S.S.L. v. J.W.W.,

• Jurisdiction: British Columbia
• Judge: Newbury, Huddart and Tysoe, JJ.A.
• Neutral Citation: 2010 BCCA 55
• Citation: 2010 BCCA 55,(2010), 284 B.C.A.C. 27 (CA),316 DLR (4th) 464,[2010] 4 WWR 453,81 RFL (6th) 38,284 BCAC 27,[2010] BCJ No 180 (QL),[2010] B.C.J. No 180 (QL),(2010), 284 BCAC 27 (CA),284 B.C.A.C. 27,316 D.L.R. (4th) 464
• Date: 05 January 2010
• Court: Court of Appeal (British Columbia)

S.S.L. v. J.W.W. (2010), 284 B.C.A.C. 27 (CA);

    481 W.A.C. 27

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. FE.023

S.S.L. (appellant/plaintiff) v. J.W.W. (respondent/defendant)

(CA037278; 2010 BCCA 55)

Indexed As: S.S.L. v. J.W.W.

British Columbia Court of Appeal

Newbury, Huddart and Tysoe, JJ.A.

February 4, 2010.

Summary:

Parents shared guardianship and custody of their two children. The children spent about 60% of their time with the mother and 40% with the father. Both had homes in the same community in Victoria, British Columbia. When the mother became engaged to be married, she applied for an order to establish the children's residence in London, Ontario, where her fiancée and his two daughters lived. The father opposed the application and offered the court two proposals: equal shared parenting in Victoria or primary residence with him.

The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 924, ordered that the parents were to have joint custody and joint guardianship, with the children continuing to spend 60% of the time with the mother and 40% with the father. The court was to remain seized of the matter for the purposes of any applications for clarification or directions or in the event that the mother decided to move to London, Ontario, without the children. The mother appealed. The father sought to introduce fresh evidence.

The British Columbia Court of Appeal allowed the appeal and directed a new trial at which time the father could adduce the fresh evidence.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 1898

Custody and access - Considerations in awarding custody - Custodial parent moving from jurisdiction - Parents, who resided in Victoria, British Columbia, shared guardianship and custody of their two children - The children spent about 60% of their time with the mother and 40% with the father - When the mother became engaged to be married, she applied for an order to establish the children's residence in London, Ontario, where her fiancée and his two daughters lived - The father opposed the application and offered the court two proposals: equal shared parenting in Victoria or primary residence with him - The trial judge ordered that the parents were to have joint custody and joint guardianship, with the children continuing to spend the same amount of time with each parent - The court was to remain seized of the matter for the purposes of any applications for clarification or directions or should the mother decide to move to Ontario without the children - The British Columbia Court of Appeal allowed the mother's appeal and ordered a new trial - The trial judge erred by allowing the status quo to supersede the balancing of other relevant factors - The court's task was to analyze the evidence in four possible scenarios: (1) primary residence with the mother; (2) primary residence with the father; (3) shared parenting in Victoria; and (4) shared parenting in London - However the court had to do so knowing that its first task was to determine which parent was to have primary residence - Proximity of parental homes would usually be in the best interest of the children, but that could be achieved in either proposed location - The existing location could not be the default position - In cases like this, the parents' evidence should focus on all four scenarios - A careful and transparent analysis was important - This approach took the focus away from the time factor - Far more significant was the role each parent had played in the children's lives - The analysis of the parent's role would inevitably require an assessment of the resources available to each parent and the potential effect on those resources in each proposed scenario - This might require an assessment of a parent's emotional and economic prospects - See paragraphs 21 to 38.

Family Law - Topic 1948

Custody and access - Variation of custody and access rights - Change of residence of child - [See Family Law - Topic 1898 ].

Family Law - Topic 4069

Divorce - Corollary relief - Custody of children - Residence of children - [See Family Law - Topic 1898 ].

Cases Noticed:

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, refd to. [para. 8].

Chera v. Chera (2008), 260 B.C.A.C. 16; 439 W.A.C. 16; 2008 BCCA 374, refd to. [para. 12].

Spencer v. Spencer (2005), 371 A.R. 78; 354 W.A.C. 78; 2005 ABCA 262, refd to. [para. 12].

Nunweiler v. Nunweiler (2000), 137 B.C.A.C. 1; 223 W.A.C. 1; 186 D.L.R.(4th) 323; 2000 BCCA 300, refd to. [para. 12].

Falvai v. Falvai (2008), 263 B.C.A.C. 74; 443 W.A.C. 74; 2008 BCCA 503, refd to. [para. 12].

Karpodinis v. Kantas (2006), 227 B.C.A.C. 192; 374 W.A.C. 192; 2006 BCCA 272, leave to appeal refused (2006), 362 N.R. 390; 241 B.C.A.C. 319; 399 W.A.C. 319 (S.C.C.), refd to. [para. 22].

Hanna v. Hanna, [2002] B.C.A.C. Uned. 210; 2002 BCCA 702, refd to. [para. 22].

Woodhouse v. Woodhouse (1996), 91 O.A.C. 91; 136 D.L.R.(4th) 577 (C.A.), refd to. [para. 25].

U. v. U., [2002] HCA 36, refd to. [para. 26].

Tropea v. Tropea (1996), 87 N.Y.2d 727 (N.Y.C.A.), refd to. [para. 27].

Payne v. Payne, [2001] EWCA Civ. 166 (C.A.), refd to. [para. 27].

Bourgeois v. Plante, 2009 PEICA 12, refd to. [para. 28].

McArthur v. Brown, [2008] B.C.T.C. Uned. 689; 2008 BCSC 1061, refd to. [para. 29].

Burns v. Burns (2000), 182 N.S.R.(2d) 101; 563 A.P.R. 101; 2000 NSCA 1, refd to. [para. 33].

Counsel:

J.J. Arvay, Q.C., and A. Latimer, for the appellant;

D.F. Tracy, for the respondent.

This appeal was heard at Victoria, British Columbia, on January 5, 2010, by Newbury, Huddart and Tysoe, JJ.A., of the British Columbia Court of Appeal. Huddart, J.A., delivered the following judgment for the Court of Appeal at Vancouver, British Columbia, on February 4, 2010.