IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100318

Docket:
29705

Registry: Penticton

Between:

SLC

Plaintiff

And

KGC

Defendant

Before: The Honourable Mr. Justice Rogers

Reasons for Judgment

Introduction

[1]            
The parties in this family action seek orders
for the division of their family assets, spousal and child support, and for
custody, guardianship and access for their two children.

[2]            
The main question in this case, however, is
whether it would be in the children’s best interests to move with their mother
to Calgary or to remain in their birth place of Penticton, B.C.

The Facts

Plaintiff’s Pre‑Relationship History

[3]            
The plaintiff is 44 years old. She was born and
raised in Calgary, Alberta. She graduated from high school there. After
graduation, the plaintiff worked as a volunteer assistant at a school for
mentally disabled persons. In 1987 the plaintiff completed a correspondence
course that led to her receipt of a diploma in Early Childhood Education. Then
the plaintiff worked for a short time for Calgary Integrated Services. Her job
there was to provide assistance to children who had been taken into government
care. One of her responsibilities was to supervise visits between such children
and their parents. The plaintiff also worked as an education assistant and at a
daycare center in Calgary.

[4]            
In 1986, when the plaintiff was 21, her working
life was interrupted by an accident. The accident happened when the plaintiff
and her mother, YP, were pedestrians on the roadside. They were struck by a
motor vehicle. Both women sustained significant injuries. The plaintiff
underwent numerous surgeries on her knees and shoulder. YP likewise underwent
numerous procedures in the course of her recovery.

[5]            
By 1992 YP had sufficiently recovered to
consider moving away from Calgary. She had, by then, developed a strong desire
to quit living in that city. She wanted to move to Penticton. The plaintiff is YP’s
only child and had lived with her since birth. The plaintiff’s father has been
completely absent from her life. The plaintiff decided to go with her mother to
Penticton and to live with her there for a while. The plaintiff was, at that
time, recovering from an operation on her knee. Neither YP nor the plaintiff
had any family members in Calgary, although they are close to a Mr. and Mrs. F
from whom they had rented a basement suite.

[6]            
Also in 1992, both YP and the plaintiff received
compensation for the injuries they suffered in the accident. The plaintiff put
part of her settlement into an annuity. As a result she receives monthly tax‑free
payments. The annunity payments increase by a fixed percentage on February 6 of
each year. As of the date of trial, the plaintiff’s annuity payments were $817
per month.

[7]            
YP used part of her settlement money to buy a
house on Stevens Crescent in Penticton.

[8]            
Around about 1993, the plaintiff was living with
her mother on Stevens Crescent in Penticton. She had recovered from her
injuries and had begun to look for work. The plaintiff’s wish was to work in a
daycare center. To do that, she had to be certified in B.C. in early childhood education
or as an early childhood education assistant. The plaintiff soon learned that
the B.C. authorities would not accept her qualifications from Alberta, and that
she could not, therefore, simply apply and become a certified early childhood educator
or education assistant in B.C. Instead, the plaintiff learned that she would
have to complete a course of study at a B.C. institution.

[9]            
The plaintiff did not return to Alberta to put
her education and qualifications to use there. Neither did the plaintiff take
the course of study she knew was necessary in order for her to become qualified
in B.C. as an early childhood educator or assistant. Instead, she continued to
live with her mother in Penticton. She had earlier given her mother what
amounted to a $40,000 bridge loan to facilitate the Stevens Crescent purchase. YP
repaid that loan by providing the plaintiff with room and board. The plaintiff
and her mother agreed that the notional value of that room and board would be
$550 per month. Neither YP nor the plaintiff gave evidence that the loan
attracted interest. On the assumption that it did not, the loan was paid off after
the plaintiff had lived in her mother’s house for six years and one month.

Defendant’s Pre‑Relationship History

[10]        
The defendant is 48 years old. He was born and
raised in Penticton. The defendant has an older brother, BC, and an older
sister, AC. BC and AC have children who are now in their 20s. AC’s daughter N
is currently pregnant with her first child and is expected to give birth in
March 2010. All of the defendant’s immediate family live in Penticton.

[11]        
The defendant has worked as a skidder operator
for 30 years. He has been steadily employed by one company in that capacity for
the past 23 years.

[12]        
In 1990 the defendant bought a small house
located on two lots on Douglas Street in Penticton. He lived in that house
alone, and later with a girlfriend, and finally with a male roommate.

History of the Parties’ Relationship

[13]        
In 1994 the parties met and began to develop a
romantic relationship. The plaintiff had been considering moving back to Calgary.
She and the defendant were beginning to be serious about each other, however,
so she decided to stay in Penticton instead.

[14]        
In July 1996, the plaintiff completed a short
course of study at the Okanagan Community College and received a diploma as an education
assistant. She began to look for work as an education assistant in schools in
the Penticton area. An education assistant works in the regular school system,
providing in‑class support for, typically, special needs children. The
plaintiff was not, however, able to find work as an education assistant. That
is because the education system had begun to cut back funding for such position.

[15]        
The plaintiff did find part‑time work at
the Penticton Community Center. She ran pre‑school programs there. She
worked an average of only four hours per week.

[16]        
The defendant, on the other hand, maintained his
steady and well‑paid work as a skidder operator.

[17]        
The parties first started living together in YP’s
house on Stevens Crescent. They began their cohabitation several weeks before
their first child, S, was born on April 12, 1998. They continued to live
together on Stevens Cresent until September 1998 when they moved into a house
that they purchased together in Penticton. That house was on Dartmouth Crescent.
The defendant let his house on Douglas Street out to tenants.

[18]        
The parties’ relationship faltered in October
1998. The plaintiff left the Dartmouth house with S. She moved back in with her
mother. The plaintiff advised the defendant of where she was shortly afterward.
However, several days later the plaintiff relocated to a women’s transition
home. That facility’s location was a secret, so the plaintiff refused to tell
the defendant where she and S were. The plaintiff acceded to the defendant’s
wish to see S, but she maintained a very tight control on where and when those
visits took place. She stipulated that the visits take place in a public place
and that they be restricted to only an hour or two at a time. In her evidence
the plaintiff did not articulate any reason for limiting the defendant’s time
with their daughter in this way.

[19]        
The plaintiff was similarly parsimonious with
her welcome to the defendant’s family. The defendant’s family was anxious to
see the new baby, but for no good reason that the plaintiff voiced in her
evidence she refused to have the defendant’s family in the house. The
defendant’s family is a set of perfectly nice, well‑behaved and good
intentioned people. The plaintiff did not offer any criticism of their
presentation. One can only infer that the plaintiff was, at the time, either
remarkably shy or unnaturally covetous of S’s company.

[20]        
In any event, the plaintiff and the defendant
reconciled and in late October or early November 1998, she and S moved back
into the Dartmouth home. Their stay was brief. On November 5, 1998 the parties
separated again. Once more, the plaintiff decamped with S to her mother’s house
and there she stayed.

[21]        
Again, the defendant sought access time with S,
and again the plaintiff was, without good reason, reluctant to allow S the
benefit of spending a generous amount of time with her father. For example,
during the defendant’s annual hiatus from work during the three month spring breakup
of 1999, he proposed that the “reasonable and generous” provision of the access
order that had been made in January 1999 include something in addition to the
minimum access stipulated in that order. The plaintiff’s initial response to his
request was to give the defendant what she purported to be a schedule of S’s activities.
Her letter to the defendant describing that schedule was meant to indicate to
the defendant that S’s time was fully accounted for and that additional time
with the defendant could not be accommodated. Under cross‑examination at
trial the plaintiff reluctantly acknowledged that S did not actually attend all
of the activities she had listed in her letter all of the time. Again, the
plaintiff offered no reason in her evidence for being niggardly with access.
The defendant certainly posed no risk to S.

[22]        
The only rational explanation for the
plaintiff’s behaviour at this time is that she believed that S would not
benefit from spending any more time with her father than the minimum stipulated
in the court order.

[23]        
In late August 1999, the plaintiff proposed to
the defendant that she take S to Calgary for a two‑week vacation. The
defendant agreed. The plaintiff arrived in Calgary late in the day on August
30. On August 31, the plaintiff commenced work at a full‑time job she had
secured at a Calgary daycare center. The plaintiff did not immediately advise
the defendant of her decision to take up full‑time work in Calgary.
Neither did the plaintiff tell her mother that she had found full‑time
work in Calgary the day after arriving in that city.

[24]        
Sometime during the second week of September
1999 the parties spoke on the telephone. The plaintiff advised the defendant
that she had found a job in Calgary, that she and S were not coming back to
Penticton, and that there was nothing he could do about it. There was, in fact,
something the defendant could do about it: he applied to the court for an order
requiring the plaintiff to return S to Penticton. The plaintiff did return.
When the defendant’s application was heard by His Honour Master Bolton, the
resulting order barred the plaintiff from removing S from her home town. In his
reasons for judgment, Master Bolton found that the plaintiff had not taken
reasonable steps to find employment in Penticton and that it was not necessary
for her to move to Calgary to find work.

[25]        
The plaintiff did not leave off her agitation to
move to Calgary. She filed affidavit material in which she swore that if she
moved to Calgary she would facilitate S’s access with her father by travelling
to Penticton every three months, by meeting the defendant at Golden, B.C. so
that each would bear one‑half of the burden of access travel, and by
making S available to the defendant in Red Deer and Edmonton where she believed
that the defendant had contacts.

[26]        
In the end, the defendant gave in to the
plaintiff’s demands and consented to an order that she should take S to
Calgary. That order stipulated that the defendant should have reasonable and
generous access including alternate weekends. The order also stipulated that
upon payment of a certain sum to the plaintiff, she would transfer her interest
in the Dartmouth house to the defendant. The parties completed that transaction.

[27]        
The plaintiff moved to Calgary in November 1999.
She took up employment at a daycare center. Contrary to her promises, the
plaintiff did not travel every three months to Penticton to facilitate S’s
access with the defendant, nor did she meet the defendant halfway between
Calgary and Penticton. Instead, the plaintiff adhered to the schedule of
minimum access provided in the November 1999 consent order. The defendant bore
the burden in time and expense of travelling to Calgary on weekends to see S.
The road trips were exhausting and flying was very expensive. The defendant persevered
with access but found that it was neither practical nor affordable for him to
travel to Calgary every second weekend.

[28]        
Eventually, sometime in the year 2000, the
parties began to reconcile. The defendant spent Christmas of 2000 with the
plaintiff and S in Calgary and they celebrated the holiday as a family there.
The defendant proposed that the plaintiff and S should return to live with him
on Dartmouth Street in Penticton. The plaintiff agreed, but on the condition
that they marry. The defendant accepted that condition. The parties married on
June 20, 2001.

[29]        
The parties resumed cohabitation in Penticton. The
defendant continued to work as a skidder operator. His hours were, and continue
to be, gruelling. He must arise from bed at 2 a.m. and drive for one to two
hours to his work site. There he puts in a ten hour shift on his machine and
then drives home. He arrives home at between 3 and 4 p.m. The defendant must go
to bed at between 7:30 and 8:30 p.m. in order to rise again at 2 a.m.

[30]        
The plaintiff continued to work sporadically in
Penticton. She generally ran children’s programs at the Penticton Community
Centre and worked perhaps four to six hours per week.

[31]        
The defendant paid all of the household bills
and the mortgage on the Dartmouth house. The plaintiff did not contribute
financially to the home despite her receipt of her monthly annuity payments.
The plaintiff cared for S. She was not a good cook or housekeeper.

[32]        
The parties’ second child A was born on October
8, 2003. The plaintiff acted as the primary care giver for A as well.

[33]        
The defendant sold the Douglas house in 2004. Up
to that time he had rented the house to tenants. The rent was just sufficient
to cover the mortgage on that property and some of the property taxes. The
plaintiff made some minor contributions to the Douglas property, mainly by
dealing with tenants’ requests and collecting rent cheques when the defendant’s
work schedule prevented him from attending to those chores himself. The
defendant realized a capital gain of approximately $95,000 from the Douglas
sale. He used $40,000 of that sum to reduce the mortgage on the Dartmouth
property. The family’s lifestyle consumed the balance.

[34]        
The parties’ relationship was never an easy one.
YP put it best when she testified that, in her view, the parties “have never
been able to sit down and quietly have a civilized conversation about anything”.
The strife between them grew until, in September 2007, the plaintiff had the
defendant served with the writ and statement of claim that commenced these
proceedings. After that the plaintiff and defendant continued to occupy the
family home, but their lives were increasingly separate.

[35]        
On February 8, 2008, the tension between the
plaintiff and the defendant boiled over and they had a yelling match over
dinner plans. Their fight took place in front of their children. The fact that
they allowed something as trivial as a missed dinner date to escalate into a
full-fledged row shows that their relationship had, as of that day, completely
disintegrated.

[36]        
Although the parties’ conduct is not generally
relevant, their testimony about that incident reveals something of their
perceptions of each other. The defendant acknowledged that it was wrong to have
made the children witness to their parents losing their tempers with each other.
He was genuinely regretful of his behaviour and wished that it had never
happened. The plaintiff on the other hand, while admitting that she, too, had
yelled at the defendant, was wholly unrepentant. The entire incident was,
according to her, entirely the defendant’s doing and she played no role in the
upset that followed. This, I think, indicates the plaintiff’s view of herself
as a victim as opposed to her true role as an actor in that incident and in the
relationship as a whole. If there is a saving grace here it is that, other than
the plaintiff having slapped the defendant on the arm, there was no physical
violence in the home that day.

[37]        
The parties separated permanently on the evening
of February 8, 2008. The plaintiff once again decamped with the children and
the family’s two dogs to her mother’s house on Stevens Crescent. They have
lived there ever since. The plaintiff has had some part‑time work, and
she receives her annuity, child support of $1,000 per month and the federal
child tax benefit. Her income from all sources in 2008 was $7,153.

[38]        
The plaintiff does not pay rent to her mother
for the half of the house that she occupies, nor does she contribute to the
household utilities. YP testified, not unreasonably, that she feels somewhat
imposed upon. She does not wish to evict her daughter and grandchildren, but
she clearly recognizes that the present situation cannot go on indefinitely. YP
wishes for her daughter to achieve independence and to move on with her life.

[39]        
On February 21, 2008 the parties attended a judicial
case conference and agreed to the terms of an interim consent order. The terms
of that order provided, among other things, that the defendant pay the child
support noted earlier and that the children’s primary residence is with the
plaintiff. The parties have joint guardianship of the children. The
guardianship order is on the Joyce model. The children have reasonable and generous
access with the defendant. That access includes, but is not limited to,
alternate weekends and every Thursday evening between 4:30 and 7:30 p.m.

[40]        
The interim order is silent with respect to
holidays and the defendant’s spring breakup. The plaintiff’s parsimonious
attitude toward access has again been a source of friction between the parties.
For example, there is no question but that the plaintiff understood that the
defendant and S wished for the children to spend equal time in each household
during the 2009 Christmas holiday. Despite having no good reason to reject that
wish, the plaintiff decreed that the children could spend only a few days with
their father during the holiday. Equally, the plaintiff was aware that the
defendant and S proposed that, in addition to the Thursday night visits, S
spend some Monday afternoon and evenings with the defendant as one‑to‑one
time, and that A spend one‑to‑one time with the defendant on some
Wednesday afternoons. Other than getting A to bed around 8:00 p.m. on school
nights, the plaintiff could not testify to a reason why the children should not
benefit from one‑on‑one time on that schedule. The plaintiff has
simply rejected the proposal.

[41]        
Again, the plaintiff’s access decisions strongly
suggest that either the plaintiff exercises her authority over additional
access as a tool to demonstrate that she has some power in the parties’
relationship or, alternatively, that she simply fails to appreciate the fact
that the defendant has a vital role to play in the children’s development.

[42]        
As for his current employment, the defendant
continues to work as a skidder operator with his long‑time employer
Brycemar.

The Parties’ Roles in the Children’s Lives

[43]        
The plaintiff has made most of the significant
decisions for the children since their birth. For example, the plaintiff
decided what pre‑school and other activities they should attend. She has
taken the children to most of their various pre‑ and post‑school
activities. Those activities include baseball and summer day camps for S, and
dance classes and swimming for both A and S. The plaintiff has chosen S’s
orthodontist and has taken her to see that fellow for an assessment of her
orthodontic needs. Although no direct evidence was led on the point, it is
reasonable to infer that the plaintiff chooses, or at least influences, the
children’s diet and that she monitors their health. The plaintiff follows the
children’s homework assignments and ensures that they complete those
assignments. The plaintiff attends parent‑teacher meetings at the
children’s schools.

[44]        
Although the defendant’s devotion to the
children cannot be questioned, the fact is that his work schedule has limited
his opportunity to play as active a role in the children’s lives as has the
plaintiff. The defendant simply cannot be at the kitchen table most mornings to
give the children their breakfasts, make their lunches and send them off to
school. Neither can he be home to greet them when they come home from school at
2:30 or 3:00 p.m. The defendant must go to bed early, so his opportunity to
attend parent‑teacher meetings is limited.

[45]        
That said, the defendant was involved with the
children as much as he was able when the parties were together. He bathed and
changed them and dressed them when the opportunity arose. He played with them
on weekends. Since the parties’ separation, the defendant has actively
supported S’s baseball. He took the initiative to enrol her in her league’s
2010 baseball season. In the past he has acted as an equipment or field manager
for S’s team. The defendant has attended those few of the children’s dance
classes and recitals as his schedule has permitted. The defendant is prepared
to help the children with their homework on the evenings and weekends when they
are with him, but he notes that they do not bring their work with them.

[46]        
The defendant says, and I accept, that he is
anxious to take a more active role in the children’s lives, particularly during
his annual three month spring breakup hiatus from work. In short, the defendant
appears to have the capacity, desire and judgment to function as the children’s
full‑time primary caregiver. His work schedule, however, has precluded
that possibility.

Children’s Social Lives

[47]        
S is in grade 7 and A is in grade 1. Both
children have developed friendships with their classmates. The evidence
indicated that S has tight links with three school friends in particular.
Unfortunately for the children, the plaintiff does not permit them to have
sleep‑over guests at their home on Stevens Crescent. She offered no reason
for having made that decision. The defendant is more accommodating to the
children’s wishes and has allowed the children to invite their friends to his
house for sleep‑overs.

[48]        
The parties adduced no evidence of the
children’s progress in school. From that lack I infer that the children are
doing as expected and that neither parent has concerns about their education.

[49]        
As noted, the plaintiff is an only child. Also
as noted, the plaintiff’s father has been completely absent from her life. If YP
has siblings they were not mentioned at trial. It follows that the children
have no family relatives on the plaintiff’s side with whom they socialize and
have close ties.

[50]        
If the plaintiff has developed close friendships
with any Penticton residents in the nearly 20 years she has lived there, none
were mentioned in evidence at trial. The plaintiff’s testimony indicated that
her friends live in Calgary. Except for the year and a half that S lived in
Calgary when she was a toddler, and except for two or three vacations to Calgary,
neither child has spent a meaningful amount of time with the plaintiff’s
acquaintances in that city. The children do have a good relationship with their
maternal grandmother. According to the evidence, YP functions as a near co‑parent
with the plaintiff in looking after S and A.

[51]        
The defendant’s entire family, consisting of his
parents, brother, sister, nephews, nieces, and soon‑to‑be
grandniece or nephew, all live in the Penticton area. They are a close family.
The defendant’s family gathers for dinner on major holidays. The defendant’s
parents are in their 80s and live in a house approximately three blocks from
the defendant’s home. The children have a close and loving relationship with
their paternal grandparents. They have happy relationships with their aunt and
uncle, and with their cousins. Their cousins are, however, older than they and
so that relationship is probably based on interests other than mutual play.

Family Assets

[52]        
The defendant has continued to live in the
Dartmouth house. He has paid the mortgage, utilities, insurance and property
taxes since separation. The defendant has not paid spousal support to the
plaintiff, but has paid child support of $1,000 per month. The defendant
presented evidence that the 2001 fair market value of the Dartmouth house was
$172,000 and that the mortgage was approximately $100,000. These figures would
produce equity of approximately $72,000 just prior to the marriage. The
defendant also adduced evidence that the 2009 fair market value of the
Dartmouth residence was $406,000 and that the mortgage balance was
approximately $35,000. Those figures would give the parties equity of
approximately $371,000.

[53]        
As she gave her evidence in chief, the plaintiff
complained that the defendant has refused to allow her to have various
household items from the Dartmouth house. She said that the defendant was
keeping her bedroom suite, the children’s furniture, and numerous personal
items such as clothes and hobby materials from her. This testimony proved to be
misleading if not actually false. The evidence clearly established that not
long after their separation in 2008 the defendant hired a storage locker,
stuffed it full of the material that the plaintiff seeks from the house, and
gave the plaintiff the entrance code to the locker and two keys to the locker’s
padlock. The plaintiff has never bestirred herself to take possession of the
locker’s contents. Instead, she has simply left the locker untouched and has taken
advantage of the defendant paying its rent.

[54]        
It is not difficult to discern the reason that
the plaintiff has not emptied the locker and taken possession of its contents.
All of the witnesses in this matter testified that YP’s house is rather small
and that it is already crowded with contents. The plaintiff would have nowhere
to put the things in the locker were she to take them over. It has, therefore,
suited the plaintiff’s purpose to have her items stored at the defendant’s
expense. What is not so easy to figure out is why the plaintiff did not simply
say that this was the case in the first instance as opposed to making a
transparently false attempt to blame the defendant for inconveniencing her.

[55]        
Other than the contents of the storage locker,
the parties have substantially divided their household goods. Once the
plaintiff takes possession of the locker, that division will be essentially complete.
The parties have agreed to retain the motor vehicles in their respective
possession – an older model Ford Bronco for the defendant and a newer model
Toyota FJ for the plaintiff. The defendant has some RRSPs.

[56]        
The parties do not have private pensions. The
parties agree that their respective CPP entitlements should be divided. They
also agree that the CPP entitlement period will be from the date of marriage on
June 20, 2001 to the date of separation on February 8, 2008.

Parties’ Positions

Plaintiff

[57]        
The plaintiff wishes to move with the children
to Calgary. The evidence she adduced that to do so would be in the children’s
best interest fell into two broad categories: their material well‑being
and their social support.

[58]        
The plaintiff testified that despite constant
searching, she has not been able to find full‑time employment in
Penticton. She says that her Alberta based early childhood education
correspondence diploma is not recognized in B.C. Her evidence was that she was
aware of that fact in 1993 or 1994. She testified that she is aware that
opportunities exist in B.C. to take on‑line courses to achieve
certification as an early childhood educator in B.C. She testified that she has
not taken advantage of those opportunities for two reasons: cost and lack of
computer skills. The cost she estimated to be approximately $14,000, although
in cross‑examination she acknowledged that the necessary courses were
available on‑line through the Pacific Rim Early Childhood Education
Institute at the much lower cost of approximately $8,000. The plaintiff also
testified that her computer skills are adequate to exchange email and to
examine S’s Facebook pages. The plaintiff also admitted that she has not
determined what skills are needed, and what skills she lacks, to tackle on‑line
courses in early childhood education.

[59]        
The plaintiff’s complaint that she cannot do on‑line
training is a bit like asserting that she cannot play Chopsticks on the piano
without bothering to first learn that it is a simple tune that is played with
nothing more than one’s left and right index fingers. That is to say, it is
unconvincing.

[60]        
The plaintiff also testified that, despite her
desire to get full‑time child care work in Penticton, she was not aware
until she was cross‑examined at trial that as of April 1, 2009, the B.C.
government has adopted a policy of accepting certificates such as hers from
other jurisdictions.

[61]        
The plaintiff also acknowledged that if she had
taken advantage of this policy and had been certified in B.C. as a base‑level
early childhood educator, she would have been qualified to apply for six full‑time
jobs in the daycare industry and in the Penticton area. Those jobs were
available as recently as a month before the trial. They paid between $14 and
$18 per hour plus benefits. As of the trial, the plaintiff had not applied for
any of these available positions.

[62]        
Furthermore, despite testifying that she wants
to work and to become economically self‑sufficient and despite her
failure to secure a job in child care, the plaintiff has made no effort
whatsoever to broaden the scope of her job search. The plaintiff offered no
evidence to suggest that her ability to work as, say, a retail sales clerk is
in any way limited by physical or other constraints.

[63]        
As for work in Calgary, the plaintiff testified
that she has received an offer of full‑time employment at the same daycare
at which she worked in her clandestine attempt to move to Calgary in September
1999. The plaintiff testified that that job would pay $12 to $13 per hour plus
a government subsidy of $6 per hour. The written job offer stipulates pay of
$11 to $12 per hour plus an unspecified government subsidy. In addition to her
wage, the plaintiff would be entitled to enrol her children in the daycare
program at no cost and her children would have free transportation to and from
their schools.

[64]        
The plaintiff gave vague evidence about where
she and the children would live in Calgary. She testified that she would rent
accommodation in northeast Calgary. That would be close to her work at the daycare
and close to her long‑time family friends Mr. and Mrs. F. The
plaintiff did not describe the accommodation or its neighbourhood in any
detail. She estimated that her rent would be on the order of $900 to $1,000 per
month.

[65]        
In summary, as to the children’s best material
interests, the plaintiff asserts that moving to Calgary would provide her with
more resources to meet their needs. She says that as a full time employee, she
would have more disposable income to spend on the children’s welfare.

[66]        
As for the children’s best interests in the
social sense, the plaintiff says that her long‑time friends Mr. and Mrs. F,
who are both in their 70s, would welcome them into their family. That family
consists of two grown children with children of their own who live in the
Calgary area. The Fs also have children who live in eastern Canada. The
plaintiff also testified that she has numerous friends from her school days in
Calgary and from when she worked there in 1999‑2001. She testified that
these friends have children and that S and A could socialize with them. No
person who actually lives in Calgary testified at the trial.

[67]        
The plaintiff asserted that the school system in
Calgary is at least as good as in Penticton. She testified that A and S have
said that they would like to move to Calgary. She testified that the children
have said that they are attracted by Calgary’s size and its amenities like its
Heritage Park, zoo and planetarium. The plaintiff is confident that the
children would be able to overcome the upset of moving away from their friends.

[68]        
As for the children’s relationship with the
defendant, the plaintiff acknowledges that it would suffer. My assessment of
the plaintiff’s presentation when she gave this evidence is that she is not
troubled by the prospect of diminishing the children’s ties with their father.
The plaintiff maintains that the defendant can visit on alternate weekends as
was his right when she lived in Calgary with S before. She testified that if
the defendant wanted to be with the children during spring breakup he could
move to Calgary and rent a house there in April, May and June of each year. She
is prepared to equally share the children’s school holidays with the defendant.

[69]        
The plaintiff seeks equalization of the parties’
RRSPs and CPP entitlements. She seeks an order for possession of the items in
the storage locker and several miscellaneous items still in the Dartmouth home.
The plaintiff seeks an order that she is entitled to a one‑half interest
in the Dartmouth house and that the defendant pay her that interest within 60
days of the release of these reasons, failing which the house be sold and the
net proceeds of sale be divided.

[70]        
The plaintiff also seeks an order fixing the
defendant’s 2009 income at $71,500 (rounded, and accounting for E.I. benefits
and allowable employment expenses). The plaintiff seeks an order for child support
for the Table amount corresponding to that income. She also seeks an order that
the defendant make pro‑rata contributions to the children’s Guideline
s. 7 expenses for 2009 and on‑going. The plaintiff submits that the
s. 7 expenses are the children’s medical and dental expenses and their
extracurricular activities such as school field trips, dance lessons, baseball,
and summer camps.

[71]        
In the event that the plaintiff does move to
Calgary, she is prepared to agree to a $250 per month reduction of child
support in recognition of the cost to the defendant of exercising access.

[72]        
The plaintiff also seeks on‑going spousal
support. She does not seek retroactive support on the ground that since
separation her equity in the Dartmouth house has been increased by the
defendant’s maintenance of the mortgage and property tax payments. If she
receives her share of that equity, that sum would, by her estimation, offset
whatever claim she might have for retroactive spousal support. The plaintiff
seeks an order for spousal support of $525 per month. She seeks payment for one
year if she moves to Calgary, or three years if she stays in Penticton.

[73]        
Finally, the plaintiff complains that the
defendant is usually five or six days late in delivering child support to her.
She seeks an order confirming that the day for payment of support is the first
of the month.

Defendant

[74]        
The defendant opposes the plaintiff’s desire to
move the children to Calgary. He maintains that the move would effectively
destroy the children’s relationship with him and with the only extended family
the children have. He says that the children would also suffer by being taken
away from the only city, society, school system and recreation they know.

[75]        
The defendant argues that despite what she says,
the plaintiff cannot be trusted to cooperate with a generous access scheme in
either Penticton or Calgary. He says that is so because the plaintiff’s behaviour
in the past has demonstrated that she equates “reasonable and generous access”
with the minimum access specified in previous access orders. He argues that the
plaintiff does not genuinely give value to the children’s relationship with him
and that she sees no reason to agree to their being with their father for any
more than the minimum court ordered allotment. Accordingly, the defendant seeks
an order setting out very detailed access.

[76]        
The defendant agrees to pay child support in
accord with his income. He agrees to pay a proportionate share of the
children’s Guideline s. 7 expenses. The defendant maintains that the
plaintiff’s income for the purposes of s. 7 expenses must be deemed to be
the sum of her annuity grossed up to account for its tax‑free status, plus
full‑time income at a modest $10 per hour. The defendant maintains that
the plaintiff’s total deemed income should be on the order of $30,000 per year.

[77]        
Perhaps most controversially, the defendant
seeks an order that he have sole custody of the children but that they
primarily reside with the plaintiff. The defendant relies on the case of Metzner
v. Metzner, [1993] B.C.J. No. 1839 (S.C.) as authority for that
unusual order. The defendant maintains that the plaintiff’s decisions regarding
the children’s relationship with him are such that the court must conclude that
the plaintiff is either unable or unwilling to work in the children’s best
interests as those interests relate to the children and their father. He
maintains that he is capable of fostering a positive relationship between the
children and both of their parents, and that the court should put the children
in his custody so that that purpose may be achieved.

Discussion

Guardianship

[78]        
The parties agree that they should share joint
guardianship of the children. They also agree to continue the terms of
guardianship as follows:

 a)       the parties shall be joint guardians of the
estate of the children;

 b)       in the event of the death of either parent, the
remaining parent will be the sole guardian of the person of the children;

 c)       the custodial parent who has primary
responsibility for the day‑to‑day care of the children will have
the obligation to advise the other parent of any matters of a significant
nature affecting the children;

 d)       the custodial parent will have the obligation to
discuss with the other parent any significant decisions which have to be made
concerning the children, including significant decisions concerning the health
(except emergency decisions), education, religious instruction and general
welfare of the children;

 e)       the parent who does not have custody will have
the obligation to discuss the foregoing issues with the custodial parent and
each parent shall have the obligation to try to reach agreement on those major
decisions;

 f)        in the event that the parents cannot reach
agreement with respect to any major decision despite their best efforts, the
custodial parent shall have the right to make such decision;

 g)       the non‑custodial parent shall have the
right, under s. 32 of the Family  Relations Act, to seek a review
of any decision which that parent considers contrary to the best interests of the
children; and

 h)       each parent will have the right to obtain
information concerning the children directly from third parties, including
teachers, counsellors, medical professionals and third‑party caregivers.

Custody and Primary Residence

[79]        
This is an initial custody application, the
outcome of which will influence whether the children remain in Penticton or
move to Calgary. The plaintiff seeks sole custody of the children and maintains
that if she is successful in that regard then she, as custodial parent, may
decide to move the children to Calgary. The defendant, as earlier noted, seeks
sole custody but not primary residence of the children. He wishes for the
children to remain in Penticton.

[80]        
The guiding principle on any application
concerning custody of children is the children’s best interest. The interests
of the parents are factors, of course, and attention must be paid to their
desires. However, the determinative factor in all such cases is what outcome
will best serve the children’s interests.

[81]        
The children’s interests are many and varied.
They include relationships with their parents, their extended families, and
their friends and acquaintances; they include educational opportunities and
social environments; they also include the provision of material support like
food, shelter, clothing and amenities such as recreation, sport,
extracurricular activities and toys of various kinds. The children’s interests
are also served by having happy and contented parents – parents who are
unsatisfied with their situations and who see greener pastures elsewhere will
naturally resent having to stay put. A parent’s resentment can percolate to the
surface of his or her behaviour and there it can negatively influence the
children’s lives.

[82]        
An assessment of the children’s best interests
in a custody case must not deteriorate into a quantitative accounting of the
time that the children have spent in the company of each parent. Time should
not dictate the outcome of the custody decision; it is only one of many factors
that must be considered. A factor not to be ignored is the role that each
parent has played in the children’s lives. In S.S.L. v. J.W.W., 2010
BCCA 55, a case involving pre‑trial shared parenting, Huddart J.A. noted
the time factor, and then said, at paragraph 32:

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

[83]        
Now, it is important to note that in the present
case and at all times prior to the trial, the parties did not share parenting
on anything like an equal basis. That fact distinguishes this case from S.S.L.
to some degree. The evidence in this trial made it clear that the plaintiff has
always been the parent who has taken primary responsibility for the children’s
health, safety, education and overall welfare. She has dealt with the
children’s more mundane necessities such as clothing, haircuts, extracurricular
activities, gifts, and medical and dental appointments (as to the importance of
those factors in custody cases, see S.S.L. v. J.W.W., supra, at
paragraph 32). The plaintiff has done well by the children in her performance
of these duties.

[84]        
Where the plaintiff has not acquitted herself
well, however, is in fostering a positive relationship between the children and
the defendant and between the children and the only extended family that they
have. I find that the plaintiff simply does not appreciate the full value to
the children that a fulsome relationship with their father would bring.

[85]        
The evidence at trial satisfied me that the
defendant has the motivation and the capacity to perform all of the parental
duties noted above, including a genuine desire for the children to have a
complete relationship with their mother. However, the defendant’s work schedule
has stood in the way of his acting as the children’s primary caregiver. Despite
his natural desire to be as involved in his children’s lives as possible, his
hours of work prevent him from tending to the majority of the children’s weekday
needs. On weekdays, the defendant is really only available to the children
after school in the afternoon and during the early evening hours ahead of his
7:30 to 8:30 bedtime. The evidence at trial did not show that the defendant
will change his employment in the foreseeable future. The defendant’s career
will, therefore, continue to stymie his ability to function as primary
caregiver to the children.

[86]        
The defendant’s work schedule also effectively
prevents his home from being the children’s primary residence. That is because
it would not be in the children’s best interests to be on their own in the
house every weekday morning, nor would it be best for them to come home to what
would probably be an empty house immediately after school or for them to go to
bed after the defendant on weeknights. Furthermore, the plaintiff’s work takes
him to remote areas where there is often no mobile phone service. He would not
be able to respond quickly to any need that might arise while he is at work.

[87]        
The defendant’s submissions at the close of the
trial indirectly recognized these facts without specifically admitting their
reality. The defendant urged the court to make an order that he be sole
custodian of the children while the plaintiff’s home be their primary residence.
The defendant pointed to the trial decision in Metzner, supra, as
an instance of such an unusual order. In Metzner, Preston J. found that
the mother was determined use her authority over management of the children’s
time to erode their relationship with their father. She went so far as to
encourage one child to make a false complaint of physical abuse at her father’s
hands. In their reasons for judgment dismissing the mother’s appeal of the
custody order, the Court of Appeal observed that:

…The judge also recognized that the wife
believed the husband was an inadequate father and that the children should not
be with him except for brief periods. The judge said he was struck by the
lengths she would go to demean the husband and that, in the judge’s view,
"[the wife] is likely to continue to frustrate the children’s access to
their father and to undermine their relationship with him if it is in her power
to do so."

(Metzner
v. Metzner (16 April 1997), Vancouver CA017624 (B.C.C.A.))

[88]        
The present case is quite different from Metzner.
Rather than actively working to destroy the children’s relationship with the
defendant, the plaintiff’s behaviour shows that she has no great objection to
the children spending time with their father. The plaintiff does, after all,
send the children off to be with the defendant on alternate weekends and every
Thursday afternoon. She has not, so far as the evidence could show, been
actually malevolent toward that relationship. What her behaviour has demonstrated
is a worrying indifference but not an enmity toward that relationship. This is
not, therefore, the kind of case where only by granting custody to one parent
could the children’s relationship with both parents be preserved.

[89]        
On the facts of this case, the defendant’s work
schedule precludes him from being the sole custodial parent and from his home
being the children’s primary residence. On the evidence adduced in this trial,
I find that the plaintiff is best situated to act as the children’s custodial and
primary residence parent.

[90]        
I have come to this conclusion with some
reservation. It troubles me that the plaintiff has so poorly executed her duty
to meet the children’s interest in spending as much beneficial time with their
father as is reasonable. On the other hand, the plaintiff has shown that she
can abide by the terms of a court order, provided that those terms are clearly
articulated and do not call on her to exercise judgment or discretion. What
follows will, therefore, comprise a detailed regime of time that the children
will spend with each parent.

[91]        
I acknowledge that these conclusions will not be
easy for the defendant to accept. There is unfairness, and perhaps a bit of
tragedy, in the fact that the defendant’s career, which has brought significant
financial benefits to his family, prevents him from being the fully involved
father that he so desires to be. Nevertheless, it is the children’s best
interests that must drive the court’s determination of custody and primary
residence.

Mobility

[92]        
Mobility is the true nut of this case. Absent
the plaintiff’s desire to move the children to Calgary, the parties would most
likely have been able to resolve their issues. However, the hardship that the
defendant experienced as he exercised access when the plaintiff and S lived in
Calgary in 1999, 2000 and 2001, and the plaintiff’s failure to appreciate her
duty to maximize access visits, combined to stiffen the defendant’s resolve to
oppose the plaintiff’s plan.

[93]        
 In S.S.L. the court observed that the
departure point for any discussion of mobility is the Supreme Court of Canada’s
decision in Gordon v. Goertz, [1996] 2 S.C.R. 27. Then, in recognition,
perhaps, of the truth that no one judgment can fully anticipate every permutation
of fact that influence where a child’s best interests lie and how those
interest can be met, the Court in S.S.L. went on to say, at paragraph
22:

[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] S.C.C.A. 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.

[94]        
S.S.L. itself was
in the latter type of case. The court described the methodology for an analysis
of mobility in a shared parenting case thus:

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

[95]        
I have already determined where the children’s
primary residence must be: with the plaintiff. That must be the case whether
the plaintiff lives in Penticton or in Calgary. In this case the issue lies in an
assessment of two possible scenarios: (i) primary residence with the plaintiff
in Penticton and access to the defendant; or (ii) primary residence with the
plaintiff in Calgary and access to the defendant.

[96]        
The status quo does not represent a
benchmark against which changes wrought by a move may be measured. That is to
say, the defendant’s opposition to the move does not have greater weight simply
because the children have been doing well under the pre‑trial regime.
Instead, the court must clearly and transparently assess the evidence relating
to both scenarios and must provide reasons which unequivocally outline the how
and why of its conclusions.

[97]        
Before moving to that analysis, I will pause to
say something about the burden of proof in mobility cases. The party advocating
relocation will, in most cases, be “rolling the dice”. He or she cannot know
with precision how things will turn out for the children in the new location.
It would, I think, be unreasonable to require the moving parent to prove on the
balance of probabilities that after the proposed move is made a certain thing
will happen for the children’s benefit. The court in S.S.L. recognized
this when, at paragraph 29, it observed:

[29]         In cases like this where courts
are called upon to make what one judge has called an “educated prediction” (McArthur
v. Brown, 2008 BCSC 1061 at para. 161) as to the best interests of the
children, based not only on evidence of their old life, but also evidence of
what parents believe will transpire in their new life, the parents’ evidence
should focus on all of the four possible scenarios.

[98]        
The plaintiff’s evidence relating to her wish to
move comprises three distinct elements. They are: (i) the plaintiff’s life in
Calgary in 1999, 2000, and 2001; (ii) the plaintiff’s evidence relating to the
life she expects to lead in Calgary if she moves there after the trial; and
(iii) documents relating to the plaintiff’s employment prospects in Calgary.
The defendant’s evidence relates primarily to the first element but bears to a
degree on the second as well. Other than criticism, the defendant adduced no
direct evidence relating to the plaintiff’s employment prospects in Calgary.

[99]        
The plaintiff testified that as soon as she
moved to Calgary in 1999 she obtained the kind of full‑time employment
that she looked for but could not find in Penticton. She testified that she and
S managed to live on their own in a basement suite which they rented from their
long‑time friends the Fs.

[100]     The plaintiff testified that she was happy to live in Calgary again.
She was happy in her employment and she was happy to be among her friends.
Although the plaintiff did not say so directly, she clearly expects the same to
be true if she moves to Calgary in 2010.

[101]     The plaintiff also testified that if she moves to Calgary after the
trial she will rent an apartment or similar accommodation close to her work.
She thought that her rent would be on the order of $900 to $1,000 per month.
She said that S and A have told her that they would like to move to Calgary.
She says that they look forward to enjoying big‑city life. The plaintiff
testified that she has several friends in Calgary who have children
approximately the same ages as S and A. She felt that the children would be
able to adapt to their new neighbourhood and would be able to make new friends
without difficulty. The plaintiff adduced no meaningful evidence relating to
the Calgary school system. She testified that A is only in Grade 1 and that she
felt that he would be able to change schools without difficulty. She allowed as
how she would not move to Calgary until after S finished her current year. The
plaintiff said nothing about the quality or location of the schools at which
the children would be enrolled in Calgary. Oddly, no person who lives in Calgary
testified to confirm their eagerness to embrace the plaintiff and the children.
Given the ease and economy of giving testimony by video, this omission from the
record is noteworthy.

[102]     The plaintiff maintains that if she moves she will be better able to
provide for the children’s material needs. She says that as a steadily employed
person she will have more disposable income to spend on their needs and wants.
She also says that the benefits of the job she expects to take in Calgary would
benefit the children.

[103]     The plaintiff adduced several letters from her prospective employer
in Calgary. Those letters confirmed that if the plaintiff came to Calgary she
could immediately step into a full‑time job and earn between $11 and $12
per hour, 35 hours per week plus some unspecified amount of government subsidy.
The plaintiff testified under cross‑examination that the subsidy would
bring her wage up to approximately $15 per hour.

[104]     The plaintiff’s annual employment income in Calgary would,
therefore, be approximately $27,300. Her annuity income would continue
unchanged. The plaintiff would also receive child support, but at a reduced
amount to account for the defendant’s cost of access. For the purposes of this
discussion, it is not unreasonable to predict that the child support payments
would be reduced by half. Also for the purposes of this discussion of
disposable income, one can assume that the plaintiff’s employment income would
be taxed at 20 percent. The plaintiff’s overall income, not including the child
tax benefit or spousal support, would therefore be on the order of $22,000
(rounded) net of tax from employment, $12,000 from her annuity grossed up for
income tax, plus approximately $6,000 by way of child support, for a total of
approximately $40,000. Assuming that the plaintiff’s expenses would be in
Calgary approximately the same as those set out on her January 2010 statement of
income and expenses (i.e.: $3,891.58) but with the addition of a rent expense
of $1,000 per month, the plaintiff’s net financial circumstances in Calgary
would be enhanced over her current circumstances as an unemployed resident of
Penticton.

[105]     The defendant pointed out that the letters confirming the employment
offer are several months old and that they lack specificity. That is true, but
it is also true that the letters say what they say and that there was no hint
of manufacture or misdirection about them. It was open to the defendant to
inquire after the accuracy of the information in the letters. The fact that the
defendant did not adduce evidence to show that the letters are misleading,
untrue or stale‑dated strongly suggests that his criticism of the offers
is more of form than substance.

[106]     The major criticism that the defendant levied at the Calgary move
was that access with the children there would be difficult for him to
accomplish, expensive to achieve, and unsatisfactory in quality. Access would
be difficult because his work schedule is such that, except for Christmas and spring
breakup, on Friday afternoons he gets home from a very long day at work. He has
been up since 2 a.m. that morning. To spend the next nine or ten hours driving
to Calgary is an invitation to having a traffic accident. Flying to Calgary
presents its own scheduling challenges, for the airlines do not necessarily
plan their departures and arrivals to accommodate any particular customer’s
needs. In order to safely return to Penticton by road on Sunday, the defendant
would have to leave Calgary in the mid‑morning. That would give the
children only a day and a half with their father. Both parties acknowledged
that A is too young to fly as an unaccompanied minor, and so it would not be
realistic to think that the children could fly to Penticton to see their
father. Access would be expensive because the defendant would have to pay for
fuel or airline tickets, and when he was in Calgary he would have to rent a
motel room and eat out at restaurants. Access would be unsatisfactory because
the defendant would be constrained by his motel environment. He would not be
able to offer the children the comfort and familiarity of the things that they
have, heretofore, kept at his house. It would also be unsatisfactory because
the children would not have the benefit of seeing their extended family during
access time.

[107]     The defendant’s evidence in favour of the plaintiff and the children
remaining in Penticton concentrated on three themes: (i) Penticton is the only
home the children have known; (ii) with only a modicum of effort and drive the
plaintiff could find full‑time work in Penticton and thus achieve the
same level of economic independence as she expects to obtain in Calgary; and
(iii) if the children remain in Penticton they will continue to benefit from
frequent and meaningful contact with the defendant and the only extended family
that they have (including, not insignificantly, their maternal grandmother). In
short, the defendant’s position is that the plaintiff has no financial need to
move to Calgary – he says she can earn as much income in Penticton as she could
in Calgary. He says that if only the plaintiff would simply pick herself up,
exercise some gumption and get a job, the children could enjoy all of the
benefits of her material support without having to suffer erosion of their
relationship with the defendant and their extended family.

[108]     The plaintiff’s evidence against staying in Penticton concentrated
almost exclusively on the job market. She says that since 1994 she has tried to
find the kind of work in B.C. that she is qualified to do in Calgary, vis:
a certified early childhood education daycare provider. She says that she has
been unsuccessful. Rather than expend the money and energy on an on‑line
course of study to become certified in B.C., the plaintiff wishes to take the route
of least resistance and return to Calgary. There, she says, she can work in her
chosen field without the cost and trouble of further education.

[109]     The plaintiff was not aware until it was put to her in cross
examination that since April 2009 B.C. has had a policy of accepting extra‑provincial
training and qualifications such as hers. The plaintiff acknowledged that six
full‑time jobs in the early childhood education field for which under the
B.C. policy she would be qualified were advertised in the Penticton area in the
month before the trial.

[110]     I have found that the plaintiff should have custody of the children.
I have also found that it would be in the children’s best interests for the
parties to share joint guardianship under the terms of a Joyce order. One of
those terms authorizes the defendant to challenge any significant decision the
plaintiff wishes to make concerning the children’s welfare. The plaintiff’s
desire to move the children to Calgary fits in that category of decision. The
terms of the guardianship order therefore specifically authorize the court to
regulate what would otherwise be the custodial parent’s right to move the
children as she wishes.

[111]     I find that the plaintiff’s desire to move to Calgary in order to be
a better provider for the children is illusory. On the evidence adduced in this
trial, the plaintiff has ample opportunity in Penticton to find work in her
chosen field. She does not, therefore, need to move the children in order to
make more money and so have more disposable income which she can spend on them.

[112]     Furthermore, even if the plaintiff, with her current Alberta
qualifications, does not immediately qualify for one of the six jobs pointed
out to her in cross‑examination, she could take a series of on‑line
courses and by that means unquestionably become certified in B.C. as an early childhood
educator. The plaintiff lives rent‑free in her mother’s home and she is
in no immediate jeopardy of eviction. The evidence did not satisfy me that on‑line
courses are beyond the plaintiff’s technical or financial means.

[113]     I find that if you remove the economic factor from the matrix, the
children’s best interests would be harmed by moving them to Calgary. That is
not because they would have to go to new schools or find new friends – they are
young, bright and adaptable children, they would certainly be able to fit in to
a new social and educational milieu. Rather, I find that relocating the
children would remove them from the only extended family (both paternal and
maternal) that they have, and it would seriously damage their relationship with
their father. I can find no benefit to the children in a move to Calgary that
would justify wreaking such havoc on their relationships with their father and
extended family.

[114]     I therefore order that the defendant must succeed on his application
to oppose the plaintiff’s proposal to move the children to Calgary.

Access

[115]     As noted, I have found that the plaintiff suffers from a kind of
“blind spot” in her appreciation of the value to the children of their
relationship with the defendant. It is not that the plaintiff works to actively
undermine that relationship; it is, rather, that she considers the relationship
superfluous to the children’s needs. The relationship does not matter in her
mind, and so she gives it no effort beyond compliance with the minimum terms of
court‑ordered access.

[116]     A court order cannot imprint the plaintiff with some different and
more appropriate mindset. Recognition of the plaintiff’s mindset is, however, a
useful tool when it comes to crafting the terms of an access order for the children.
Because the plaintiff cannot be trusted to exercise her discretion in a way
that would serve the children’s best interests by liberalizing their time with
their father, any discretion left to her in an access order should be carefully
circumscribed.

[117]     Given the defendant’s schedule when he is working, it is sensible
that the children’s mid‑week visits be limited to after school to a time
between 7 and 8 p.m. It is also sensible that the children have regular one‑on‑one
time with the defendant. That is, after all, the way that a family operates:
everyone is not always together with everyone else. The alternate weekend
access regime has worked well for the children and should continue. The
children would certainly benefit from being with their father half of the time
during the defendant’s spring breakup. They would equally benefit from spending
one half of the Christmas vacation with him. Because the defendant typically
works during the children’s school spring break and summer holidays, it would
not be sensible for them to live with him half time during those holidays.

[118]     I order that the children’s access with the defendant be on the
following schedule:

 1.       The interim access regime shall remain in effect
until March 31, 2010.

 2.       Commencing on April 1, 2010:

 a.       the children will have access with the
defendant alternate weekends from 4:00 p.m. on Friday until 7:00 p.m. on Sunday;

 b.       S and A will have alternate one‑to‑one
access with the defendant on Tuesdays. S’s access will be between 4 p.m. and
7:30 p.m. and A’s access will be between 4 p.m. and 7 p.m. S’s access will
begin the cycle on Tuesday, April 6, 2010;

 c.       Both children will have access with the
defendant every Thursday afternoon and early evening between 4 p.m. and 7:30
p.m.;

 d.       If one or both children is involved in
an activity scheduled on a weekday or weekend access day, the defendant will,
if his work schedule permits, take and retrieve the child or children from the
activity, and he may attend the activity if he wishes. The plaintiff will take
or retrieve the child or children from the activity if the defendant’s work
schedule prevents him from doing so himself.

 3.       In even numbered years the children will have
access with the defendant from 4 p.m. of the last day of school before Christmas
to the mid‑point of the children’s Christmas holiday at 7:00 p.m. In odd
numbered years, the children will have access with the defendant from the mid‑point
of their Christmas holiday to 7 p.m. of the day before their school resumes.

 4.       When he is laid off from his regular work during
his employer’s spring breakup, the children will live with the defendant in
alternate weeks from 4:00 p.m. on Fridays until the beginning of the children’s
school day the following Friday.

 5.       Each parent may have unrestricted and unmonitored
telephone access with the children at anytime. Neither parent will restrict a
child’s access to a mobile phone as a method of discipline unless the child
transgresses against a rule that has been adopted by both parents and is
specifically directed to the use of the mobile phone (such as a rule against
use during classroom instruction). The parents will create a written list of
such rules and will each keep a copy of the list so that they or the children
may have easy reference to it. The monthly cost of mobile phones for one or
both of the children will be a Guideline s. 7 expense.

 6.       In the event that it is inconvenient or
impossible for either parent to care for one or both of the children at a time
when they are scheduled to be in that parent’s care, that parent will have a
positive obligation to notify the other parent of that fact and to request the
other parent to care for the children during that time. Neither parent will
unreasonably refuse such a request.

Family Assets

Statutory Framework: Family Relations Act, Sections 58, 59
and 60

[119]    
The Family Relations Act, R.S.B.C. 1996,
c. 128, establishes a class of property called family assets. The
provisions of the Act most relevant to this litigation are:

58 (1)
Subject to section 59, this section defines family asset for the purposes of
this Act.

(2) Property owned by one or both spouses
and ordinarily used by a spouse or a minor child of either spouse for a family
purpose is a family asset.

..

 (c)
money of a spouse in an account with a savings institution if that account is
ordinarily used for a family purpose;

 (d)
a right of a spouse under an annuity or a pension, home ownership or retirement
savings plan;

59 (1) If
property is owned by one spouse to the exclusion of the other and is used
primarily for business purposes and if the spouse who does not own the property
made no direct or indirect contribution to the acquisition of the property by
the other spouse or to the operation of the business, the property is not a family
asset.

(2) In section
58 (3) (e) or subsection (1) of this section, an indirect contribution includes
savings through effective management of household or child rearing
responsibilities by the spouse who holds no interest in the property.

60 The onus
is on the spouse opposing a claim under section 56 to prove that the property
in question is not ordinarily used for a family purpose.

[120]     The parties do not dispute that their household goods, motor
vehicles, RRSPs and the former family home are family assets within the meaning
of the Act.

Division of Assets: Statutory Framework: Family Relations
Act, Sections 56 and 65

[121]    
The starting point for a discussion of division
of family assets is the Act’s decree that equality is the default:

56 (1)
Subject to this Part and Part 6, each spouse is entitled to an interest in each
family asset on or after March 31, 1979 when

 (a) a separation agreement,

 (b) a declaratory judgment under
section 57,

 (c) an order for dissolution of
marriage or judicial separation, or

 (d) an order declaring the
marriage null and void

respecting the marriage is first made.

(2) The interest under subsection (1) is an
undivided half interest in the family asset as a tenant in common.

(3) An interest under subsection (1) is
subject to

 (a) an order under this Part or
Part 6, or

 (b) a marriage agreement or a
separation agreement.

(4) This
section applies to a marriage entered into before or after March 31, 1979.

65 (1) If the
provisions for division of property between spouses under section 56, Part 6 or
their marriage agreement, as the case may be, would be unfair having regard to

 (a)
the duration of the marriage,

 (b)
the duration of the period during which the spouses have lived separate and
apart,

 (c)
the date when property was acquired or disposed of,

 (d)
the extent to which property was acquired by one spouse through inheritance or
gift,

 (e)
the needs of each spouse to become or remain economically independent and self
sufficient, or

 (f)
any other circumstances relating to the acquisition, preservation, maintenance,
improvement or use of property or the capacity or liabilities of a spouse,

the Supreme Court, on application, may order
that the property covered by section 56, Part 6 or the marriage agreement, as
the case may be, be divided into shares fixed by the court.

(2) Additionally or alternatively, the court
may order that other property not covered by section 56, Part 6 or the marriage
agreement, as the case may be, of one spouse be vested in the other spouse.

(3) If the division of a pension under Part
6 would be unfair having regard to the exclusion from division of the portion
of a pension earned before the marriage and it is inconvenient to adjust the
division by reapportioning entitlement to another asset, the Supreme Court, on
application, may divide the excluded portion between the spouse and member into
shares fixed by the court.

[122]     The evidence at trial established that the fair market value of the
Dartmouth house in June 2001 was $172,000. There was a $100,000 mortgage
registered against its title. The evidence also established that at trial the
fair market value of the house was $406,000 and that there was a $35,000
mortgage against the property.

[123]     The only significant dispute that lies between the parties as to
division of assets relates to the Dartmouth property. The plaintiff maintains
that she should receive one‑half of its equity at trial. The defendant
argues that the equity should be apportioned in his favour. The defendant
relies on the fact that he had approximately $72,000 equity in that property
when the parties married. He wishes to preserve that portion of the equity from
division.

[124]     The statutory factors to be considered are as follows.

Duration of the Marriage

[125]     This was an eight and a half year marriage. Without making an
empirical study of statistics relating to marriage length, my impression is
that the parties’ marriage neither long nor short, but was of average length.

Duration of the Period During which the Spouses Have
Lived Separate and Apart

[126]     The parties have been separated since February 2008. The defendant
has paid the mortgage and other charges on the Dartmouth property since then.
The parties agree that they should share the increase in equity those payments
produced during that period.

Date When Property was Acquired or Disposed of

[127]     The date that the property was acquired is relevant in this case.
The defendant purchased any interest that the plaintiff had in the property
when the parties negotiated their first separation in 1999. The defendant owned
the property free and clear of any claim by the plaintiff for the approximately
two years before the parties married in 2001.

Extent to which Property was Acquired by One Spouse
Through Inheritance or Gift

[128]     This factor is not relevant here.

Needs of Each Spouse to Become or Remain Economically
Independent and Self‑Sufficient

[129]     The plaintiff maintains that the defendant’s career provides him
with complete economic independence and self‑sufficiency. The defendant
does not argue against that proposition. The plaintiff goes on to say that when
she chose to marry the defendant she abandoned her daycare career in Alberta.
She says that the marriage had the effect of limiting her ability to be
economically independent and self‑sufficient.

[130]     There is truth in the plaintiff’s assertions on this issue. The
plaintiff did have a job in Calgary between 1999 and 2001. She was living
independently. She gave that job up when she moved back to Penticton after the
parties’ marriage. The parties agreed that she should primarily be a stay‑at‑home
mother. Her need to re‑enter the workforce did not come into sharp focus
until the parties separated in February 2008. By then she had not had
meaningful employment for approximately seven years.

[131]     The evidence was not entirely clear that but for the marriage the
plaintiff would have had the foresight or means to acquire real estate in
Calgary. It is clear that by marrying the defendant the plaintiff was
effectively barred from acquiring her own real estate.

[132]     On the whole, this factor militates in favour of the plaintiff’s
position.

Other Circumstances Relating to the Acquisition,
Preservation, Maintenance, Improvement or Use of Property or the Other Assets

[133]     The defendant made the majority of the financial contributions to
the property. The plaintiff was, as noted, not a good cook or a good
housekeeper. She was, however, home at most times and her contribution to the
household permitted the defendant to enjoy the benefits of family life. Neither
sort of contribution outweighs the other.

[134]     After considering all of these factors, I find that the defendant
has not shown that it would be unfair to equally divide the equity in the
Dartmouth as of the date of trial. That equity amounts to $371,000. The
plaintiff’s interest in that equity is $185,500.

[135]     The defendant submitted that he wished to purchase the plaintiff’s
interest in the house. The defendant may acquire that interest upon payment to
the plaintiff of $185,500 within 60 days of the release of these reasons. In
the event that the defendant does not make that payment, the parties will have
joint conduct of the sale of the property. Each will be at liberty to apply for
directions relating to marketing or the sale of the property. I will not be
seized of such applications.

Other Assets

[136]     The parties agree that their CPP entitlements should be divided
between them in accord with the relevant legislation. The entitlement period
will be June 21, 2001 to February 2, 2010.

[137]     The defendant’s RRSPs shall be equalized by way of spousal roll‑over.
The valuation date of the RRSPs will be February 2, 2010. The defendant
proposed that the division of his RRSPs be limited to the amount accrued during
the marriage. The defendant did not, however, adduce evidence to show that a
significant portion of those RRSPs existed before June 21, 2001. It is
therefore not possible to conclude that an equal division of the RRSP value
would be unfair to the defendant. The whole of the RRSP values shall be divided
equally.

[138]     The parties shall retain the motor vehicles and household goods in
their possession with the exception of any of the plaintiff’s career related
materials remaining in the Dartmouth house and any pre‑marriage heirlooms
or photos relating to the defendant that the plaintiff may possess. The parties
shall deliver such materials to their respective solicitors for delivery to the
other within 30 days of the release of these reasons. For the purposes of this
portion of the judgment, the items in storage shall be deemed to be in the
plaintiff’s possession as of the date of release of these reasons. After the
release of these reasons the defendant shall have no obligation to the
plaintiff to continue to pay the storage charges for those items.

Parties’ Income

Plaintiff

[139]     For the purposes of Guideline s. 7 expenses, the
plaintiff’s annuity must be accounted and grossed up for income tax: Guidelines
s.19(1)(h). I will, somewhat arbitrarily, use 20 percent as the gross up
factor. The plaintiff’s 2010 annuity income will, therefore, be deemed to be
$11,764.

[140]     In addition to that sum, I find that the plaintiff is not disabled
or incapacitated from most entry‑level service oriented positions. I find
that the plaintiff is capable of immediately working full time at minimum wage
in some capacity, be it retail sales, fast food, or some other service
position. At 35 hours per week that would generate an income of approximately
$14,500. I find that to be the minimum employment income that the plaintiff is
capable of earning.

[141]     The plaintiff’s total annual income for the purposes of support is
therefore deemed to be $26,264.

Defendant

[142]     The defendant’s income for the purposes of Table and s. 7 child
support and for the assessment of the plaintiff’s claim for spousal support is
$71,600 per year. This figure accounts for the plaintiff’s Employment Insurance
and employment deductions.

Spousal Support

[143]    
In a divorce proceeding, the court’s authority
to make an initial spousal support order is found in s. 15.2 of the Divorce
Act:

15.2 (1) A
court of competent jurisdiction may, on application by either or both spouses,
make an order requiring a spouse to secure or pay, or to secure and pay, such
lump sum or periodic sums, or such lump sum and periodic sums, as the court
thinks reasonable for the support of the other spouse.

(2) Where an application is made under
subsection (1), the court may, on application by either or both spouses, make
an interim order requiring a spouse to secure or pay, or to secure and pay,
such lump sum or periodic sums, or such lump sum and periodic sums, as the
court thinks reasonable for the support of the other spouse, pending the
determination of the application under subsection (1).

(3) The court may make an order under
subsection (1) or an interim order under subsection (2) for a definite or
indefinite period or until a specified event occurs, and may impose terms,
conditions or restrictions in connection with the order as it thinks fit and
just.

(4) In making an order under subsection (1)
or an interim order under subsection (2), the court shall take into
consideration the condition, means, needs and other circumstances of each
spouse, including

 (a)        the length of
time the spouses cohabited;

 (b)        the functions performed by each spouse
during cohabitation; and

 (c)        any order, agreement or arrangement
relating to support of either spouse.

(5) In making an order under subsection (1)
or an interim order under subsection (2), the court shall not take into
consideration any misconduct of a spouse in relation to the marriage.

(6) An order made under subsection (1) or an
interim order under subsection (2) that provides for the support of a spouse
should

 (a)        recognize any economic advantages or
disadvantages to the spouses arising from the marriage or its breakdown;

 (b)        apportion between the spouses any
financial consequences arising from the care of any child of the marriage over
and above any obligation for the support of any child of the marriage;

 (c)        relieve any economic hardship of the
spouses arising from the breakdown of the marriage; and

 (d)        in so far as practicable, promote the
economic self‑sufficiency of each spouse within a reasonable period of
time.

[144]     Initial spousal support applications require the court to consider
two fundamental issues: 1) whether the applicant is entitled to spousal
support; and if so, 2) the amount and duration of the support order.

[145]    
In Yemchuk v. Yemchuk, 2005 BCCA 406,
Prowse J.A. observed that a discussion of entitlement usually starts with
consideration of the two seminal spousal support cases in Canada:

[19]            The two leading authorities
which are almost invariably referred to in cases dealing with spousal support
are Moge v. Moge, [1992] 3 S.C.R. 813 and Bracklow v.
Bracklow, [1999] 1 S.C.R. 420, both of which were referred to in the
reasons of the trial judge. In brief, the Moge decision focuses
primarily on the compensatory aspects of spousal support, but makes it clear
that need continues to be a basis for an order of spousal support in
appropriate cases. The Bracklow decision expands upon the
discussion of spousal support in Moge and identifies three
fundamental bases for an award of spousal support:  compensatory, contractual
and non‑compensatory (needs‑based).

[146]     The compensatory support model is designed to redress an economic
imbalance that arises as a consequence of the marriage and the parties’
function within the union. At its heart, the compensatory model assumes that
spouses retain their economic independence throughout the marriage, although
the marriage may stifle the spouse’s opportunity to fully exercise and enjoy
that independence.

[147]     The contractual model aims to give effect to any agreements that the
parties may have made before or during their union.

[148]     The non‑compensatory model is predicated on the principle that
by entering into marriage, spouses commit to one another through thick and thin
and to a certain extent whether or not they continue to be married to one
another. The social obligation arising from the exchange of marriage promises
supplies the rationale for non‑compensatory spousal support; the means
and needs of the spouses supplies the data upon which the merits of non‑compensatory
spousal support is measured.

[149]    
Finally, the B.C. Court of Appeal has affirmed
that the three spousal support models do not stand apart from one another. In Chutter
v. Chutter 2008 BCCA 507, Rowles J.A. said:

[49]            Although the compensatory and non‑compensatory
grounds for spousal support are animated by different models of marriage, the
case authorities hold that there is no single basis of support or objective
under the Divorce Act that supersedes the other, and that many
claims involve aspects of both compensatory and non‑compensatory
principles (Bracklow, at para. 27; Moge, at
852). A court is not called upon to decide on one basis for support to the
exclusion of the other but rather to “[apply] the relevant factors and strik[e]
the balance that best achieves justice in the particular case” (Bracklow,
at para. 32). Moreover, the doctrine of equitable sharing is the
overarching principle that must be borne in mind (Moge, at 864).

[150]    
In Chutter the court was careful to point
out that the “needs” part of the non‑compensatory model is not answered
by a finding that the applicant spouse can feed, clothe and house him or
herself at a subsistence level. After referring to a series of authorities in
which the needs test was discussed (Myers v. Myers (1995), 17 R.F.L.
(4th) 298 (B.C.C.A.); Allaire v. Allaire (2003), 170 O.A.C. 72, 35
R.F.L. (5th) 256; Yemchuk v. Yemchuk, 2005 BCCA 406; Tedham v. Tedham,
2005 BCCA 502; and Hodgkinson v. Hodgkinson, 2006 BCCA 158), Rowles J.A.
approved of this passage by the Ontario Court of Appeal in Fisher v. Fisher,
2008 ONCA 11:

53      Self‑sufficiency, with its
connotation of economic independence, is a relative concept. It is not achieved
simply because a former spouse can meet basic expenses on a particular amount
of income; rather, self‑sufficiency relates to the ability to support a
reasonable standard of living. It is to be assessed in relation to the economic
partnership the parties enjoyed and could sustain during cohabitation, and that
they can reasonably anticipate after separation…

[151]     Turning, then, to the legislation, in the present case, there is no
order, agreement or arrangement that could engage subsection 15.2(4)(c) of the Divorce
Act. Therefore, only the general provisions of s. 15.2(4) and
subsections 15.2(4)(a) and (b) have relevance here.

[152]     The parties cohabited from June 21, 2001 to February 8, 2008 – a
period of just over six and a half years. The plaintiff performed most of the
household tasks. She was the primary care giver for the children. She did work outside
the home but only in part time and she never maximized her earning potential.

[153]     The defendant worked at his job throughout the marriage. He looked
after the exterior of the house and its yard. The defendant was not disengaged
from the children, but the amount of time that he could devote to their care
was limited by the nature and schedule of his work.

[154]     In terms of the functions that the parties performed during their
cohabitation, the marriage could be said to have been traditional.

[155]     The plaintiff’s condition, means, needs and other circumstances were
adequately described in the evidence. The plaintiff has no medical or other
conditions that would affect her ability to earn income. She is 44 years old.
It would be a challenge for the plaintiff to start a off in a brand‑new
career that requires an entirely new skill set. The plaintiff’s condition does
not, however, require her to take retraining in some new field. The evidence
showed that she qualifies in B.C. to take employment in early childhood education
and that such jobs are available to her. Even if such jobs were not available,
there was nothing in the evidence to suggest that the plaintiff could not earn
at least a minimum wage in a service‑oriented position. The plaintiff’s
current means are her annuity, child support and the child tax benefit. She can
quickly add employment earnings to those means. As noted above, I deem that the
plaintiff’s current annual income earning capacity including her annuity is
$26,264.

[156]     The plaintiff’s subsistence needs are limited to providing food,
clothing, personal incidentals and transportation for herself and the children.
The plaintiff does not pay rent for the accommodation she has in her mother’s
house and she does not contribute to the cost of household utilities. The
plaintiff relies on her mother to provide care for one or both children when
the plaintiff is otherwise occupied. She does not, therefore, have any daycare
expenses. Presumably the plaintiff’s free ride will end when she is paid out
for her interest in the Dartmouth house. Shortly after she receives those
funds, the plaintiff will likely buy a house, condominium, townhouse, duplex or
an apartment in which she and the children will live. According to the
plaintiff’s January 2010 financial statement, her at‑trial annual
expenses amount to $46,700. This includes the cost to her of being the
children’s primary caregiver.

[157]     The plaintiff’s circumstances post‑separation are not
equivalent to her circumstances during the marriage. They are diminished. The
plaintiff is living in her mother’s house and is squeezed for space. She does
not have security of tenure there. Although YP is unlikely to evict her
daughter and grandchildren, as she gave her evidence her dissatisfaction with
the current situation was palpable. The plaintiff is unlikely to be so obtuse
as to not appreciate that fact.

[158]     The defendant suffers from no condition which affects his ability to
earn income. The defendant has a steady job with a loyal and supportive
employer. His annual income is on the order of $72,000. The defendant’s needs
are limited to keeping up the Dartmouth house and providing for his own
clothing, food and personal items. He will pay approximately $1,000 per month
for basic child support. The defendant’s statement of income and expenses
indicated that his annual expenses total some $85,000.

[159]     The defendant’s post‑separation circumstances (except, of
course, for the fact that the children no longer live with him) remain
essentially unchanged. He continues to go to work and to live in the Dartmouth
house. The defendant offered no evidence to suggest that under the present
regime he is financially stressed.

[160]     In my view, the plaintiff does merit an order for spousal support on
the basis of both the compensatory and non‑compensatory models. When the
parties married, the plaintiff sacrificed a job in Calgary to move to
Penticton. The plaintiff’s responsibilities as a stay‑at‑home
mother and spouse stood in the way of her pursuit of education or career. The
plaintiff has clearly been economically disadvantaged by the marriage and its
dissolution. Further, the plaintiff’s lifestyle is not equivalent to the
lifestyle that she experienced when the parties were together. She has
demonstrated a need for spousal support and the defendant has a demonstrated
ability to pay it.

[161]     The Spousal Support Advisory Guidelines are a useful tool in
the assessment of spousal support. Based on my findings of the parties’ income
and the children’s primary residence, the Spousal Support Advisory Guidelines
formulae indicate spousal support in this case should range from $71 to $651
with a mid‑point of $371. The indicated duration of support is between
four and twelve years.

[162]     I note that in her submissions at the end of the trial, the
plaintiff argued that if she stays in Penticton then she should receive spousal
support of $525 per month for a period of three years. In taking this position
the plaintiff has acknowledged that in relatively short order she can be self‑sufficient
on her own earnings. The plaintiff’s position lies within the support
parameters suggested by the Spousal Support Advisory Guidelines. There
is no compelling reason why a spousal support order should not be congruent
with those parameters and the plaintiff’s submissions.

[163]     There will, therefore, be an order that the defendant pay the
plaintiff spousal support of $525 per month commencing on April 1, 2010 and
terminating on March 31, 2013.

Child Support

Table Amount

[164]     The Table amount for the support of the parties’ two children is
$1,067 per month. There will be an order that the defendant pay that amount to
the plaintiff commencing on April 1, 2010.

Section 7

[165]     The children’s s. 7 expenses include their dance lessons,
registration fees and expenses incidental to their participation in organized
recreational league play such as baseball, softball and soccer, and such
individual recreation such as swimming, together with the mobile phone expenses
noted earlier. The cost of school field trips in excess of fund raising efforts
are also s. 7 expenses. Medical and dental expenses above the $100
deductable prescribed in the Guidelines and in excess of extended health
and dental insurance coverage are also s. 7 expenses.

[166]     The children’s school supplies, regular school clothing and hot
lunch programs are not s. 7 expenses.

[167]     The defendant and the plaintiff will contribute to those expenses in
the proportion that their incomes bear to one another. The defendant will
contribute his share of the noted s. 7 expenses retroactive to the
parties’ separation on February 8, 2008. The defendant shall pay that
retroactive sum within six months of the release of these reasons.

Date of Payment

[168]     The plaintiff complains that the defendant is often late in
delivering his child support cheques. She says that sometimes she does not
receive those cheques until late in the first week of the month. The defendant
acknowledges that his cheques are late, but he says that receiving a good
cheque a bit late is better than receiving a bad one on time. Those are the
choices because, according to the defendant’s evidence, he is paid on the fifth
and the twentieth of every month. Given the bills he has to pay, the defendant
asserts that it is really only on the fifth that he can be sure of covering the
support cheque. The defendant seeks an order that the due date for payment of
support accord with the arrival of his paycheques.

[169]     Given that the child support regime exists to extend the family’s
pre‑separation economic function into the post‑separation phase of
their lives (albeit imperfectly) it seems only sensible that the due date for
support should approximate the schedule on which the family based their budget
when they were together. Before the separation this family lived from paycheque
to paycheque and those paycheques arrived on the fifth and the twentieth of the
month. The separation did not alter the family’s reliance on those cheques, nor
did it change when they came.

[170]     It makes sense, then, to order that the defendant shall pay support
to the plaintiff one day after he receives his first paycheque of the month.
For greater certainty, the defendant’s support payments will be due on the
sixth day of every month commencing April 6, 2010.

Costs

[171]     As mentioned earlier, the most serious point in dispute between the
parties in this litigation was the plaintiff’s wish to relocate the children to
Calgary. The mobility issue consumed the majority of the time and evidence at
trial. It was clearly the focus of the parties’ attention.

[172]     The defendant has succeeded on the mobility issue. The defendant
has, in my opinion, achieved substantial success in the litigation. As
stipulated in Gold v. Gold (1993), 82 B.C.L.R. (2d) 180 (C.A.), costs
should normally go to the successful litigant. The defendant shall therefore
have his costs of the proceeding on Scale B.

“P.J. Rogers J”