Q.’s favour should have been ordered.

[79] During the parties’ marriage, the property was rented out and managed by Ms. Q.’s father. The rental monies were deposited into an account which Ms. Q. kept separate and from which she paid expenses relating to the property. Mr. K.’s only involvement with the property was that he became a joint owner with Ms. Q. in 2003. She testified that she had not intended to transfer beneficial interest to him but had told him that she hoped he would hold the property in trust for the children should she predecease him. However, she did not ask him to sign a trust document, nor was there any other evidence of these intentions. She continued to report the entire rental receipts from the property for income tax purposes. Near the end of the marriage, Ms. Q. asked Mr. K. to sign his interest back to her, which he did. The trial judge found at para. 63 of his reasons that he was satisfied “the interest” in the house had never been conveyed to Mr. K. with the intention that he would be an owner during Ms. Q.’s lifetime and that it was not a family asset. (I note that no argument was made based on the operation of the land registration system in Alberta, presumably because the property is now in Ms. Q.’s name.)

[80] Mr. K. contends that the transfer of title into joint names or joint tenancy constitutes “use for a family purpose” even though the trial judge found that the house was not ordinarily used in the physical sense by the family, and rental monies from the house were not ordinarily used for a family purpose. Counsel analogizes Mr. K.’s “use” of this property to the purchase of an insurance policy on a spouse’s life to provide security for the family in the event of death. Life insurance policies have been found to be family assets by virtue of this purpose: see, e.g., Jiwa v. Jiwa (1992) 97 D.L.R. (4th) 252 (B.C.C.A.); O’Bryan v. O’Bryan (1997) 43 B.C.L.R. (3d) 296 (C.A.) at para. 33.

[81] I cannot agree, however, that being put on title as a joint tenant of property constitutes a “use” of the property in the way that an insurance policy is “used”. The whole purpose of an insurance policy is to provide security in the event of a death or catastrophic event. The purpose of a house is to be lived in. Although Mr. K. testified that he and his family stayed in the house when they were visiting in Calgary “as long as Stacey was living there”, it was open to the trial judge to find that this did not amount to ordinary use. If Mr. K. had been asked if he or his family “ordinarily used” the house, the answer would have been “no”. In the absence of some authority to the contrary, I am not persuaded the trial judge erred in his conclusion on this point. Nor am I persuaded there is any basis on which we could interfere with his finding of fact that Ms. Q. intended to transfer, and did transfer, only the legal interest and not a beneficial interest in the property to him in 2003.

[82] In the result, I would dismiss the cross-appeal.

Disposition

[83] I would allow the appeal only to the extent of setting aside the equal apportionment of the inherited family assets and would substitute therefor an order reapportioning them 75% to Ms. Q. and 25% to Mr. K. I would dismiss the cross-appeal in its entirety.

“The Honourable Madam Justice Newbury”

I Agree:

“The Honourable Mr. Justice K. Smith”

I Agree:

“The Honourable Madam Justice Neilson”