IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

N.L. v. D.L.,

 

2018 BCSC 1580

Date: 20180914

Docket: E170668

Registry: Vancouver

Between:

N.L.

Claimant

And

D.L.

Respondent

Before: The Honourable Mr. Justice Bowden

Reasons for Judgment

Counsel for the Claimant:

M. Huberman

Counsel for the Respondent:

C. Linde

Place and Date of Trial:

Vancouver, B.C.

February 13-16, 2018

February 19-23, 2018

February 26-March 2, 2018

April 3-6, 2018

April 9-13, 2018

June 22 & August 2-3, 2018

Place and Date of Judgment:

Vancouver, B.C.

September 14, 2018


 

Introduction

[1]             In these family law proceedings, the parties seek various orders including orders for a divorce, parenting arrangements, spousal support and the division of family property and debt.

[2]             In relation to parenting arrangements, the Mother, N.L., seeks sole custody and permission to relocate with the children to New Zealand as the primary care provider. She also asks that parenting time by the Father, D.L., continue to be supervised until otherwise agreed or as ordered by the court.

[3]             The Father seeks sole custody of the children in Vancouver as the primary care provider with shared parenting responsibilities and no supervision.

Background

[4]             The parties were married on October 2, 2010 in Auckland, New Zealand. They separated on December 18, 2016.

[5]             At the time of trial the Mother was 33 years old and the Father was 45.

[6]             There are two children of the marriage, namely T.T.L., born October 27, 2013 and M.A.L., born February 5, 2016.

[7]             The Mother was born in South Africa and left there with her parents and two younger siblings when she was 14 years old to live in New Zealand. Her parents and siblings continue to reside in New Zealand.

[8]             The Mother graduated from high school in Auckland. She then obtained a bachelors degree in health science at Auckland University of Technology in November 2005 at the age of 21. She began working at Auckland City Hospital as an occupational therapist and continued to work there until she and the Father left for Canada in 2011. By the time she left New Zealand her annual income was $60,000 (NZ).

[9]             The Father was born in Canada and is a citizen of both Canada and New Zealand. He has lived in both countries from time to time. He has not graduated from high school and has no post-secondary education. He had been living and working in New Zealand for about 5 years when he met the Mother. His father, C.L., is a New Zealand citizen and resides there with his spouse following his divorce from the Father’s mother, P.L., in B.C. He spends half of each year in B.C. Some of the Father’s extended family on his father’s side reside in New Zealand. P.L., and the Father’s sister, T.L., as well as some extended family on P.L.’s side, live in the lower mainland of British Columbia.

[10]         The parties met in Auckland and started dating in March 2009. In 2010 they visited P.L. in Vancouver. On their way back to Auckland in March 2010, they stopped in Hawaii and the Mother accepted the Father’s proposal of marriage.

[11]         They planned their wedding and it was paid for by the Mother’s parents. Before the wedding they discussed the possibility of moving to B.C.

[12]         They were married in Auckland on October 2, 2010. In January 2011, they decided to move to B.C. because the Father was unemployed and he believed that there would be more work available in B.C. He moved to B.C. in April 2011 and the Mother followed in June of that year after obtaining a visa allowing her to work in Canada.

[13]         They moved in with P.L. at her condominium in White Rock and lived there from June 2011 until March 2012. They then rented an apartment in Richmond and stayed there until July 2013 when they moved into a townhouse in Richmond. In February 2015, when T.T.L. was just over one year old, they moved into a townhouse in Surrey, B.C. and that became their family home.

[14]         Soon after arriving in B.C., the Mother registered with the Canadian Association of Occupational Therapists and on July 25, 2011 she began working as an occupational therapist at Vancouver General Hospital. She continues to work there and currently earns $74,000 per year and is entitled to a child tax credit of $1,000 per month.

[15]         The Father remained unemployed until April 2012 when he began working for Fedex. He continues to be employed by Fedex and his income is currently about $20,000 per year. He plans to eventually get into the real estate field. In April 2017 he enrolled in a real estate program at U.B.C. but says that he has put that course on hold because of the stress of litigation. If and when he finishes he expects to obtain a real estate license and has prospective employment with a realtor.

[16]         T.T.L. was delivered by way of an emergency C-section on October 27, 2013. The Father and P.L. were very supportive of the Mother and her mother, S.M., travelled to Vancouver from New Zealand in October to help with T.T.L.’s care for about a month.

[17]         In December 2013, the Mother, Father and T.T.L. travelled to New Zealand to visit family. The Mother’s grandparents travelled there from Africa. It appears that the visit went quite well.

[18]         The parties returned to Vancouver in January 2014. In February 2014, they travelled to Florida with P.L. and the Father’s nephew. Upon returning to Vancouver, the Father returned to work and the Mother remained on maternity leave from the hospital until July.

[19]         The parties purchased the family home in July 2014 for $486,000 with a down payment of $24,000 which was given to them by P.L. The Mother paid bi-weekly mortgage payments of $865.72, strata fees of $143.85 and insurance of $400 per year. The Father paid $150 per month towards those costs and contributed towards their living expenses. The Mother continued with those payments until they separated.

[20]         The Father worked from about 5:30 a.m. until noon five days a week. After returning to work, the Mother worked from 8:00 a.m. until 4:00 p.m. five days a week but in different five-day blocks during the year.

[21]         T.T.L.’s care was organized around the work schedules of the parties and the availability of P.L. to assist with child care. In the mornings when both parties were working, P.L. would care for T.T.L. until the Father arrived home after which he would care for her. The Mother would take over T.T.L.’s care when she returned home from work in the late afternoon. On one occasion, the Mother’s sister visited for a month during which time she helped with T.T.L.’s care.

[22]         When the Mother returned from work she would bath T.T.L., breast-feed her and put her to bed. On her days off the Mother would care for T.T.L.

[23]         T.T.L. was enrolled in day-care in February 2015 and attended from 9:00 a.m. until 4:00 p.m. from Monday to Thursday. The cost was $850 per month and it was paid by the Mother.

[24]         P.L. helped with the care of the children. On the days that the Mother left for work at 6:15 a.m. P.L. would drive the Mother to the bus stop and then take T.T.L. to daycare. The Father would pick her up from daycare in the afternoon. On the days that the Mother was working and T.T.L. was not in daycare P.L. would provide the care for T.T.L. She would also help with grocery shopping and let the Mother use her car when she went shopping.

[25]         In July 2015 the parties went on vacation to Hawaii and had a pleasant time.

[26]         The Mother’s parents came to B.C. for a visit in mid-December 2015. Her father, A.M., stayed until sometime in January and her mother, S.M., stayed until sometime in February 2016 to help the Mother after M.A.L. was born. While they stayed with the parties, the Mother’s parents cared for T.T.L. and she did not require day care.

[27]         M.A.L. was born on February 5, 2016 and the Mother went on maternity leave. The Mother says that M.A.L. was not planned. The Father disagrees. Nothing really turns on that. While she was on maternity leave in 2016 it appears that the Mother provided most of the care for both T.T.L. and M.A.L. She also did the grocery shopping and the cooking. The Father did provide some care for the girls when he was not working although the Mother says he helped little with child care after M.A.L. was born.

[28]         Both parties allege some abuse by the other at different times while they were together and both deny the alleged abuse.

[29]         The Father alleges that the Mother has called him names from time to time and slapped him. The Father described an occasion of being slapped while they were in Hawaii during the trip when he proposed to her. He gave a convoluted explanation of the Mother slapping him when she thought he was taking her out to go drinking. I find his description of the incident including her slapping of him to be lacking in credibility. The next day he proposed marriage and she accepted.

[30]         In November 2016, the Father and a friend went out to a pub one evening and when he arrived home late in the evening he says that she threw a remote control towards him. It did not hit him. He said that the Mother went to slap him and he grabbed her arm to prevent it. The Father says that she also slapped him on another occasion.

[31]         Apart from calling him some names from time to time there is no other evidence of abuse by the Mother and none when the children were present.

[32]         The Mother says that after a Christmas party in December 2014 they discussed his employment and the suggestion was made that she should have married a doctor. She says that he then punched her in the head resulting in a perforated eardrum. Within two days she attended the emergency ward of a hospital. A hospital report confirms that she visited the hospital to deal with her ear although she negated domestic violence when asked what happened by the doctor because she did not want to admit that there had been.

[33]         In May 2015 when she was getting ready for work, T.T.L. awoke and the Father blamed the Mother. She says that he then hit her in the stomach in front of T.T.L., who started to cry.

[34]         On August 4, 2016, the Mother says that while they were arguing about their finances, the Father again punched her in the head and re-perforated her ear-drum. She did not go to the hospital because she recognized the symptoms and knew how to deal with it.

[35]         The Father denies ever hitting the Mother. However, an exchange of text messages between them on August 5, 2016 suggests otherwise. At Tab 34 of Exhibit 29, the Mother says:

You perforated my ear drum again when you punched me in the head last night. Can’t take this abuse anymore, you keep calling me dumb and stupid, bad names on a daily basis…I’m just so stressed out because I’m always scared you might take whatever I do or say the wrong way.. I’ve told you to stop the abuse, I can’t imagine if the girls ever got treated the way I do when they grow up, it’s not normal. Domestic violence affects children more than you think.

The Father’s response is not a denial. He says,

Whatever you do the exact to me and I feel the same, that’s why things happen and you exaggerate and I’m so sick of you belittling me all the time.

The Mother responds,

I don’t belittle you all the time. Now I’ll probably be deaf in my right ear.

The Father responds:

Well, that’s fine don’t talk to me anymore and I’ll do the same!  Sick of this shit.

[36]         At one time the Father denied that these messages had been exchanged and suggested that they had been somehow manipulated. There is no evidence that those messages had been manipulated.

[37]         In November 2016, the Mother was helping the Father with his application for employment insurance when she says she asked him for information about his bank account. She says that he again struck her in the head and the girls were present. In the same month he had been drinking and she says that he struck her again and twisted her arm.

[38]         In a text message from the Mother to P.L. on November 11, 2016 she described how the Father had been drinking, punched her in the head and twisted her arm, bruising it as a result. The Mother said that she told P.L. about the scratches on her arm and the perforation of her ear-drum.

[39]         Text messages from P.L. to the Mother on November 26, 2016 indicate that she was sympathetic with the Mother when she says that the Father needs a “wake up call, he does not live in reality”.

[40]         She says further:

Yeah you need to blast him, he needs to step up and be a parent, he uses going psycho as away of getting everyone to back off. Tell him if he’s drunk to not to come home. What the fuck is wrong with him.

And:

He needs harsh, the only he wants to do is drink until he’s drunk and play xbox you and the girls come in after that

(Page 5 and 8 at Tab 40 of Exhibit 29)

[41]         I do not accept the Father’s denial of ever striking the Mother and find that he struck her in the head on the occasions that she has described.

[42]         The Mother alleges that the Father frequently verbally abused her calling her such things as a “nagging bitch”.

[43]         The Mother also says that the Father used foul language towards T.T.L., telling her to “fuck off” when she disturbed him while he was playing X-Box. Some evidence supports her allegation.

[44]         An audio/video recording of an incident in the parties’ home on May 30, 2015 was made on the Mother’s phone. T.T.L. was on the Mother’s lap and playing with her phone. A transcript of the audio is at Tab 95 of Volume 3 (Exhibit 30). The audio/video was played in court. The Mother says that the video was taken when T.T.L. was playing with her phone. While the Father says that he was somehow set up for this video, in my view that matters not. What matters is that the audio/video shows that he used extremely foul language in the presence of the Mother and T.T.L. The transcript of the recording indicates that the Father directed many obscenities towards the Mother and at one point said, “I don’t like you right now. I fucking hate you. Go fuck off and die. I don’t give a shit.”  The Mother says he had been drinking at the time and the audio played in court supports her view. Under cross-examination the Father agreed that during the recording he used the word “fuck” about 50 times. The Mother says that the language he used was typical for the Father.

[45]         A history of text messages between the Father and Mother also show his proclivity for the use of obscene language directed towards the mother.

[46]         The Father says that he generally does not use the word “bitch”. However, under cross-examination, the Father admitted that, during the trial, as the Mother walked by him in the courtroom, he called her a bitch. He subsequently apologized in court.

[47]         The Mother says that, on occasion, the Father would throw things at her such as a can of beans. She said that during breakfast one morning he threw his breakfast on the floor saying it was cold. She says that T.T.L. was present when he threw these things. While the Father denies doing that, I accept the Mother’s evidence as to those incidents.

[48]         On another occasion, the Mother says that the Father was very drunk and tore the cupboard door off below the microwave when he could not find the Advil.

[49]         She says that in May 2016 the father grabbed her by her arm so hard that he left fingernail marks on it.

[50]         In June 2016 the Mother says that the Father attempted to reverse their car into her while she was standing in the driveway. She says that T.T.L. was in the car at the time. He denies doing that.

[51]         The parties planned to travel to New Zealand on November 30, 2016 and return on January 18, 2017 so that the Mother could return to work. The Father was considering furthering his education. While the Mother said she had some reservations about the trip because of the Father’s escalating behaviour she said that she had no plans to move to New Zealand or to separate from the Father.

[52]         They travelled to New Zealand on November 30th as planned. During the flight to New Zealand, the Mother says that T.T.L. woke up crying and the Father slapped her on the face and her face hit the armrest. The Father denies that.

[53]         P.L. and J.M., the son of the Father’s sister, T.L., travelled to New Zealand on December 9, 2016. They stayed with the Mother and Father at the Mother’s parents’ home.

[54]         The families of both parties attended a wedding of a friend in New Zealand on December 17, 2016.

[55]         The parties differ in their account of what transpired shortly before the ceremony was to begin. T.T.L. and her cousin, L.N., were playing outside and fell together. T.T.L. injured her elbow and cried.

[56]         The Mother says that the Father became loud and aggressive and told her sister, N.N., who is L.N.’s mother, that it was L.N.’s fault. She said that her mother spoke to the Father and asked him to calm down.

[57]         The Father’s version of what happened is that when the girls fell down N.N. was critical of what T.T.L. had done and critical of him. He said in direct examination that S.M. told him not to embarrass her but seemed to deny that in cross-examination. He also said that S.M. told him that she never liked him and she did not want him to marry the Mother. It is not clear why S.M. reacted that way however it is consistent with the Mother’s version of what happened.

[58]         The Mother stayed for the wedding and reception. The Father left before the reception.

[59]         Matters between the parties came to a head on December 18, 2016.

[60]         The evidence of the parties and some of their family members as to what happened that day is difficult to reconcile.

[61]         On the morning of December 18th the Mother noticed that the children’s passports had been removed from her purse. There is conflicting evidence regarding what had become of the passports. When asked about the missing passports by the Mother’s father, A.M., the Father said that his mother had them. This is consistent with the evidence of P.L. who said that when she received a call from A.M. that morning he told her that she should bring back the passports. In fact, the Father had taken the passports from the Mother’s purse the day before. The Father said that he did so for “safety” but it appears he did not want A.M. to know that. When P.L. returned to S.M and A.M’s residence she told the Mother that the passports were at the Canadian Embassy. That was not true.

[62]         The Father says that A.M. was aggressive towards him when he asked about the passports. The Father then went outside and says that the Mother’s brother, N.M., approached him, grabbed his throat, pinned him against the wall and said that he was going to kill him. He said that while this was happening T.T.L. was screaming. He said that then A.M. took N.M. away from him. The Father says he then carried T.T.L. to the vehicle where his father, C.L., was waiting. He says that S.M. tried to stop them from leaving and take T.T.L. back but they drove away.

[63]         P.L. said that when she received a call from the Father that morning he said to her, “They’re beating me up.” When she arrived at S.M. and A.M.’s house she said that she heard N.M. say that he was going to kill the Father so she said “call the cops”.

[64]         The Mother says that none of the actions of her father or her brother alleged by the Father happened. She says that the Father fabricated that evidence.

[65]         N.M. testified that he saw the Father and T.T.L. outside but denies touching him or threatening him in any way. He says that his father did not have to restrain him.

[66]         A.M. says that he did not act aggressively towards the Father and could not understand why the Father made up a story about what had taken place that day.

[67]         After they drove away from S.M. and A.M’s residence the Father and P.L. went to a police station and reported their version of what happened that day alleging that the Father had been assaulted. They said that they did not want to press charges because that would require them to remain in New Zealand. They then found a motel and checked in.

[68]         Meanwhile, at S.M. and A.M’s house, the Mother’s brother-in-law, T.N., had called the police and reported that the Father and P.L. had taken T.T.L. from the Mother and they had T.T.L.’s passport. When the police attended and the Mother confirmed that T.T.L. had been taken away by the Father and he had her passport the police said they could not do anything without a court order.

[69]         The Mother contacted a lawyer and an Interpol alert was obtained to prevent the Father from removing T.T.L. from New Zealand.

[70]         The next day, December 19, 2016, the Father, T.T.L., and P.L. went to the Auckland airport planning to return to Vancouver. The immigration authorities informed the Father that the child, T.T.L., could not be removed from New Zealand. The Father, P.L., J.M and T.T.L. returned to their motel however, the Father did not contact the Mother about his and T.T.L.’s whereabouts. She did not hear from the Father or P.L. until she received a text from P.L. on December 21st informing her that she, the Father and T.T.L. were in Wellington, New Zealand which is about 640 kilometers from Auckland. That was not true.

[71]         On December 22, 2016, the Mother obtained ex parte orders from the Family Court in Auckland including an order that T.T.L. be returned to the Mother together with a warrant to remove her and return her to the Mother. The orders were made without prejudice to an application under the Hague Convention for the return of the children to British Columbia.

[72]         The Father denied receiving the orders from the New Zealand court on December 23, 2016 however in his affidavit in support of his Hague application he swears that his lawyer sent the orders to him on that day.

[73]         His only explanation for that inconsistency is that it was a mistake by his lawyer.

[74]         Contrary to the court orders, the Father’s lawyer informed the Mother’s lawyer that T.T.L. would be returned to her at 2:00 p.m. on Christmas Day. The Mother did not agree to that. On December 25th, the police located the Father and T.T.L. at a motel and executed the warrant. T.T.L. was returned to the Mother by the police around 11:00 a.m. that day.

[75]         The Father returned to Canada on January 2, 2017.

[76]         On February 20, 2017, a consent order was signed in the Family Court in Auckland providing that the two children would be returned to Canada. The Mother and the children returned on March 18, 2017.

[77]         The Mother did not return to live at the family home and stayed with a friend because she was afraid of the Father and did not want him to know where she and the children resided. The Mother currently resides with the children in a two bedroom apartment in the Lower Mainland.

[78]         At the end of March 2017, the Mother notified the Father that she wanted the family home to be sold. At that time, the Father and his mother were living there. The Father expressed some interest in buying the family home and suggested that they each obtain an appraisal. The Mother obtained an appraisal indicating a value of $650,000. The Father had an appraisal done in September indicating a value of $630,000. Negotiations were attempted by the parties but they did not reach an agreement.

[79]         The Mother obtained court approval to have the sole conduct of sale of the family home and it was sold on March 15, 2018 for $690,000.

[80]         The Father applied to this court for parenting time. A learned Master ordered that his parenting time be supervised by P.L. That order was overturned on appeal. Funt J. found that when they were in New Zealand, the Father and P.L. were made aware of the orders of the Auckland Family Court to return the child and the accompanying warrant by their lawyer but disregarded the order. As a result he concluded that P.L. was not suitable to act as a supervisor during the Father’s parenting time.

[81]         The Father’s parenting time is currently three day-time visits each week and it continues to be supervised by a professional supervisor. The Father resides in a townhouse with his mother. The rent is about $2,400 per month and is paid by her. He is not sure how long they will continue to live in the townhouse. It appears that P.L. has also been making the bulk of any child support payments required by the Father.

[82]         Although the Father lived and worked in New Zealand for a number of years and is a dual citizen, he testified that he is not willing to return to New Zealand because he is fearful of the treatment that he would receive from S.M. and A.M’s family.

[83]         He is of the view that his time with the children does not require professional supervision and, if supervision is necessary, he believes that it could be done by his mother.

[84]         The Father relies heavily on the financial support of P.L. The evidence indicates that she pays for many of his needs. This is likely to continue until the Father is able to increase his income and become more independent financially.

[85]         The Father said that there is a school near where he and his mother reside and he would like the girls to go to that school. His evidence is that his mother is now retired and could provide day care for the children when he is working. Evidence was lacking about other arrangements that would be made for the children if they remained in Vancouver. The evidence of the Father and P.L. was vague as to how long they would live together and it is unclear whether the Father would be able to remain in the rental unit which is paid for by his mother. His wish for a 4-bedroom townhouse, at least in the near term, would be entirely dependent upon his mother’s financial assistance.

[86]         The Mother wants to relocate to Auckland, New Zealand because of the strong family support that she and the children would receive there. Before December 18, 2016, apart from the Father, her only support in Vancouver came from P.L. She feels that the support she had received in Vancouver from the Father and P.L. was shattered as a result of the events that took place in New Zealand in December 2016. The Mother says that with her close family ties in New Zealand and their support she will be better able to provide for her daughters. The Mother also has an established network of friends in New Zealand with children who are the same age as T.T.L. and M.A.L.

[87]         S.M. travelled here from New Zealand on a leave of absence from her teaching position to help the Mother with child care and other needs. The Mother says that when her mother returns to New Zealand she will not be able to afford the cost of child care and rent in B.C. If the children are left with the Father she says they would remain in a toxic environment and face the prospect of his angry outbursts from time to time. If she could relocate to New Zealand with the children initially she would live in the upper floor of S.M. and A.M’s large home without having to pay rent. They live in a good neighbourhood with easy access to many schools and beaches. She has contacted her previous employer in the Auckland Health District and been told that she would be offered employment there again. Her salary would be similar to what she is currently earning in Vancouver. Day care would be readily available in Auckland and cost $1,300 per month compared with $2,500 to $3,000 per month in Vancouver where waitlists are 1 to 2 years long.

[88]         If she is permitted to take the children to New Zealand, the Mother said that she would facilitate contact by the Father with the children by sharing the cost of flights for him to travel to New Zealand. She would also bring the children to Vancouver to visit the Father on occasion. In New Zealand, the Mother says that she would trust some of the Father’s family there to act as supervisors for his parenting time there, if supervision continues to be necessary. She would also encourage increased Skype contact between the children and the Father. She expects that the Father would be able to spend at least four weeks every year with the children.

Current Parenting Arrangements

[89]         Since an order by Master Baker on April 25, 2015 the Father has had supervised parenting time with both children on Monday, Wednesday and Friday from 12:00 p.m. until 5:00 p.m.

[90]         P.L. was originally approved as a supervisor by Master Baker.

[91]         Master Baker’s order was appealed and Funt J. found that P.L. had disregarded the orders of the New Zealand Family Court requiring the return of T.T.L. to the Mother. For that reason he found that P.L. was not an appropriate person to serve as a supervisor of her son’s parenting time. Funt J. also said at para. 27, 28 and 29:

27. Although not necessary for my conclusion, the removal of T.T.L. from her mother (and M.A.L.) by the respondent father and his mother for almost a week did not serve to protect T.T.L.’s psychological and emotional safety to the greatest extent possible.

28. Nor did the respondent father’s and his mother’s disregard of judicial authority which led the New Zealand police to take T.T.L. pursuant to the supporting warrant serve to protect T.T.L.’s psychological and emotional safety to the greatest extent possible.

29. With respect to the New Zealand police’s execution of the supporting warrant, I wish to emphasize that I wish nothing that I have said to be viewed as critical of them. There is no evidence to support that the police did not act in the most professional manner possible in a difficult and emotional family situation involving a three-year old. Unfortunately, at best, T.T.L. may have been left with a difficult and imperspicuous life-long memory, which can only be attributed to the respondent father and his mother disregarding judicial authority.

[92]         Based on the evidence in these proceedings, I share the views of Funt J.

Supervised Parenting

[93]         The Father’s parenting time with the children has been professionally supervised since the order of Funt J. With the exception of one that will be discussed below, the reports of the supervisors have generally been favourable and indicate that the children have a positive relationship with the Father.

[94]         I allowed the trial to be reopened to hear evidence regarding the reasons for the discontinuance of supervisory services by Ms. Jamie Simpson. She terminated her services following her supervision of the Father’s visit with the children on May 28, 2018.

[95]         Ms. Simpson has been a professional supervisor for 14 years and specializes in child protection issues.

[96]         She began supervising visits on March 12, 2018 and supervised about 15 visits before discontinuing her services. It seems that the visits before May 28th were uneventful.

[97]         On May 28, 2018, she picked the girls up and arrived at the Father’s townhouse. He came to her car and collected the girls. Ms. Simpson told the Father that M.A.L. might be constipated so she should avoid sugar and drink lots of water.

[98]         Ms. Simpson said that the Father became quite agitated, raised his voice and asked her if the Mother had told her that M.A.L. should not consume sugar. Ms. Simpson said that it was her own advice. She said that the Father had M.A.L. by the hand and T.T.L. was walking in front of him while the Father was yelling at her about the Mother telling her to suggest that M.A.L. not have sugar. She said that she explained that it was not the Mother but her advice but said that the Father did not appear to be listening to her.

[99]         The Father and the girls continued up to the second and then the third floor of the townhouse where they played with the Father in the presence of Ms. Simpson.

[100]     Ms. Simpson mentioned that the Mother’s mother had been present when she picked up the girls. She said the Father spoke loudly and became very agitated. He said that she was not supposed to be here and thought she was in New Zealand. He said that he would call his lawyer and deal with this in court. M.A.L. was present and Ms. Simpson said that they should not talk about court in the presence of the children. The Father then said that if he was going to have problems with Ms. Simpson he would have to find another supervisor.

[101]     Under cross-examination, the Father said that he did not remember an email that the Mother’s counsel had sent to his counsel on April 2, 2018 informing him that S.M. was going to extend her stay in B.C. temporarily.

[102]     The visit ended early because M.A.L. was not feeling well. When the Father put the children in the car, Ms. Simpson said that he apologized to her for how he had acted.

[103]     Contrary to the terms of Ms. Simpson’s engagement, the Father had tape recorded some of the discussion between them that day. Ms. Simpson had listened to the recording and said that it did not capture the two altercations that occurred between her and the Father. The Father’s stated reason for taping some of the visit is only that he thought “something was up”.

[104]     Ms. Simpson had not encountered this behaviour by the Father on previous visits. Her reason for terminating her services after this visit was that during the altercations with the Father he did not appear to be listening to her and she cannot do her job if she cannot communicate with the parent. She said that her comment about M.A.L. not having sugar should not have caused the aggressive response from the Father. She denied quitting because the Father wanted to reduce the number of supervised visits.

[105]     While the Father denied reacting angrily to Ms. Simpson on the two occasions that she described and denied saying that he would contact his lawyer, his explanation was somewhat convoluted and difficult to understand.

[106]     It is telling that at the end of his recording the Father says, “…sorry about…”  The Father says he was sorry about cutting the visit short but that makes little sense. I find that he was apologizing for his behaviour towards Ms. Simpson as she has described.

[107]     Under cross-examination, the Father agreed that there were periods of time missing from the recording. It appears that he only started the recording after the altercations took place or did not record them at all.

[108]     I accept the evidence of Ms. Simpson as to the altercations between her and the Father on May 28, 2018 and her reasons for terminating her services. She is an experienced supervisor and had no reason to be untruthful in recounting what took place. I reject the Father’s denial of those altercations and find that it is an example of where he is prepared to be untruthful so as to put his behaviour in a more favourable light.

Section 211 Report

[109]     Dr. Peggy Rae Koopman, R. Psych. B.C. and SK., Lic. Psych. Wash. State, with the consent of both parties, prepared a report under s. 211 of the Family Law Act. It is Exhibit 26 in these proceedings.

[110]     Dr. Koopman concluded that the children should remain in Canada as their primary residence with a specific agreement regarding frequent trips to New Zealand to visit family.

[111]     At page 55 of her report she states:

The writer is of the clinical opinion that the children should remain in Canada as their primary residence with specific agreement outlined regarding frequent trips to New Zealand to visit family. In the clinical opinion of the writer the children are securely attached to both parents who are loving and capable of parenting. The writer is of the opinion that separating the children from their father is unnecessary and would be detrimental to their overall emotional development. However, this should only take place if [D.L.] will work to create a stable emotional environment for his children and where he removes all negative interactions with [N.L.] thus reducing her not unfounded concern regarding his impulsivity.

In the clinical opinion of the writer the primary care of the girls should be with their mother [N.L.] with supervised access with their father by their grandmother, [P.L.]. The Ministry of Child and Family Development should become involved with this family such that they can monitor the interactions between [D.L.] and [N.L.] and [D.L.] and his children. A request that a file be opened for this family should be made at the office of MCFD closest to the family. The writer is making a specific recommendation that a social worker be provided to this family until such time as she/he believes there is no longer a need. This person will then be in the best position to recommend when unsupervised visits can reasonably take place and when an increase in visitation times including overnights can begin.

[112]     Dr. Koopman also opines, at page 53:

It is the writer’s clinical opinion that [D.L.] is a person who suffers from deep insecurities that surface when he feels threatened or disrespected. The situations to others may seem benign but [D.L.] is easily aroused to feeling that he must defend himself even when no threats are present. The writer is recommending that this set of fragile personality traits are longstanding and that the best means for [D.L.] to lead a calmer more serene life is to work with a psychotherapist who will assist him to conquer his inner fears of inadequacy and thus become all the time, the upbeat and charming person he is most of the time.

[113]     Dr. Koopman says while there have been arguments, often heightened by the Father, which were experienced by the children, she says that there is no other evidence that he has been verbally or physically aggressive toward either child since separation. I note that since separation, the Father has only had supervised visits with the children.

[114]     The Father has done little to address the concerns expressed about him by Dr. Koopman. He has only taken a one-day anger management session in a group and has not undertaken any psychotherapy as recommended by Dr. Koopman to treat what she describes as “long standing issues”.

The Legal Framework

[115]     The statute law applicable in determining the custody of a child and parenting arrangements is found in s. 37 of the Family Law Act, [SBC 2011] c. 25 and s. 16 of the Divorce Act, R.S.C., 1985 c. 3 (2nd Supp.). In each statute the primary concern is the best interests of the children.

[116]     In this case the parties agree that this court should apply the principles of the Divorce Act.

[117]     The provisions of the Divorce Act that are particularly relevant in a mobility case are as follows:

16(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.

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

(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.

[118]     The starting point in considering the common law in a mobility case is Gordon v. Goertz, 1996 2 SCR 27. In particular, Gordon directs that the factors to be considered include the following:

1.     The existing custody arrangement and relationship between the child and the custodial parent.

2.     The existing access arrangements and the relationship between the child and the access parent.

3.     The desirability of maximizing contact between the child and both parents.

4.     The views of the child.

5.     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.

6.     The disruption to the child of a change in custody.

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

[119]     Gordon also refers to the maximum contact principle in the Divorce Act and says that while it is mandatory, it is not absolute. A move will not necessarily be denied solely on the basis that it will have the effect of reducing a parent’s access or involvement with the children.

[120]     In Nunweiler v. Nunweiler, 2000 BCCA 300, the Court of Appeal said that the approach of the Supreme Court in Gordon is generally applicable to an initial application for custody and relocation such as the case at bar and further, at para. 28:

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

[121]     In Falvai v. Falvai, 2008 BCCA 503, as noted by the Court of Appeal in K.W. v. L.H., 2018 BCCA 204, the Court held that an initial custody application involving a mobility issue required a “blended” analysis that includes a consideration of the mobility issue as part of – not separate from - the determination of the custody issue. At para. 108 of K.W. the Court quoted from Falvai at para. 25 as follows:

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

[122]     This approach was recently approved again by the Court of Appeal in King v. Borserio, 2018 BCCA 308 where Griffin J.A. stated at paras. 63 and 64:

[63] I find no error in the judge’s approach to the law. The analytical approach set out in the above-cited mobility case law under the Divorce Act is designed to respect adults’ life circumstances and desires to live in a community that suits their needs, not to penalize parents for wanting to live in different locations, while at the same time appreciating the impact on a child of having parents who live in geographically distant communities. This analytical approach seeks to avoid any presumptions about what is in the child’s best interests, including unfairly giving undue weight to: the status quo; the possibility of the parent wishing to move agreeing not to do so if denied the opportunity to move with the child; or, the possibility of the other parent agreeing to move to the new location if the court were to rule that the moving parent can relocate with the child. At the same time, the motive to move and a parent’s willingness to stay or to relocate can factor into the analysis where it is relevant to meeting the needs of the child, or where there are improper motives.

[64] I agree with the judge that the blended analytical approach, considering custody and mobility (or residence) as a whole – but without giving undue weight to where the child was living or whether a parent would move – is appropriate to circumstances such as existed in this case. The choice of the existing location of the children cannot be the default position.(S.S.L. at para. 25)

[123]     In S.S.L. v. J.W.W., 2010 BCCA 55, Huddart J.A. stated at para. 22:

However, as the plethora of judgments that have applied Gordon demonstrate, the factors listed at para. 49 in the judgment of McLachlin J. (as she then was) provide insufficient guidance for two good parents, their counsel, and the trial court as they face the agonizing decision required in two circumstances: (1) a pre-school age child who has been in the primary care of one parent (usually the mother) where age-appropriate access is unworkable if one parent moves away (Karpodinis v. Kantas, 2006 BCCA 272, leave to appeal refused [2006] SCC No. 318; Hanna v. Hanna, 2002 BCCA 702), and (2) a joint parenting situation where one or both parents’ needs (economic, educational or personal) are seen as requiring a change.

[124]     If I were to find the circumstances in this case to be within the scenarios described by Huddart J.A., the approach suggested is that this Court consider four possibilities, namely:

1.     Primary residence with the Mother in Auckland,

2.     Primary residence with the Father in Vancouver

3.     Shared parenting in Vancouver, and

4.     Shared parenting in New Zealand

(S.S.L. at para. 24 )

[125]     Although comments regarding family violence in K.W., referring to K.R. v. J.D., 2017 BCSC 182, were in respect of that term in the Family Law Act, in my view they have some application here in determining whether a party is a good parent and whether the children are safe in the presence of that party. In K.W. at para. 121 the Court of Appeal stated:

Family violence includes demeaning remarks made by one parent to another in the presence of their child.

Analysis

[126]     In considering custody and mobility as a whole using a blended approach, I will begin by reviewing the evidence in relation to the applicable factors in Gordon.

[127]     This analysis will include a consideration of the past conduct of the parties, particularly the Father. In my view, that conduct is very relevant to their ability to act as a parent.

[128]     Currently, the Mother and Father have joint custody of the children. The existing parenting arrangements involve the primary care of the children by the Mother with supervised parenting by the Father on three afternoons each week. Since December 18, 2016, the Father has had limited parenting time and the Mother has been the primary caregiver. Nevertheless, the relationship between the children and both parents appears to be positive.

[129]     Whether the children remain in Vancouver or move to Auckland, as long as the Father lives in Vancouver and the Mother lives in Auckland, the maximum contact principle will be eroded because of the sheer distance between those cities, the cost of travel and other challenges facing a parent who wishes to travel to the other city. However, as McLaughlin J. said in Gordon, a move will not necessarily be denied solely because it will have the effect of reducing a parent’s access to a child.

[130]     In the circumstances of this case it is my view that the maximum contact principle should be subordinated to the over all consideration of the best interests of the children.

[131]     With regard to the Mother’s reasons for moving, I consider those reasons to be relevant firstly in measuring the respect that should be afforded to her decision to live and work where she chooses and, secondly, to her ability to meet the needs of the children.

[132]     As to the Mother’s reasons, I share the views of Balance J. expressed in McArthur v. Brown, 2008 BCSC 1061 at para. 143:

In reality, most desired moves have little direct connection with a child’s interests or needs. For example, few moves are ever proposed in order to enable the child to attend a special school, take advantage of athletics or arts or receive medical attention in the new location. Almost invariably, the move is desired by the applicant parent in order to further his or her interests or needs such as a career transfer of advancement, educational opportunity, employment relocation of a new partner, enhanced psychological well-being or to pursue a new relationship. It would seem from surveying a sampling of the post-Gordon case authorities, that the trial courts do on occasion consider a parent’s reason for a proposed move even in plainly unexceptional circumstances. I would suggest that those cases do not represent an outright rejection of the explicit direction given in Gordon, so much as they demonstrate the practical difficulty in disregarding the reasons for the move from the overall assessment of what may be in a child’s best interests, and reveal how often a parent’s reasons for the relocation are bound up in that assessment and are therefore relevant.

[133]     I consider the Mother’s reasons for moving, from an economic or financial standpoint, to be reasonable. It appears that when her mother returns to New Zealand to join her family, the Mother will struggle to provide care for the children and maintain her current employment. She will not be able to rely on financial support from the Father nor assistance with parenting from P.L. I accept her evidence that, in light of the events in New Zealand on December 18, 2016, she cannot presently trust P.L. as a caregiver for the children.

[134]     It is also important to the Mother that she not raise the children in what she describes as a toxic environment if they remained where the Father lives. The evidence satisfies me that if the children were in the unsupervised care of the Father, they would be exposed to what Dr. Koopman describes as his “fragile personality” and his “…impulsivity and verbal and physical aggression…”. While Dr. Koopman recommends that the children remain in Canada she qualifies this an important way. She says that the Father must work to create a stable emotional environment for the children where he removes all negative interactions with the Mother. To this end she recommends that he attend an anger management program and work with a psychotherapist. He has only participated in one day of anger management and not sought any assistance from a psychotherapist. His negative interaction with the Mother continues as evidenced by him calling her a “bitch” in the courtroom during the trial.

[135]     In my view the Mother has experienced violent behaviour directed at her in the past by the Father, including two occasions when he struck her in the head and on other occasions involving demeaning remarks and obscenities directed at her verbally and in text messages and, more importantly, on some occasions, in the presence of T.T.L. as best illustrated by the audio/video recording on May 30, 2015. The Father’s derogatory and demeaning comments directed to the Mother in the presence of T.T.L. clearly amount to family violence. (K.W. at para. 122)

[136]     The evidence supports the Mother’s concern about leaving the children in the care of the father and is consistent with the concerns expressed by Dr. Koopman. It is notable that Dr. Koopman recommended the involvement of the Ministry of Child and Family Development to monitor the interaction between the Father and Mother and the Father and the children. Furthermore, she specifically recommended that a social worker be provided to the family to determine when unsupervised visits by the Father could take place. Clearly, Dr. Koopman was concerned about the stability and safety of the children while in the care of the Father. The Mother echoes those concerns.

[137]     While the Father may take steps to change his behaviour in the future, he has done little to do so since December 2016.

[138]     Dr. Koopman also acknowledges that if the Mother cannot maintain a home for the children financially and/or if the emotional toll for her is such that she will have an undue struggle, these issues will ultimately have a negative impact on the children in her care.

[139]     As to the custody of the children, if the Mother is permitted to relocate to New Zealand then joint custody would appear to be impractical and the Mother should have sole custody. The court reached that conclusion in Nunweiler after determining that the mother should be permitted to relocate with the child because of the distance between the parties’ homes and awarded sole custody to the mother.

[140]     As both children are pre-school age and both are currently in the primary care of the Mother, it is my view that no disruption should result if they are relocated to a new community in New Zealand particularly with the continuing support of S.M.

[141]     The Mother believes, and I accept, that the children’s emotional and financial support by her and her family in New Zealand would be better than in B.C.

[142]     In the Mother’s view the support she used to have from the Father’s mother in Canada has been lost as a result of what transpired in December 2016. She says she no longer trusts either the Father or P.L. as a result of the steps they took then to remove T.T.L. and keep her away from her.

[143]     I accept the Mother’s need for emotional support and the likelihood of a more emotionally stable life for the children to be valid reasons for her to relocate with them to New Zealand.

[144]     The removal of children from their contact with a grandmother has been considered by this court and while the children in this case have a loving relationship with P.L., the evidence indicates that at this young age they have the prospect of forming close ties with their maternal grandparents in New Zealand. (LeMasurier v. Parsons, 2017 BCSC 1536) I say this in light of the evidence given in the trial by A.M. and S.M. who appear to be loving grandparents.

[145]     I will turn now to consider how the events of December 2016 are relevant to the best interests of the children. The respondent submits that the court need not make findings about what occurred on that date however, in my view, those events are relevant to parenting issues. A determination of what happened is relevant to the overall credibility of the parties and witnesses, the assessment of the risks to the children and Mother if relocation is not permitted, an assessment of family violence and whether or not the children are placed in the middle of a conflict.

[146]     I will deal first with the events at the wedding on December 17, 2016 and then at S.M. and A.M’s house on December 18th.

[147]     On December 17th T.T.L. and her cousin L.N. fell while they were playing and T.T.L. injured her elbow. It was an accident but the Mother said that the Father began yelling and swearing at L.N. and her mother, N.N., and yelled at her to “fuck off and stand with your family”. S.M. asked him to stop and suggested they talk about it back at home.

[148]     The Father says it was S.M. who began the conflict with him after he told N.N. to control her daughter’s play and that S.M. told him that the Mother was divorcing him and staying in New Zealand with the girls.

[149]     In my view it makes no sense that S.M. would suddenly initiate a conflict at the wedding and create a scene by telling the Father that the Mother was divorcing him and staying in New Zealand with the children. It does not seem credible that S.M. would make such comments effectively out of the blue and just days before her sister was visiting from South Africa to meet the Father and the girls.

[150]     The evidence of the Father’s behaviour, as described by the Mother, is consistent with his frequent use of foul language. S.M.’s response which was to tell the Father to calm down was rational and believable in the circumstances.

[151]     In her interview with Dr. Koopman, P.L. said that the Father had been “overly verbally aggressive” to L.N. While she denied saying that in cross-examination, I accept Dr. Koopman’s report regarding what P.L. told her.

[152]     The following text messages from the Father to the Mother in the evening of December 17th support the evidence of the Mother, her sister and her mother about the events at the wedding:

Please don’t be mean and tell your parents the things I said please. I’m sorry and love you.

Please don’t blow this out of proportion what happened today. What’s going on??

We should have at least talked it out first!  Please don’t say anymore to them please.

I’m scared I love you and the kids so much!  You know I love you. Watch me …I’ll be loving. I will go to counselling.

[153]     The groom at the wedding on December 17th, D.D., testified. He said that he observed an incident at the wedding where the Father was yelling and swearing that it was N.N.’s child who had done something. He is a close friend of N.M. and he also testified that he had never seen N.M. be violent towards anyone. He described himself and N.M. as “pacifist people”.

[154]     I reject the Father’s version of what happened at the wedding on December 17th and accept the evidence of the Mother and S.M. regarding the events of that day.

[155]     With regard to the events of December 18, 2016 it appears likely from the evidence that the Father removed the children’s passports from the family’s travel bag on December 17th although he said at his examination for discovery that he removed them on the morning of December 18th.

[156]     The Father and P.L. communicated by text messages on the morning of December 18th and they both said that the messages should be deleted. (Tab 48 of Exhibit 29) It is apparent from the messages that the Father wanted to leave New Zealand and his evidence is that he would not leave without the children. P.L. messaged the Father that she was “taking the passes” with her. She and the Father testified that that referred to passes for some sky jumping adventure but that is completely inconsistent with the string of messages where a divorce and leaving New Zealand are mentioned.

[157]     It is reasonable to infer that the “passes” referred to the children’s passports that P.L. said she would take with her.

[158]     In this string of messages, P.L. also told the Father to “pack up your stuff”. His mother then says to the Father, “Play the game with them let them think they have the upper hand…going to be a rude surprise”.

[159]     These messages take place before the altercation at S.M. and A.M.’s residence described by the Father.

[160]     I find the evidence of A.M., S.M. and N.M. as to how events unfolded on December 18, 2016 to be believable. Their evidence harmonized with each other and was consistent and logical in relation to the events that occurred that day. I accept their description of what happened including that the Father was using abusive language towards them; that N.M. did not assault or threaten the Father in any way; that C.L. arrived in a car and P.L. came into the house to get her suitcase and then, the Father, P.L. and T.T.L. got into the car and drove away.

[161]     The evidence is that when P.L. arrived at S.M. and A.M’s house she shouted “call the police”. It appears that this is because she had been told earlier by the Father that N.M. had threatened him. I note however that the first contact with the police was by T.N., the spouse of the Mother’s sister, N.N., at her request. N.N. is N.M.’s sister and it is unlikely that she would have asked her husband to call the police if N.M. had in fact assaulted the Father as alleged by him.

[162]     As the Father is the only person who says that he was assaulted it is important to consider his credibility not only in relation to the events of December 18, 2016 but in the trial generally.

[163]     Oft cited comments on the assessment of credibility are found in Bradshaw v. Stenner, 2010 BCSC 1398. At para. 186 Dillon J. writes:

Credibility involves an assessment of the trustworthiness of a witness’ testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides (case cited). The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness’ evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness’ testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally. (cases cited)  Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be existence at the time. (Case authority)

[164]     Applying this approach the Father comes up short for a number of reasons. While his counsel argued that the Father did not have a motive to lie about the events of December 18th in my view his version of events would help explain why he had left S.M. and A.M’s residence with T.T.L. when, in my view, he and his mother had planned their departure before the alleged altercation occurred.

[165]     In my view, the Father often modified his recollection of events in a way that supported his position in this litigation. For example, his account of what happened at the wedding on December 17th, that I have rejected, was an attempt to put himself in a favourable light when the witnesses who testified attested to his use of foul language directed at one of the children’s mother. Similarly, in recounting the events that occurred with the supervisor, Ms. Simpson, on May 28, 2018, I find the Father’s denial of the altercations with her to be another attempt to modify his recollection of what occurred to bolster his position in this litigation.

[166]     Another example of how the Father is prepared to deceive the court is his denial that he was aware of the orders of the New Zealand court on December 23, 2016 when, in his sworn affidavit in support of his Hague application, he said that his lawyer sent the orders to him on that day.

[167]     The Father’s demeanour and staccato speaking style on the witness stand when he would often not complete a sentence or modify his answer before finishing it, particularly in cross-examination, suggested that he was shaping his answers to put himself in the most positive light.

[168]     In cross-examination, the Father denied that he wanted to leave New Zealand before the events of December 17, 2016. However, in text messages between him and the Mother on December 14, 2016 (Tab 36 of Exhibit 29) the Father says that he is “fucking bored” and wanted to “get the fuck out of here” and “the fun is gone”.

[169]     By contrast I found that N.M.’s evidence to be consistent internally with what other witnesses described. She testified in a calm, clear and straightforward manner and she did not appear to exaggerate her answers in any way. She was a very credible witness.

[170]     I reject the Father’s denials of the verbal and physical abuse of the Mother and accept the Mother’s account of the abuse she suffered in its entirety including the abuse that occurred in the presence of the children.

[171]     P.L. also tended to modify her recollection of events or communications to align it with the Father’s version of events. When cross-examined about the text messages between her and the Mother in November 2016 she said that her comment about the Father that she would look after the girls “so he can go and drink and party somewhere else” was a joke. When asked what she meant by her comment in reference to the Father that “…he needs to step up and be a parent, he uses going psycho as a way of getting everyone to back off”, she became quite defensive and said only that “he will get mad”. When she was asked about saying, “…he needs to stop drinking completely and no more xbox, do normal stuff like fix things, take your kids out…not waste time playing a game” and “…the only he wants to do is drink until he’s drunk and play xbox you and the girls come in after that”, she says that she was just saying what the Mother had told her. I find her explanation of those text messages not to be credible. In my view, she was expressing her negative views about her son’s behaviour and not simply repeating what the Mother had told her.

[172]     Having considered the evidence surrounding the events of December 18th, it is my view that the Father and P.L. probably planned to leave New Zealand the day before the events at S.M. and A.M.’s house unfolded, that no assault occurred and that the allegation by the Father of an assault, including the report to the police was all part of a ruse to cover up their plan to return to Canada with T.T.L. and, possibly, M.A.L., that had been hatched before the events at S.M. and A.M’s house.

[173]     In my view the lengths to which the Father and P.L. have gone to support the Father’s position that the children should remain in Vancouver suggest that there is little hope that co-parenting would be successful if the children were to remain in Vancouver.

[174]     In this case it does not appear that the analysis suggested by Huddart J. in S.S.L. in cases of joint parenting is appropriate. Two pre-school age children have been in the primary care of the Mother for almost two years, and in M.A.L.’s case since her birth. Also, because of the continuing supervision of the Father’s parenting he has not yet been established clearly to be a “good parent” as referred to in S.S.L. (see para. 22 of S.S.L.). A consideration of shared parenting in either jurisdiction at this point in time would not seem to be appropriate. However, a consideration of primary residence with the Father in Vancouver and primary residence with the Mother in Auckland is useful.

[175]     If the children are not allowed to move to New Zealand then in spite of the Mother’s expressed desire to relocate it would be expected that she would remain in the Lower Mainland as their primary care giver as long as supervised visits continue to be necessary and perhaps beyond. As long as supervision is required, primary residence of the children with the Father in Vancouver would not be appropriate.

[176]     If supervision were to become unnecessary some form of joint parenting might be appropriate but the court can only speculate as when or if supervision will not be required in the future.

[177]     The need for supervision does not just rest on Funt J’s findings regarding the failure of the Father and grandmother to obey orders of the New Zealand court. More importantly, I am concerned about the evidence of the Father’s behaviour in New Zealand and more recently in Vancouver while in the presence of a supervisor. While I accept that he loves both girls, I also accept the opinion of Dr. Koopman that the Father has a history of impulsivity and verbal and physical aggression with fragile personality traits that may lead him to defend himself when no threats are present. His behaviour at the wedding in New Zealand on December 17, 2016 and his behaviour in the altercations described by Ms. Simpson on May 28, 2018 fit within that description by Dr. Koopman.

[178]     In my view, until the Father takes the steps recommended by Dr. Koopman, including more than one anger management session, and counselling with a psychotherapist, so that, in the words of Dr. Koopman, “…he can learn more about handling difficult emotions that will assist him in the future an ensure that he does not bring them to his children at times of stress” and “…create a stable emotional environment for his children where he removes all negative interactions with (the Mother), supervision will be necessary. Dr. Koopman’s view that the Ministry of Children and Family Development should be involved and that a social worker monitor the situation to determine when there is no longer a need for supervision confirms the need for supervision to continue.

[179]     Since January 5, 2018, the Father has only taken one group session in anger management. Based on his behaviour with Ms. Simpson and his conduct in court when he called the Mother a bitch it appears that he has a long way to go.

[180]     I also do not consider P.L. to be an appropriate supervisor. In addition to the findings of Funt J. her evidence during the trial shows that she will support the Father’s position whether or not it is in the best interests of the children. In my view she could not be expected to report reliably if the Father acted inappropriately in caring for the children.

[181]     If the children were to move to New Zealand, the Mother would be the primary caregiver while they reside in S.M. and A.M.’s residence. I accept the evidence of the Mother that her family in Auckland would provide the support she requires, both emotionally and financially, to provide for the needs of the children. That support is not available to her in Vancouver and, as Dr. Koopman acknowledged, if the Mother cannot maintain a home for the children financially or if the emotional toll for her is such that she will have an undue struggle, those issues will have a negative impact on the children. In my view, the Mother will not face that struggle in New Zealand.

[182]     While the Father expresses concerns for his safety if he returns to New Zealand to visit the children, in light of my findings regarding the events of December 18, 2016, I do not consider his concerns to be well founded. Parenting arrangements may be structured in New Zealand so that the Father has minimum contact with the Mother and her family.

[183]     If the children were to move to New Zealand, I consider the Mother’s expressed desire to assist with the Father’s travel to New Zealand or the children’s travel to Vancouver to be genuine.

[184]     I have considered the s. 211 report by Dr. Koopman and, in particular, her recommendation that the children remain in the Lower Mainland to continue their connection with the Father.

[185]     As noted, Dr. Koopman’s opinion that the children not be separated from the Father came with two qualifications. Firstly, the Father was to work to create a stable emotional environment for the children and, secondly, he was to remove all negative interactions with the Mother so as to reduce her concern regarding his impulsivity. In my view, he has done neither. There is no evidence that he has worked to create a stable emotional environment for the children. Indeed, his behaviour with the supervisor, Ms. Simpson, while the children were present appears to be just what was of concern to Dr. Koopman. In addition, the Father clearly has not yet ceased his negative interactions with the Mother as evidenced by his behaviour in the courtroom when he called her a bitch.

[186]     While that would be a sufficient basis not to accept Dr. Koopman’s recommendation that the children not be separated from the Father, there are other problems with Dr. Koopman’s opinions.

[187]     In my view, Dr. Koopman was overly focused on explaining the Father’s conduct and how it could be dealt with rather than on the impact of his behaviour on the children and the risks to them. She spent little time analysing the Mother’s circumstances and how the needs of the children were affected. Dr. Koopman dismissed concerns about the Mother’s circumstances in Vancouver by saying that she was a “lovely person” who will be able to form a support network and that she could avail herself of the support offered by P.L. if she could put their past behind them. As I have said, the Mother’s concerns about the trustworthiness of P.L. appear to be well-founded.

[188]     There was little analysis in the s. 211 report of the benefits to the children of moving to New Zealand. The children’s ties to the Mother’s family appeared to be discounted while emphasis was placed on the role of P.L. in the children’s lives.

[189]     Dr. Koopman appears to be inconsistent in concluding that the Father is a capable parent who can protect and provide for the children on a daily basis yet recommends that the Ministry of Children and Family Development should become involved to monitor the interactions between the Father and the Mother and the Father and children. She also recommends that a social worker be assigned to the family to determine when unsupervised visits could take place. Clearly, the Father is not currently a parent who should be left alone to care for the children. Dr. Koopman goes as far as suggesting that if a social worker were to find any evidence of verbal or physical aggression towards the girls by the Father his access should be immediately terminated. This comment indicates a significant concern by Dr. Koopman about the Father’s parenting.

[190]     While I found much of Dr. Koopman’s s. 211 report to be helpful, in the end result I do not accept her recommendation that the children remain in British Columbia.

[191]     Having considered the evidence and circumstances of this case in the round I have concluded that it is in the best interests of the children not to be separated from the Mother and to relocate with her to New Zealand. A move to New Zealand is clearly in the Mother’s best interest and it will provide her and the children with emotional support and stability. I also find that the move to New Zealand is in the best interest of the children as they will benefit from the increased stability and personal happiness of the Mother rather than remaining in the unstable and uncertain environment in which she is currently caring for the children.

Orders

1.     T.T.L. and M.A.L. shall reside primarily with the claimant and the claimant is permitted to forthwith relocate with both children to New Zealand.

2.     The claimant shall have sole custody of the children.

3.     The parties shall remain joint guardians of the children.

4.     The parties shall exercise parental responsibilities with respect to the children on the following terms:

a.     while the children are in the care of a guardian, that guardian may have day-to-day care, control and supervision of the children and make day-to-day decisions affecting the children;

b.     in the event of the death of a guardian, the surviving guardian will be the only guardian of T.T.L. and M.A.L.;

c.     each guardian shall have the obligation to advise the other guardian of any matters of a significant nature affecting T.T.L. or M.A.L.;

d.     in the event that a guardian takes either or both of the children to a health care provider, that party shall inform the other party of that by email or other written electronic communication as soon as practicable, and provide the name of the health care provider, the reason why the child was taken to see a health care provider and the outcome of the attendance at the health care provider;

e.     the guardians shall have the obligation to communicate with the other regarding significant decisions affecting T.T.L. or M.A.L., including but not limited to, significant decisions about their health (except emergency decisions), the children’s schools and changes to their schools, decisions respecting their cultural, linguistic, religious and spiritual upbringing and heritage, and the obligation to try to reach agreement on those decisions;

f.       in the event that the guardians cannot reach agreement on a significant decision despite their best efforts, the claimant shall be entitled to make that decision;

g.     each guardian shall have the right to obtain information concerning T.T.L. or M.A.L. directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third party care givers;

h.     The claimant shall have the following parental responsibilities:

i.                 making decisions respecting where the children will reside;

ii.                making decisions respecting with whom the children will live and associate;

iii.              making decisions respecting the children’s education and participation in extracurricular activities, including the nature, extent and location thereof;

iv.              giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the children. Without limiting the generality of the foregoing, the claimant may select the children’s physician, dentist, and other health care professionals, and she will provide their names and contact information to the respondent;

v.               applying for a passport, licence, permit, benefit, privilege or other thing for the child, including that the claimant may apply for and renew the children’s Canadian passports, without the need for the signature of the respondent and apply for New Zealand passports for them without the need for the signature of the respondent;

vi.              giving, refusing or withdrawing consent for the children, if consent is required;

vii.            receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;

viii.           subject to any applicable legislation,

(i)              starting, defending, compromising or settling any proceeding relating to the children, and

(ii)             identifying, advancing and protecting the children’s legal and financial interests;

i. while the children are in the care of the respondent, the respondent may, subject to the terms of this order, give, refuse or withdraw consent to medical, dental and other health-related treatments for them.

5.     Neither party will be entitled to change the residence of the children from New Zealand without the written consent of the other party or an order of the court.

6.     The respondent shall have the children in his care in New Zealand as follows:

a.     each year during two of the following school term vacations:

                           i.          two weeks of the first term vacation (generally in April);

                          ii.          two weeks of the second term vacation (generally in July);

                        iii.          two weeks of the third term vacation (generally in October);

                        iv.          six to seven weeks of the summer vacation (generally in December and January).

b.     The respondent will be entitled to select the school term vacations in which he has the children in his care, subject to :

i.                 the claimant will have the children in her care for the period of December 24 to December 26, inclusive, in alternate years, including if the respondent elects to have the children in his care during their school summer break that year;

ii.                the claimant shall be entitled to have the children in her care for two weeks, consecutive or not consecutive at her choice, during the summer vacation;

iii.              the respondent shall inform the claimant of his selected term vacations no later than three months in advance of the selected term vacation.

c.     At such other times as the parties agree in writing or as ordered by the court.

d.     Until further order of this court or a written agreement between the parties, the respondent’s access with the children will be in New Zealand, except that in every other year, commencing in 2019, one of the access periods may be in British Columbia as follows:

I.                 for up to three weeks if access is during the children’s school summer vacation;

II.               the children will return to New Zealand at least four days before the commencement of school;

III.             the claimant shall select who will accompany the children on the flights.

e.     The respondent’s care of the children will be during daytime or with overnights, as ordered by the court.

f.       While the respondent has care of the children supervision shall be required unless otherwise agreed by the parties in writing or ordered by the court.

g.     The respondent shall advise the claimant in advance of his time with the children of where the children will be while in his care and he will forthwith advise the claimant of any changes in their location. The respondent shall provide to the claimant his cell phone number and any other number where he and the children can be reached while they are in his care.

h.     The respondent shall not remove the children from New Zealand without the written consent of the claimant or an order of the court. If the respondent has the care of the children in British Columbia, he shall not remove the children from British Columbia without the written consent of the claimant or an order of the court.

7.     The children shall have generous and regular communications with the respondent by phone, Skype, or such other mode of communication that is available and appropriate for the children’s ages.

8.     The parties shall share equally the cost of the visits of the respondent with the children as follows:

a.     for the visits that take place in New Zealand as provided in paragraph 6(a), the cost of the respondent’s return airfare between Vancouver and Auckland in economy class;

b.     for the visits that take place in British Columbia as provided in paragraph 6(d), the cost of the children’s and the accompanying adult’s return airfare between Auckland and Vancouver in economy class.

9.     In the event that the respondent relocates to New Zealand, he will have the children in his care as ordered by this court or as agreed by the parties in writing.

10. The respondent shall complete an anger management program, as recommended by Dr. Koopman, for at least eight weeks. Upon request by the claimant, the respondent shall provided to the claimant all documents confirming the respondent’s attendance at the program, including the dates he attended, the name of the organization providing the program, the names of any instructors or facilitators who delivered the program to the respondent, and the curriculum of the program.

11. The respondent shall attend psychotherapy, as recommended by Dr. Koopman, with a registered psychologist or psychiatrist. Upon request by the claimant, the respondent shall provide to the claimant the name of the psychologist or psychiatrist and the dates of his sessions with him or her.

12. The claimant may request further particulars, records and reports of the respondent’s attendance at an anger management program and psychotherapy. In the event of a disagreement between the parties about production of such records either party may apply to the court for a determination.

13. The parties shall limit their communications to matters only respecting the children and their communications shall be only by text messaging or email.

14. The sale proceeds of the former family home, currently held in trust by the law firm of Pietrow Law Group, (the “Sale Proceeds”), shall be divided equally between the parties after payment of the family debts set out below provided that the respondent shall be responsible for the mortgage payment of approximately $2,200 that was due on February 15, 2018, and one half of that amount shall be paid to the claimant from the respondent’s share of the Sale Proceeds.

15. The pensions of the parties shall be divided in accordance with Part 6 of the Family Law Act.

16. The Canada Pension Plan credits of the parties shall be equalized in accordance with the Canada Pension Plan legislation, with the effective dates being October 2, 2010 to December 18, 2016.

17. The amount in the respondent’s TFSA, which is approximately $6,000, shall be divided equally between the parties.

18. The respondent shall keep the 2009 Jetta and will be responsible for any debt or liabilities associated with that vehicle.

19. Each party shall keep the amount in the bank accounts in the name of such party.

20. Each party shall keep the household contents in the possession of such party.

21. The parties shall be equally responsible for the following debts which shall be paid out of the Sale Proceeds:

a.     the balance owing on the Coast Capital line of credit in the name of the claimant at the time of the separation on December 18, 2016, in the approximate amount of $9,900;

b.     the balance owing on the RBC credit card in the name of the claimant at the time of the separation on December 18, 2016, in the approximate amount of $500;

c.     the balance owing on the Coast Capital line of credit in the name of the respondent at the time of the separation on December 18, 2016, in the approximate amount of $3,500.

22. Except as provided in the preceding paragraph, each party will be solely responsible for all debts in his or her name, including, but not limited to, any debts owing by the respondent to his mother, P.L.

23. For the purposes of the Federal Child Support Guidelines (“FCSG”), pursuant to s. 19, the income of the respondent shall be imputed at $40,000 provided that if the respondent provides documents to the claimant that he is enrolled in a program that will qualify him to work in the real estate field and completes such program by December 31, 2019, then his income will be the greater of $20,000 or his actual income for 2019.

24. Commencing on January 1, 2019 the respondent shall pay to the claimant child support in an amount determined under the FCSG based on income of $40,000 or his income as provided in the preceding paragraph.

25. Commencing on January 1, 2020 the respondent shall pay to the claimant child support in an amount determined under the FCSG based on income that is the greater of $40,000 or his actual income.

26. The parties shall share special and extraordinary expenses for the children, as defined pursuant to s. 7 of the FCSG, (the “Section 7 Expenses”) in proportion to their incomes, with the respondent’s income to be determined in accordance with para. 23.

27. By September 30, 2018 and thereafter by June 30th of every year, the parties shall exchange:

a.     if applicable, their income tax return with all attachments;

b.     if applicable, their Notice of Assessment;

c.     any other documents required under the FCSG for the determination of their incomes.

28. Following the exchange of documents as provided in para. 27, the respondent’s child support payments and the parties’ respective contributions to the Section 7 Expenses shall be adjusted on November 1, 2018 and, in subsequent years, on August 1st of the year.

[192]     The parties are at liberty to speak to costs.

“Bowden J.”