COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	Hellberg v. Netherclift,
	2017 BCCA 363

Date: 20171020

Dockets: CA44444; CA44564

Between:

Lucy Hellberg

Respondent

(Claimant)

And

Simon Netherclift

Appellant

(Respondent)

Before:

The Honourable Mr. Justice Goepel

The Honourable Mr. Justice Fitch

The Honourable Mr. Justice Hunter

On appeal from: An order of the Supreme Court of British Columbia, dated May 4, 2017 (Hellberg v. Netherclift, 2017 BCSC 738, Nelson Docket E19167) and June 13, 2017 (Hellberg v. Netherclift, Nelson Docket E19167).

Counsel for the Appellant:	D.M. King C.F. King
The Respondent Lucy Hellberg:	Appearing on her own Behalf
Place and Date of Hearing:	Vancouver, British Columbia August 18, 2017
Place and Date of Ruling/Judgment given to Parties, with Reasons to Follow:	Vancouver, British Columbia August 23, 2017
Place and Date of Reasons:	Vancouver, British Columbia October 20, 2017
Written Reasons of the Court

Summary:

The appellant challenges two orders. The first order was made following a summary trial. It granted the respondent joint custody of the parties’ four-year-old child and permitted her to relocate with the child from British Columbia to the United Kingdom in order to pursue more lucrative employment there. The second order dismissed the appellant’s application to reopen the trial on the basis of new evidence. Held: Appeals allowed. In the trial and the application to reopen the trial, the judge misapprehended material evidence regarding the parties’ economic prospects in British Columbia. The misapprehension of the evidence went to the core of the judge’s reasoning process. The trial judge also erred in principle by equating the respondent’s best interests with the child’s best interests and by concluding that relocation would serve the child’s best interests in the absence of any evidence that the respondent’s difficulty securing full-time, remunerative employment in British Columbia was having a detrimental impact on the child. The respondent’s relocation application was dismissed. An interim order was made providing that the parties share equally custody of the child on a schedule to be agreed upon by them. Issues related to custody, access and mobility rights were directed to be resolved by final order made following a trial of all matters raised in the respondent’s notice of family claim.

Reasons for Judgment of the Court:

I. Introduction

[1] These reasons address two appeals. The first (CA44444) is an appeal by Simon Netherclift from an order made on May 4, 2017, following a summary trial. The order granted Lucy Hellberg joint custody of the parties’ four-year-old son and the right to relocate with him from Nelson, British Columbia to the United Kingdom (the “UK”). The second (CA44564) is an appeal by Mr. Netherclift from an order made on June 13, 2017, dismissing his application to reopen the trial based on new evidence.

[2] On August 23, 2017, the judgment of this Court was pronounced with written reasons to follow. Both appeals were allowed, the orders made below were set aside and Ms. Hellberg’s relocation application was dismissed. The Court made an interim order under s. 16(2) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) [DA], with the following terms: the parties shall have joint custody of the child, such custody to be equally shared on a schedule to be agreed upon by them; until further order of the Supreme Court of British Columbia, or by agreement between the parties, the child shall not be moved from British Columbia; and, should Ms. Hellberg permanently relocate to the UK during the currency of the interim order, Mr. Netherclift shall have sole interim custody of the child and the child’s primary residence will be with him in Nelson, with generous access rights to Ms. Hellberg.

[3] The Court was clear in pronouncing judgment that issues relating to mobility rights should be resolved at trial together with the determination of the custodial rights of the parties. As a consequence of this interim order, Ms. Hellberg will be entitled, if she wishes, to raise the mobility issue at trial as part of the determination of the custodial rights of the parties in the context of the blended analysis contemplated by this Court’s judgments in Falvai v. Falvai, 2008 BCCA 503 at para. 25, and T.K. v. R.J.H.A., 2015 BCCA 8 at paras. 47–48.

[4] The pronouncement of judgment is indexed as 2017 BCCA 306 and should be read together with these reasons.

II. Factual Background

[5] The parties were 42 years of age at the time of trial. Both of them were born in the UK. Mr. Netherclift has lived in Canada since 2008. Ms. Hellberg’s parents and extended family reside in Devon County near Plymouth. Mr. Netherclift’s parents and most of his family also reside in the UK.

[6] The relationship between the parties began in December 2011 when Mr. Netherclift was visiting the UK. Subsequently, Ms. Hellberg took a one-year leave of absence from her teaching position in the UK to join Mr. Netherclift in British Columbia. They commenced cohabitation in Ymir, British Columbia (near Nelson) in July 2012. Ms. Hellberg returned to the UK at the end of October 2012. She said she did so because she was concerned that her relationship with Mr. Netherclift was not working out. In November 2012, while back in the UK, Ms. Hellberg learned that she was pregnant. She returned to Canada in December 2012. The parties married in January 2013 in Nelson. On July 21, 2013, they celebrated the birth of their son, who holds dual citizenship and has valid Canadian and UK passports.

[7] The parties separated in August 2014. On February 24, 2015, they entered into a Parenting Agreement. Recital “B” to the Agreement provides that “in 2013 [Ms. Hellberg] immigrated to Canada from England on a trial basis without having made a determination that Canada is where she wants to permanently reside”. Clause 5(2) of the Agreement provides that the parties “have considered the possibility of [Ms. Hellberg] returning to England with [the child] to reside, but no decisions in that regard have been made yet”. The parties also agreed that the child was residing with each parent “on a more or less equal basis”. Consistent with the Agreement, the parties shared custody of the child and co-parented on an equal basis until the summary trial.

[8] It was common ground at trial that the parties are capable and loving parents and that the child is closely bonded with both of them.

[9] Ms. Hellberg holds an undergraduate degree in creative arts, a Bachelor of Education and a post-graduate Certificate in Education from the University of Bristol. Before joining Mr. Netherclift in Ymir, Ms. Hellberg taught for seven years at Prior Park College in Bath and was earning approximately $60,000 CAD per year when she took a one-year leave of absence to join Mr. Netherclift in British Columbia.

[10] Since coming to Canada, Ms. Hellberg has had difficulty securing employment as a teacher. She holds a conditional BC Teaching Certificate and is qualified to compete for full-time and “teacher on call” positions, but only has experience teaching art, which she said limits her employment prospects. Since coming to British Columbia, she has worked part-time in low-paying, unrewarding jobs. The most she has earned in any year is $12,000. She also receives $560 per month in child benefits and $1,047 per month in blended child and spousal support payments.

[11] After the separation, Ms. Hellberg continued to reside in the family home while Mr. Netherclift took up residence in another structure on the same property that was previously uninhabited. They maintained this arrangement for about one year. Ms. Hellberg eventually found this arrangement to be intolerable and, in August 2015, moved away from the property to live with a female friend in Ymir. Ms. Hellberg later moved to Nelson, where she shares a home with another female friend. After Ms. Hellberg left the property, Mr. Netherclift returned to the family home and has lived there ever since.

[12] Ms. Hellberg said she cannot afford to live on her own in Nelson. She said she struggles to provide for herself and her son. She deposed that her car is unreliable and that she “cannot afford a decent vehicle or a nice home for [the child]” on the income, benefits and support payments available to her. Ms. Hellberg said she “cannot provide [the child] with a healthy lifestyle and the educational opportunities in Canada that [she] could provide for him in the UK”.

[13] Ms. Hellberg said she is frustrated, unfulfilled and disheartened with her life in Nelson.

[14] Ms. Hellberg said that her former employer, Prior Park College, asked her when she would be returning to the UK and invited her to apply for a teaching position in Bath. She had not done so at the time of the trial because she was uncertain if she would be permitted to return to the UK with the child.

[15] Ms. Hellberg deposed that, if permitted to relocate with the child to the UK, she would live in a self-contained annex in the home of her parents in County Devon. She said that she could teach on an on-call basis until she was able to secure a full-time teaching position. Her plan is to live independently with the child once she has obtained full-time employment in the UK. Prior Park College is more than a two-hour drive from the residence of Ms. Hellberg’s parents in County Devon.

[16] Mr. Netherclift is a self-employed teacher and outdoor guide. When the trial commenced, Mr. Netherclift was working for SelfDesign Learning Foundation, an online distributed learning organization. He teaches in the areas of youth and recreational leadership, and adventure tourism. At the time of the summary trial, he had just taken up part-time employment with the Kootenay Career Development Society, a position he described as being more stable with long-term prospects. He deposed that his earnings have ranged from $30,000–$54,000 per year. His declared income did not exceed $30,000 between 2012 and 2015.

[17] Mr. Netherclift deposed that he is establishing a good reputation in the Nelson area as an outdoor educator for youth. He said that he is not qualified to teach in the UK and that his job prospects there “are not good”.

[18] Mr. Netherclift filed six affidavits from third parties attesting to his dedication to the child and willingness to adjust his schedule when necessary to prioritize the child’s needs.

[19] The evidence as a whole established that the parties, both of whom are outdoor enthusiasts, are attentive to the child’s needs. On all the evidence before the trial judge, the child appears to be happy and well-adjusted. He regularly participates in recreational activities in the Nelson area. He has a dog named Chilco, who is cared for by Mr. Netherclift, numerous playmates, daycare providers and what appears to be a well-developed support network in Nelson. One of the affiants described the child as “thriving” in his current environment.

[20] The parties were not asked what they would do if the relocation application was granted or refused. Ms. Hellberg did not say whether she would remain in Nelson or return to the UK if her application was denied. Mr. Netherclift did not say at the time of the trial whether he would remain in Nelson or follow his son to the UK should the application be granted. Neither party sought to cross-examine the other on affidavits filed on the summary trial.

[21] Ms. Hellberg’s position at trial was based on: (1) superior employment prospects she considered to be available to her in the UK; and (2) family support available to the child in the UK. She argued that the child’s best interests would be served by an order permitting her to return to the UK where she would be able to provide him with a better standard of living, enhanced emotional support and private accommodation that she cannot afford in Nelson.

[22] Mr. Netherclift’s position at trial was that Ms. Hellberg has not made serious efforts to secure a full-time teaching position in British Columbia and that the child’s best interests would be served by an order dismissing her application to move him to the UK.

III. Procedural History

[23] Ms. Hellberg filed her Notice of Family Claim on January 19, 2016, seeking orders for divorce, property division and custody and access.

[24] By notice of summary trial application filed December 12, 2016, Ms. Hellberg sought an order permitting her to relocate permanently to the UK with the parties’ child. The application was made pursuant to R. 11-3 of the Supreme Court Family Rules [SCFR].

[25] Both the DA and the Family Law Act, S.B.C. 2011, c. 25 [FLA], were referenced by Ms. Hellberg in her notice of motion as the jurisdictional foundation for the application. In the same application, Ms. Hellberg sought an order allocating to her all of the parenting responsibilities set out in s. 41 of the FLA.

[26] By notice of application filed January 16, 2017, Mr. Netherclift sought an order that he be given the “day to day care of the child”, with reasonable and generous access to Ms. Hellberg in the event she decided to relocate to the UK. Mr. Netherclift’s application was brought pursuant to s. 16 of the DA.

[27] The parties agreed that the matter was suitable for disposition by way of summary trial. At para. 3 of his reasons for judgment, the trial judge referenced the parties’ lack of financial resources for a traditional trial and their need for a prompt resolution of the matter.

[28] The trial was heard by video link. The judge was in Prince Rupert. The parties and their counsel were in Nelson. No expert evidence was put before the judge addressing the best interests of the child.

[29] The parties ultimately agreed that Ms. Hellberg’s application was an originating application made pursuant to s. 16 of the DA.

IV. Reasons for Judgment on the Summary Trial Application

[30] In reasons for judgment released on May 4, 2017 (indexed as 2017 BCSC 738) (“RFJ”), the judge made no assumption about whether Ms. Hellberg would stay in British Columbia if the relocation application was dismissed, and no assumption about whether Mr. Netherclift would return to the UK if the application was granted. He considered that the only two options were that the child would reside in Nelson with Mr. Netherclift or in the UK with Ms. Hellberg. Neither party suggested on appeal that the judge erred by framing the alternatives in this way.

[31] In granting Ms. Hellberg’s application, the judge made these factual findings on the record before him:

· The child has a close relationship with Ms. Hellberg and Mr. Netherclift, both of whom are good parents capable of attending to his needs [RFJ at para. 31];

· The child is happy and secure with both parents [RFJ at para. 51];

· The “ideal situation” for the child would be a continuation of a shared parenting arrangement [RFJ at para. 49];

· It is unlikely that Ms. Hellberg’s employment opportunities will improve in Nelson [RFJ at para. 35];

· Ms. Hellberg’s lack of success in finding employment as a teacher in Nelson “arises from her only being qualified to teach art, which I accept limits the positions available” [RFJ at para. 13];

· Due to her qualifications and work experience, Ms. Hellberg has better employment and financial prospects in the UK than in British Columbia [RFJ at para. 39];

· Ms. Hellberg’s shared living arrangement in Nelson is not in the child’s best interests [RFJ at para. 56];

· Ms. Hellberg has no confirmed employment in the UK. Where she might end up living and working, what her working hours will be, and what childcare will be necessary in the UK were unknown at the time of the trial [RFJ at para. 38];

· The income earned by both parties in Nelson has been modest and is likely to remain so. Mr. Netherclift appears wedded to the type of work he enjoys and has not considered more remunerative and secure employment alternatives that might be available to him [RFJ at para. 43];

· Ms. Hellberg’s probable earnings in the UK would equal the combined incomes of the parties in British Columbia [RFJ at para. 52];

· There was no evidence, and no assertion by Mr. Netherclift, that Ms. Hellberg’s motivation for moving to the UK was improper [RFJ at para. 48];

· Ms. Hellberg and the child would have the support of her parents and extended family in the UK [RFJ at para. 39];

· If the child moves to the UK with his mother, he will benefit from stability because he will reside with the parent who is likely to have more secure and remunerative employment and his mother will be able to secure a residence for herself and the child [RFJ at para. 57];

· Ms. Hellberg’s enhanced earning opportunities in the UK improve the prospect of her obtaining a residence for herself and the child without having to share accommodations with someone else [RFJ at para. 52];

· While permitting the relocation would disrupt the child’s time with his father, the disruption is outweighed, given the child’s age, by the benefits that would arise from an order permitting Ms. Hellberg to relocate with him to the UK [RFJ at para. 55]; and

· It was in the child’s best interests that he be permitted to live with Ms. Hellberg in the UK, rather than with Mr. Netherclift in Nelson [RFJ at paras. 51, 58].

[32] The judge took note of the governing principles set out in Gordon v. Goertz, [1996] 2 S.C.R. 27. The judge held that Ms. Hellberg’s relative employment prospects in Nelson and in the UK were a “relevant consideration” in assessing the best interests of the child [RFJ at para. 54]. The judge referenced s. 16(10) of the DA, noting that while the achievement of maximum contact between the child and both parents must be considered, “it is not an overriding principle and observance of it must always be consistent with the best interests of the child” [RFJ at para. 49].

[33] In addition to permitting Ms. Hellberg to relocate to the UK with the child, the order provided that the parties would have joint custody of the child and that his primary residence would be with Ms. Hellberg. In the event that Mr. Netherclift became a resident of the UK in a location within a reasonable distance from Ms. Hellberg’s residence, the order contemplated that the parties would continue to share day-to-day care of the child on an equal basis. Further, the order provided Mr. Netherclift with access to the child for one month during the summers and at any other time he chose to visit the UK.

V. The Reopening Application

[34] A number of procedural complexities arose because of the manner in which the application to reopen the trial was pursued. These reasons will deal with only so much of the background as is necessary to resolve this appeal.

[35] On May 15, 2017, Mr. Netherclift filed a notice of appeal from the judge’s order permitting Ms. Hellberg to relocate the child to the UK.

[36] By notice of application filed June 6, 2017, before the order was entered, Mr. Netherclift applied to re-open the trial on grounds that significant new evidence, said to be material to the initial disposition of the matter, had come to light.

[37] The application to reopen was heard by way of teleconference.

[38] The parties agreed that the judge had a broad discretion to reopen the trial and that to obtain the order sought, Mr. Netherclift was obliged to show that: (1) a miscarriage of justice would probably occur without the rehearing; and (2) the new evidence sought to be presented would probably change the result of the trial: Moradkhan v. Mofidi, 2013 BCCA 132 at paras. 28–32; P.T. v. K.T., 2017 BCSC 520.

[39] The new evidence relied on by Mr. Netherclift to justify an order reopening the trial included the following:

· Ms. Hellberg obtained a temporary, part-time position teaching art at a high school near Nelson. Ms. Hellberg was hired to fill the position of a permanent employee who was away on sick leave. Her employment commenced on May 8, 2017, and was scheduled to end on June 30, 2017. She estimated that her gross earnings from this position would total about $3,920;

· In addition, since filing her second affidavit in support of the summary trial application in December 2016, Ms. Hellberg obtained some teacher on-call work. Between January 1, 2017, and May 23, 2017, she earned about $2,500 working as a teacher on-call;

· The Province of British Columbia had committed to funding additional teaching positions to reduce class sizes. In May 2017, the Superintendent of the Kootenay Lake School District (“KLSD”) advised a local media outlet that 18 job postings would be issued to fill the equivalent of 11.14 full-time teaching positions. In June 2017, KLSD announced that it had 80 job openings for teaching positions. The announcement of these additional teaching positions followed the Supreme Court of Canada’s judgment in British Columbia Teachers’ Federation v. British Columbia, 2016 SCC 49, [2016] 2 S.C.R. 407;

· In May 2017, Mr. Netherclift was offered a full-time, permanent job with the Kootenay Career Development Society. Mr. Netherclift deposed in support of his application to reopen the trial that his annual income was now $54,240 per year; and

· Two acquaintances of Mr. Netherclift, both of whom teach in the Nelson area, filed affidavits attesting to the fact that they have had no difficulty obtaining teacher on-call work, including work that is outside one of the affiant’s subject areas.

[40] Mr. Netherclift argued that the original decision relied heavily on the relative economic circumstances of the parties and the lack of employment opportunities for Ms. Hellberg in the Nelson area. He argued that the new evidence had a material bearing on the factors relied on by the judge as being fundamental to his assessment of the child’s best interests and to the resolution of Ms. Hellberg’s application.

[41] In one of her affidavits responding to the reopening application, Ms. Hellberg deposed that her only teachable subject is art and that she continues to experience difficulty finding permanent work because there are very few art teacher positions in the area and competition for these positions is fierce.

[42] The application to reopen was dismissed in oral reasons for judgment delivered on June 13, 2017 (Hellberg v. Netherclift (13 June 2007), Nelson E19167 (B.C.S.C.) [“RFJ #2”]).

[43] In dismissing the application to reopen the trial, the judge made these critical findings of fact:

· The evidence that KLSD had 80 job openings for teaching positions did not make clear whether these were new positions or postings made as part of the teachers’ collective agreement, which allows existing teachers to apply for other positions [RFJ #2 at para. 10(d)];

· Ms. Hellberg is not, in any event, qualified in British Columbia to take on either a full-time or permanent teaching position [RFJ #2 at paras. 10(b), 10(d), 11, 12];

· The new evidence did not change the fact that Ms. Hellberg’s prospects for securing full-time, better-paid employment were more promising in the UK than in Nelson given her education, accreditation and experience [RFJ #2 at para. 13];

· Mr. Netherclift did not establish that a miscarriage of justice would likely occur without a rehearing or that the new evidence would have changed the result of the trial [RFJ #2 at para. 16]; and

· Financial considerations were, in any event, not the only factors relied on by the judge in the assessment of the best interests of the child at trial. As noted earlier, the judge had also emphasized the support of extended family that the child would have in the UK [RFJ #2 at para. 16].

[44] The order, including the term that permitted Ms. Hellberg to permanently relocate the child to the UK, was entered on June 21, 2017. The order dismissing Mr. Netherclift’s application to reopen the trial was entered on July 21, 2017.

[45] In July 2017, Ms. Hellberg relocated with the child to the UK. She returned in August to permit Mr. Netherclift to have access to the child as contemplated by the order entered on June 21, 2017. The child was in British Columbia when this Court pronounced judgment on August 23, 2017.

VI. The Grounds of Appeal

[46] The appellant advanced two grounds of appeal that relate to both the trial judge’s decision to permit relocation and his decision to dismiss Mr. Netherclift’s application to reopen the trial. As framed by the appellant in his factum, the grounds of appeal were:

1. The judge erred in fact by misapprehending the significance of the new evidence presented on the application to reopen the trial; and

2. The judge erred in principle by failing to consider “in the round” all the relevant factors in assessing the child’s best interests.

[47] In oral argument, Mr. Netherclift clarified that his position on the first ground of appeal was that the alleged misapprehension of evidence can be traced to the trial judgment, and that the error only became obvious when oral reasons for judgment dismissing the application to reopen the trial were delivered.

[48] In addition to these two grounds of appeal, each of the parties, with the consent of the other, sought to adduce fresh or new evidence in conjunction with the appeals. Neither party filed an application to adduce fresh evidence.

[49] Ms. Hellberg, who was unrepresented on appeal, appended to her factum information from two websites comparing the cost of living in Plymouth, England to the cost of living in Vancouver, British Columbia. In addition, she appended a letter from the British Columbia Ministry of Education dated September 2, 2015, which explained the terms of her conditional teaching certificate and advised her of the steps she was required to take to obtain a permanent teaching certificate in British Columbia.

[50] Mr. Netherclift sought to adduce the affidavit of a legal assistant that appends a KLSD job posting for a fine arts teacher at a school 20 minutes from Nelson. This employment opportunity was posted on August 15, 2017, with a closing date of August 22, 2017. The posting sought to fill a .56 full-time equivalent position for the first term of the 2017/18 school year with “a possibility of extending in the second half of the semester as well”. It appeared to be common ground that this posting was for the temporary, part-time position Ms. Hellberg filled in May and June 2017.

VII. Analysis

(a) Standard of review

[51] The standard of review applicable on this appeal was addressed in Fotsch v. Begin, 2015 BCCA 403 at paras. 66–68:

[66] It is well established that an appellate court may not interfere with the exercise of discretion of a trial judge in the absence of a demonstrated material error of law or fact, a serious misapprehension of the evidence, or a decision that is “clearly wrong”. …

[67] The parameters of this Court’s jurisdiction to interfere with an order in a family matter was helpfully summarized by Madam Justice Newbury in R.E.Q. v. G.J.K. at para. 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 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 at paras. 14-15. 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.”

[Emphasis added.]

(b) The Applications to Adduce Fresh and New Evidence

[53] As noted earlier, by their informal applications each of the parties sought to adduce additional evidence on appeal. Some of the evidence sought to be adduced is properly characterized as “fresh” evidence, while some of it is “new” evidence. Fresh evidence is evidence that was in existence at the time of the trial: Struck v. Struck, 2003 BCCA 623 at para. 37. New evidence is evidence of matters that occurred after the order under appeal was made: Jens v. Jens, 2008 BCCA 392 at para. 24.

[54] The test to be applied in determining whether to admit new or fresh evidence was set out in Palmer v. The Queen, [1980] 1 S.C.R. 759 at 775:

1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: McMartin v. The Queen, [1964] S.C.R. 484;

2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

3. The evidence must be credible in the sense that it is reasonably capable of belief; and

4. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[55] In Stav v. Stav, 2012 BCCA 154 at para. 31, this Court noted that a “slightly more elastic” approach to the admissibility of fresh evidence is sometimes appropriate in family law cases, particularly where the best interests of children are engaged. The Court must, however, be cautious in considering the admission of either new or fresh evidence: Stav at para. 32. As was explained in Fotsch v. Begin at para. 21, “to permit the admission on appeal of new factual circumstances that occur after the trial judgment would offend the principles of certainty and finality.”

[56] While the consent of the parties to the admission of new evidence is a factor for this Court to consider, it is not determinative and the ultimate decision about whether the interests of justice require the admission of the evidence rests with the Court: McCaffrey v. Paleolog, 2011 BCCA 378 at para. 61.

[57] Applying these principles to the case at bar, we would dismiss the parties’ applications to adduce new and fresh evidence on appeal. The new evidence sought to be adduced by Mr. Netherclift could not reasonably, when taken with the other evidence led at trial, be expected to have affected the result. His proposed new evidence speaks only to the existence of a part-time, term-limited teaching position for which Ms. Hellberg could have applied. The fresh evidence appended to Ms. Hellberg’s factum could have been adduced at trial through the exercise of due diligence. More importantly, it could not reasonably be expected to have affected the result.

(c) Misapprehension of Evidence

[58] The thrust of the evidence tendered by Mr. Netherclift on the application to reopen was that: (1) both on-call and permanent, full-time teaching positions are available to Ms. Hellberg; and (2) that Mr. Netherclift’s income increased to $54,240 after the summary trial decision was rendered.

[59] The judge concluded that this new evidence did not warrant reopening the trial because it would not have changed the result. Central to the judge’s determination of this issue was his understanding that Ms. Hellberg was not qualified to take on either a full-time or permanent teaching position in British Columbia. For ease of reference, the judge said:

· “[Ms. Hellberg] is not qualified in BC to take on a full-time teacher position” [RFJ #2 at para. 10(d)];

· “[Ms. Hellberg] remains, as I understand it, unqualified to take a permanent teaching position” [RFJ #2 at para. 11];

· “[Ms. Hellberg] is still faced with part-time work, is not qualified for full-time teaching positions, and her economic prospects overall [in Nelson] are not significantly different” [RFJ #2 at para. 12]; and

· “I determined that the likelihood of [Ms. Hellberg] securing full-time, much better paid employment was greater [in the UK] than in Nelson, given her education, accreditation, and experience in the United Kingdom. I am not convinced that has changed” [RFJ #2 at para. 13].

[60] There was no evidence that Ms. Hellberg’s conditional teaching certificate disqualified her from either full-time or permanent teaching positions in British Columbia. In her factum, Ms. Hellberg acknowledged that her conditional teaching certificate permits her to teach on a full-time and permanent basis. She submitted only that no full-time, permanent positions for art teachers have opened up in the Nelson area.

[61] While we are satisfied that the judge misapprehended the evidence on this important issue, we are not unsympathetic to the challenges he faced in determining this application. The state of the evidence on this, and a number of other critical points, was incomplete and unclear. The opportunity for clarifying or fleshing out important issues was further hampered by the parties’ determination to proceed by summary trial.

[62] Regrettably, the judge’s misapprehension of the evidence on this point went to the foundation of his reasoning process and played an essential role in the making of the original order and in the dismissal of Mr. Netherclift’s application to reopen the trial.

[63] Ms. Hellberg’s application to relocate the child to the UK was granted because the trial judge determined that: (1) it was unlikely Ms. Hellberg’s employment opportunities in Nelson would improve; (2) a move to the UK would provide greater financial stability for the child than is available to him in Nelson given that Ms. Hellberg’s probable earnings in the UK would equal the combined income of the parties in Nelson; (3) the income of both parties in Nelson was limited and would likely remain so; (4) Ms. Hellberg’s shared living arrangement in Nelson, driven by her financial circumstances, was not in the best interests of the child; and (5) the child would have the support of his extended family in the UK.

[64] The evidence tendered by Mr. Netherclift on the reopening application addressed, directly or indirectly, four of the five considerations the judge relied on in granting Ms. Hellberg joint custody and guardianship with the right to relocate the child to the UK. The evidence was both cogent and material. In our view, the primary consideration informing the judge’s assessment of the child’s best interests turned on the financial circumstances of the parties.

[65] The evidence tendered by Mr. Netherclift on the reopening application was capable of establishing that Ms. Hellberg’s employment opportunities in the Nelson area had improved. The evidence established that Mr. Netherclift’s income had significantly increased and would no longer remain fixed at a low level. This increase in income could potentially result in an increase in Mr. Netherclift’s child and spousal support obligations and ameliorate, to some extent, Ms. Hellberg’s financial burdens. In addition, the evidence established that it was no longer the case that Ms. Hellberg’s income-earning potential in the UK would equal the combined incomes of the parties in Nelson. In short, the evidence sought to be tendered on the reopening application suggested that most of the critical assumptions on which the trial judgment rests were shown by subsequent events to be incorrect.

[66] The judge’s determination that Mr. Netherclift had not met the test set out in Moradkhan v. Mofidi and that it was not in the interests of justice to reopen the trial is rooted in his mistaken conclusion that Ms. Hellberg was ineligible for full-time temporary or permanent teaching positions. This misapprehension of the evidence went to the very core of the judge’s analysis of the central issue in the case.

[67] A trial judge exercises a broad discretion in determining whether the interests of justice require an order reopening the trial. At the same time, the discretion is not unfettered and must be exercised judicially: Hansra v. Hansra, 2017 BCCA 199 at paras. 44, 52–59. Generally, the discretion to reopen should be exercised with restraint. Parties must not be permitted to use the rule as a means of re-arguing or re-casting their cases. The interests of justice in finality loom large on an application of this kind.

[68] In this case, however, the exercise of discretion was premised on a misapprehension of evidence fundamental to the judge’s reasoning process. Under these circumstances, it was necessary for this Court to intervene.

[69] We are satisfied that the misapprehension of evidence, which only clearly manifested itself on the reopening application, was operative when the judge issued reasons for judgment permitting Ms. Hellberg to relocate the child to the UK. In those reasons the judge said, “[Ms. Hellberg’s] lack of success arises from her only being qualified to teach art, which I accept limits the positions available” [RFJ at para. 13]. In reviewing Ms. Hellberg’s position on this issue, he noted that she “emphasizes the lack of work in British Columbia given her current certification as an art teacher” [RFJ at para. 34]. The judge also found that Ms. Hellberg’s “qualifications” were such that she had better financial prospects in England than in British Columbia [RFJ at para. 39]. There was no evidence that Ms. Hellberg is only qualified to apply for art teacher positions. Ms. Hellberg is eligible to apply for full-time positions, including positions outside her primary subject area.

[70] The summary trial judgment was rendered about five weeks before the application to reopen was dismissed. Even ignoring what the judge said in the trial judgment, it would be reasonable to suppose that the judge was proceeding on the same mistaken understanding at the time of trial. For the reasons noted, this mistaken understanding regarding Ms. Hellberg’s qualifications went to a critical factual issue that was material to the trial judge’s reasoning process.

[71] In our view, the judge’s misapprehension of the evidence on this point alone justified the order allowing the appeal and setting aside both orders made in the trial court.

(d) Failure to Consider Factors Informing the Child’s Best Interests “In the Round”

(i) Analytical Framework

[72] The importance of considering the best interests of the child “in the round” can be traced to this Court’s judgment in Hejzlar v. Mitchell-Hejzlar, 2011 BCCA 230 per Saunders J.A. at para. 46. Although the expression was used in a particular context in Hejzlar, it is one of general application and simply means that consideration of the child’s best interests requires a fully-rounded analysis that takes into account all relevant factors.

[73] This case is factually different from Gordon v. Goertz, in which the mother had sole permanent custody of the child. In this case, both parties exercised, by agreement and practice, shared custody on an equal basis. The child resided with both parties on an alternating schedule. Both parties were equally involved in his life and the evidence before the judge was that the child was happy and secure in their care. Further, there was no previous custody order to vary. This was an originating application and, as a consequence, there was no threshold issue of whether there had been a change in circumstances since the making of a previous custodial order. Despite the differences between this case and Gordon v. Goertz, the framework developed in Gordon v. Goertz applies here, with the exception of analytical steps peculiar to variation applications: Hejzlar at para. 22.

[74] Mobility applications engage the difficult problem of assessing a child’s best interests against competing parental visions of how those interests ought to be achieved. The problem was particularly stark here as Ms. Hellberg’s application, if granted, would uproot this four-year-old child and relocate him half a world away. Permitting the relocation would permanently and profoundly alter the child’s relationship with his father – a custodial parent.

[75] Section 16 of the DA provides, in material part, as follows:

Order for custody

16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

…

Factors

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

…

Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[76] Gordon v. Goertz established that the only issue in a case of this kind is the best interests of the child. Each case will turn on its unique circumstances, but the best interests of the child must be determined from a child-centred perspective. The focus of the inquiry is not the interests and rights of the parents, but the ability of a parent to satisfy the child’s needs is a relevant consideration. In a case involving two custodial parents, the following legislative goals and factors should be considered (see Gordon v. Goertz at 61):

1. The existing custody arrangement and relationship between the child and each of the custodial parents;

2. The principle embodied in s. 16(10) of the DA that a child should have as much contact with his or her parents as is consistent with the child’s best interests;

3. The views of the child, where it is appropriate to solicit those views;

4. The 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;

5. Disruption to the child of a change in custody; and

6. Disruption to the child consequent on removal from family, schools, and the community the child has come to know.

[77] As we have noted, substantial deference is owed to the manner in which the judge exercised his discretion. In the absence of a material error (including a significant misapprehension of the evidence), an error in principle or a demonstration that the result is clearly wrong, there is no room for appellate intervention. Further, it is well-established in this jurisdiction that intervention is not justified simply because an appellate court would have weighed the relevant factors differently: R.E.Q. v. G.J.K., 2012 BCCA 146 at paras. 33–34. As Newbury J.A. noted in R.E.Q., the Supreme Court of Canada in Gordon v. Goertz at para. 52 appears to have applied a lower standard of review, asking whether the judge failed to “give sufficient weight to all relevant considerations”. This also appears to have been the standard of review applied by the Ontario Court of Appeal in Berry v. Berry, 2011 ONCA 705. We do not, however, consider it to be open to this Court to adopt this lower standard of review in light of the Supreme Court of Canada’s subsequent judgment in Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014 at paras. 12–16.

(ii) Application of the Framework to the Case at Bar

[78] Because of the deferential standard of review in this case, this Court must not intervene solely on the basis that it would have assigned more or less weight to a particular factor in the analysis. For example, no grounds to reverse would exist if this Court concluded, without more, that the judge assigned insufficient weight to the effect the proposed relocation would have on the relationship between the child and a custodial parent, or that the judge insufficiently emphasized the maximum contact principle set out in s. 16(10) of the DA. It is not the role of this Court to substitute its opinion for that of the trial judge: Bassett v. Magee, 2015 BCCA 422 at para. 57.

[79] Despite the substantial deference owed to the exercise of the judge’s discretion, we are of the view that, in addition to misapprehending the evidence on one critical point, the judge erred in principle by allowing the relocation application in the absence of evidence that the child’s best interests would be better served in the UK than in Nelson.

[80] The trial judge emphasized Ms. Hellberg’s reasons for wanting to relocate the child to the UK. He was not wrong to do so. In T.K. v. R.J.H.A. at para. 52, this Court concluded that the reasons for a parent’s proposed move are relevant to the issue of whether the move will meet the needs of the child or affect (positively or negatively) that parent’s ability to meet the child’s needs. This Court also concluded that the Supreme Court of Canada’s holding in Gordon v. Goertz, that a parent’s reasons for moving will be a factor only in exceptional cases where the reason for the move is tied to the ability of that parent to meet the needs of the child, should be modified in cases where the parties previously agreed that the child’s best interests are met by both parents sharing parental responsibilities as joint custodians of the child:

… where there is a…pre-existing de facto joint custody and/or shared residency arrangement that is found, on an initial application, to be in the best interest of the children, the application of para. 49(7)(e) [the paragraph in Gordon v. Goertz holding that a parent’s reason for moving will be a relevant factor in the analysis only in exceptional cases where it is relevant to that parent’s ability to meet the needs of the child] 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 children’s needs can be met by only one of the parents.

[81] The circumstances contemplated in T.K. v. R.J.H.A. were present in this case. The judge, on the evidence before him, found that a continuation of shared parenting is the “ideal situation” for the parties’ child. Ms. Hellberg’s reasons for moving are, therefore, very relevant to determining whether the child’s needs can be met by only one parent.

[82] A proposed move motivated by financial considerations may “conduce to the best interests of the child”: Karpodinis v. Kantas, 2006 BCCA 272 at para. 27. In Stav, this Court emphasized that a move said by the relocating party to be justified as a result of financial or emotional gains that will ultimately inure to the benefit of the child is a relevant consideration to weigh in the balance:

[88] As noted in this passage, often 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 children’s 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 children’s 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 children’s 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 children’s 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 children’s 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 had limited contact or involvement with the children. These are but two scenarios along a broad spectrum.

[Emphasis added.]

[83] Since Gordon v. Goertz was decided, the workforce has become even more mobile. Moves for financial reasons that are tied to the ability of a parent to meet the needs of their children are probably less exceptional now than 20 years ago.

[84] On a related point, a parent’s emotional state may also be a relevant factor in determining the best interests of a child, as a child’s interests are necessarily intertwined with the welfare of his or her parents: S.S.J. v. J.W.W., 2010 BCCA 55 at para. 33.

[85] What must be remembered, however, is that the reason for the move is only relevant insofar as it relates to the best interests of the child. The reasons for the move simply permit a contextual assessment of the impact of the move on the best interests of the child: Falvai at paras. 29, 31.

[86] In this case, the disruptive impact the proposed relocation could have on the child had to be weighed against the benefits the child was likely to enjoy if the relocation was permitted. The order made by the judge, for practical purposes, all but severs physical contact between Mr. Netherclift, a custodial parent, and his child, assuming Mr. Netherclift stays in British Columbia. The parties are of relatively modest means and likely cannot afford to pay for the child and an accompanying adult to travel between British Columbia and the UK more than once a year. To be weighed against this was the fact that, at the time of the summary trial, Ms. Hellberg’s earning capacity was higher in the UK and the child’s standard of living would likely improve if relocation was permitted. We emphasize that, taken in its highest, the only evidence before the judge was that Ms. Hellberg’s prospects were better in the UK. She had no confirmed work and no permanent residence.

[87] In our view, the judge granted Ms. Hellberg’s application in the absence of any evidence that her financial circumstances or emotional state were having any impact on the child. Ms. Hellberg’s circumstances were only relevant if they were having a deleterious impact on the child’s well-being that would likely be ameliorated by the proposed move. There was no evidence linking Ms. Hellberg’s financial and emotional circumstances in Nelson to the child’s best interests. The record is virtually silent on this point. There was no description of the child’s living arrangement when he was with Ms. Hellberg from which a non-speculative factual inference could be drawn that the shared living arrangement was detrimental to the child’s best interests. As this Court noted in Fuller v. Harper, 2010 BCCA 421, 9 B.C.L.R. (5th) 236 at para. 38, if there are no positive proven facts from which an inference can be drawn, the inference is merely speculative.

[88] In the absence of any evidence that Ms. Hellberg’s financial and emotional circumstances in Nelson were having a negative impact on the child’s comfort, happiness or personal development, the judge resolved the central issue that arose at trial in a factual vacuum. His conclusion that the child’s best interests would be advanced by permitting Ms. Hellberg to relocate with him to the UK was speculative and, therefore, reflects palpable and overriding error.

[89] Further, the judge erred in principle by effectively equating Ms. Hellberg’s interests with the child’s interests. Ms. Hellberg is clearly unhappy with her shared living arrangements in Nelson, but the only evidence before the judge was that the child is well-adjusted, happy, and fully integrated into and thriving in his community.

[90] These two related errors went to the root of the judge’s reasoning process and influenced resolution of this application. Had these errors not been made, it cannot be said that the application would have been resolved in the same way on the record before the summary trial judge.

[91] Ms. Hellberg may well be in a position to adduce evidence establishing that her income and current shared living arrangement is having a deleterious impact on the child’s physical or emotional needs, but that evidence was not put before the trial judge. As we emphasized in the pronouncement of judgment, we were not deciding whether Ms. Hellberg should ultimately be permitted to relocate the child to the UK. That is a matter to be resolved at trial in conjunction with the determination of the custodial rights of the parties on what will, no doubt, be a very different record than the record that was before the summary trial judge. We say only that there was a paucity of evidence before the summary trial judge that Ms. Hellberg’s emotional state or financial challenges were having any impact on the child.

(e) Remedy

[92] In light of the errors identified, this Court was faced with two remedial options: to assess the evidence and the relevant considerations and affirm, vary or set aside the order of the judge; or to set aside the order and direct a new hearing of the relocation application. We chose the former approach. As in Stav (at paras. 121–122), the evidence in this case is such that this Court can make its own determination of the best interests of the child on the unimpugned findings of the judge. Remitting the relocation issue to the trial court could result in potentially harmful delay and unnecessary costs to the parties. In addition, mobility rights are bound up with the determination of custodial rights and these issues ought to be decided together.

[93] On the evidence before the judge, and applying the Gordon v. Goertz factors applicable to this case, we were satisfied that the child’s best interests would be served by an order dismissing Ms. Hellberg’s relocation application. In coming to this conclusion, we relied, in particular, on: the existing custodial arrangements and the judge’s conclusion that shared parenting was the “ideal situation” for the child; the disruption in the child’s life that a move to the UK would likely entail; the absence of evidence that Ms. Hellberg’s circumstances in Nelson were having a deleterious impact on the child’s best interests; the need to give effect to the maximum contact principle set out in s. 16(10) of the DA; and the fact that Ms. Hellberg’s plans for employment in the UK were not fully formed and could well entail multiple moves for the child. In these circumstances, we were satisfied that application of the relevant factors warranted the dismissal of Ms. Hellberg’s relocation application.

[94] As noted earlier, in the order pronouncing judgment, this Court exercised its powers under s. 9(1)(c) of the Court of Appeal Act, R.S.B.C. 1996, c. 77, to make an interim order that the parties have joint custody of the child to be shared equally on a schedule to be agreed upon by them.

[95] At the time of the hearing, we were advised that a trial of all issues in this matter, including the custodial rights of the parties, could be accommodated in Nelson before the end of the year. As we noted when judgment was pronounced, it is in the child’s best interests that this litigation be brought to an expeditious conclusion. Issues relating to the custodial rights of the parties and any relocation application Ms. Hellberg decides to remount should be resolved together and by way of final order in the family proceedings. As the order we have imposed is an interim order, it will not be incumbent upon Ms. Hellberg to establish a material change in circumstances if, in the context of the determination of the parties’ custodial rights, she applies to relocate the child to the UK. We reiterate that the parties should establish a more satisfactory evidentiary foundation to assist the trial judge in determining whether relocation is in the child’s best interests.

[96] Before concluding, we wish to comment on one aspect of the order made below and on the procedure adopted in this case.

[97] The judge in this case made an order for joint custody while permitting Ms. Hellberg to relocate the child from British Columbia to the UK. We recognize that identifying the best interests of the child is a case-specific endeavour. We also recognize that the inquiry cannot be laden by presumptions about the type of custodial arrangement that will be in the child’s best interests. Even so, the best interests of the child must be found within the “practical context of the reality of the parents’ lives”: Gordon v. Goertz at para. 59. In all the circumstances of this case, we do not see how the joint custody order made by the judge could be workable given the geographic separation that would result from granting Ms. Hellberg the right to relocate the child to the UK: see, on this point, Robinson v. Filyk (1996), 28 B.C.L.R. (3d) 21 at paras. 16, 33.

[98] With respect to the procedure utilized in this case, it is apparent from the foregoing discussion that there were a number of evidentiary gaps at trial. The extent to which Ms. Hellberg was qualified to teach in British Columbia was less than clear. Given that her relocation application rested on her comparatively more favourable economic prospects in the UK, and the extent to which this would benefit the child, this was a critical issue that ought to have been clarified. There was virtually no evidence before the judge about the child’s living arrangements while he was with Ms. Hellberg in Nelson, and no evidence from which a non-speculative factual inference could be drawn that those living arrangements were having a deleterious impact on his best interests. Although evidence of the child’s connections to Nelson was adduced at trial, there was no expert evidence before the trial court addressing whether the proposed move would positively or negatively impact the child.

[99] Against this unsatisfactory evidentiary background, the judge was asked to hear the trial by video link and the reopening application by way of teleconference. The manner in which the trial and reopening application were heard undoubtedly limited the ability of the trial judge to make the complex and nuanced assessment required of him – an assessment that could profoundly influence the course of this child’s life. We intend no criticism of the judge on this account. He was attempting to accommodate the parties and the scheduling imperatives of the Supreme Court.

[100] In retrospect, it is our view that this case ought to have been referred to the trial list pursuant to Rules 11-3(15) and (17) of the SCFR. The resolution of custody and mobility applications on an incomplete record entails a number of risks. Chief among them is that a final order may be made uninformed by significant evidence that would likely have emerged in a conventional trial. Once made and entered, that final order can only be varied upon demonstration of a material change in circumstances. Given what is at stake in applications of this kind, particularly those involving international relocation from Canada, the parties must take steps to ensure that the record thoroughly addresses the relevant factors.

[101] In saying this, we do not wish to be taken as suggesting that a presumption arises that mobility issues are best resolved in a full-blown trial: see, on this issue, M.T. v. R.A., 2014 BCSC 795, wherein Saunders J. addressed, in the context of the FLA, the benefits associated with the summary determination of mobility applications in cases where there is a written agreement respecting parenting arrangements. Parenthetically, we note that M.T. was a case in which a s. 211 report was ordered to be prepared in advance of the summary trial.

[102] We also recognize the practical difficulties for parties of limited means in putting expert evidence addressing the best interests of the child before the court. Regrettably, provincial resources allocated to the preparation of publicly funded reports addressing the needs of a child have not kept pace with demand and delays in obtaining such reports are considerable. Although the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, endorsed enhanced use of summary trials to improve access to justice, the Court did not purport to set down criteria guiding the appropriateness of a summary trial in case-specific contexts. At the end of the day, the suitability of a matter for determination by way of summary trial is a case-specific inquiry. We say only that in this case the child’s interests would have been best served by a conventional trial in which the parties personally appeared before the judge.

[103] In addition, it is always important to remember that at the hearing of a summary trial a judge is not required to grant judgment if he or she is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or is of the opinion that it would be unjust to decide the issues on the application. This is so regardless of whether the parties are in agreement that the matter be resolved by way of summary trial, and is of particular import when the child whose best interests are being determined is not represented at the hearing.

[104] Our disposition in this matter is as set out in the oral pronouncement of judgment indexed as 2017 BCCA 306.

VII. Costs

[105] Costs of the summary trial will be left to the discretion of the judge hearing the trial of all issues raised in the respondent’s Notice of Family Claim.

“The Honourable Mr. Justice Goepel”

“The Honourable Mr. Justice Fitch”

“The Honourable Mr. Justice Hunter”