Stav v. Stav, 2012 BCCA 154

• Judge: Prowse, Kirkpatrick and D. Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 05, 2012
• Jurisdiction: British Columbia
• Citations: 2012 BCCA 154;(2012), 319 B.C.A.C. 184 (CA)

Stav v. Stav (2012), 319 B.C.A.C. 184 (CA);

    542 W.A.C. 184

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. AP.008

Lilach Stav (respondent/claimant) v. Gil Stav (appellant/defendant)

(CA039325; 2012 BCCA 154)

Indexed As: Stav v. Stav

British Columbia Court of Appeal

Prowse, Kirkpatrick and D. Smith, JJ.A.

April 5, 2012.

Summary:

The parents of three children shared de facto joint custody and joint guardianship and had an equal parenting regime, but there was no formal order. The mother applied for permission to move from Vancouver to Israel with the children. The trial judge awarded the parties joint custody and joint guardianship "according to the Joyce model accommodated to reflect the parties living in different countries" and designated the mother's residence in Israel as the children's principal residence. The mother and children moved and the father followed. The father appealed.

The British Columbia Court of Appeal allowed the appeal. The court continued the joint custody and guardianship order, but ruled that the father was entitled to move the children to Vancouver, with the mother to have extended access to the children in Vancouver on a shared parenting basis.

Family Law - Topic 1881

Custody and access - Considerations in awarding custody - Welfare or best interests of child paramount - The parents of three children shared de facto joint custody and joint guardianship and had an equal parenting regime, but there was no formal order - The mother applied for permission to move from Vancouver to Israel with the children - A trial judge awarded the parties joint custody and joint guardianship and designated the mother's residence in Israel as the children's principal residence - The father of the children appealed, arguing that the trial judge applied the Gordon v. Goertz principles as if the mother were the custodial parent and he was the access parent - The British Columbia Court of Appeal stated, inter alia, that trial judge's reasons tended to correlate the best interests of the children with the best interests of the mother - Thus, despite the judge's findings that the parents were equally involved with the children, the trial judge conducted her analysis by effectively treating the mother as the custodial, or primary residence, parent - That was significant, because the authorities clearly gave greater effect to the relationship between the children and the custodial parent than they did to the relationship between the children and the access parent in determining mobility issues - See paragraphs 54 to 59.

Family Law - Topic 1881

Custody and access - Considerations in awarding custody - Welfare or best interests of child paramount - The parents of three children shared de facto joint custody and joint guardianship and had an equal parenting regime, but there was no formal order - The mother applied for permission to move from Vancouver to Israel with the children - A trial judge awarded the parties joint custody and joint guardianship and designated the mother's residence in Israel as the children's principal residence - The children's father appealed, arguing that the trial judge failed to give any credence to his concerns about the safety of living in Israel - The British Columbia Court of Appeal stated that the parties had chosen to leave Israel to live and raise their children in Canada as Canadians - The trial judge did not say that the father's fears about their security in Israel were not genuine; rather she seemed to have dismissed them as being of no consequence - In so doing, the court found that the trial judge erred - While the relative safety of Canada versus Israel as a place in which to raise children might not have been a major factor in the trial judge's analysis, it was one of many factors relevant to the children's best interests - See paragraphs 107 to 110.

Family Law - Topic 1881

Custody and access - Considerations in awarding custody - Welfare or best interests of child paramount - The parents of three children shared de facto joint custody and joint guardianship and had an equal parenting regime, but there was no formal order - The mother applied for permission to move from Vancouver to Israel with the children - A trial judge awarded the parties joint custody and joint guardianship and designated the mother's residence in Israel as the children's principal residence - The children's father appealed - The British Columbia Court of Appeal allowed the appeal where the trial judge made both errors in principle and misapprehensions of the evidence - Rather than remit the matter for reconsideration, the appeal court made its own determination of the best interests of the children - The court applying the factors in Gordon v. Geortz, held that the children's interests would be best served by having their primary residence in Vancouver with as much contact as possible with the mother - The order of joint custody and guardianship would continue - The mother was to have extended contact with the children in the summer and shared parenting any time she was in Vancouver - See paragraphs 119 to 155.

Family Law - Topic 1890

Custody and access - Considerations in awarding custody - Child's preference - The parents of three children shared de facto joint custody and joint guardianship and had an equal parenting regime, but there was no formal order - The mother applied for permission to move from Vancouver to Israel with the children - A trial judge awarded the parties joint custody and joint guardianship and designated the mother's residence in Israel as the children's principal residence - The children's father appealed, arguing that the trial judge ignored the views of his 14 year old son who wanted to stay in Vancouver and live primarily with his father - The son also had reservations about the mandatory military service in Israel - The British Columbia Court of Appeal held that the trial judge either failed to give appropriate consideration to the son's views or she failed to adequately express her reasons for not giving more credence to them - The son's views were entitled to considerable weight - Further, the trial judge did not consider the evidence of the disruption that such a move would have on the son - See paragraphs 67 to 82 and 132 to 141.

Family Law - Topic 1895

Custody and access - Considerations on awarding custody - Changing child's residence - The parents of three children shared de facto joint custody and joint guardianship and had an equal parenting regime, but there was no formal order - The mother applied for permission to move from Vancouver to Israel with the children - A trial judge awarded the parties joint custody and joint guardianship and designated the mother's residence in Israel as the children's principal residence - The children's father appealed, arguing that the trial judge erred in rejecting his submission that the mother had ulterior reasons for moving to Israel (i.e. to thwart his relation with the children) - The British Columbia Court of Appeal held that in considering the mother's reasons for moving, the trial judge did not run afoul of the principle in Gordon v. Goertz that a consideration of the motive or reason for the move by the parent seeking to relocate was not relevant except insofar as it relates to the best interests of the children - See paragraphs 83 to 92.

Family Law - Topic 1895

Custody and access - Considerations on awarding custody - Changing child's residence - The parents of three children shared de facto joint custody and joint guardianship and had an equal parenting regime, but there was no formal order - The mother applied for permission to move from Vancouver to Israel with the children - A trial judge awarded the parties joint custody and joint guardianship and designated the mother's residence in Israel as the children's principal residence - The father of the children appealed, arguing that the trial judge misapprehended the evidence concerning the economic circumstances of the parties, both in Vancouver and in Israel - The British Columbia Court of Appeal agreed with the father - See paragraphs 93 to 106 and 111.

Family Law - Topic 1895

Custody and access - Considerations on awarding custody - Changing child's residence - [See all Family Law - Topic 1881 , Family Law - Topic 1890 and Family Law - Topic 1900 ].

Family Law - Topic 1900

Custody and access - Considerations in awarding custody - Maximum contact with each parent - The parents of three children shared de facto joint custody and joint guardianship and had an equal parenting regime, but there was no formal order - The mother applied for permission to move from Vancouver to Israel with the children - A trial judge awarded the parties joint custody and joint guardianship and designated the mother's residence in Israel as the children's principal residence - The children's father appealed, arguing that the trial judge's reasons reflected an underlying assumption that the father would follow the children to Israel and that the judge relied on that presumption in making her decision, especially when considering the maximum contact issue - The British Columbia Court of Appeal held that the trial judge allowed her underlying assumption that the father would follow the children to discount his option of shared parenting in Vancouver - The court discussed the propriety of considering what one or the other parent would do depending on the decision made by the trial judge in relation to mobility - The court commented that if the judge was going to consider the father's willingness to leave Vancouver, she should equally have considered the mother's willingness to stay in Vancouver - See paragraphs 60 to 66.

Family Law - Topic 1916

Custody and access - Appeals - Standard of review - The British Columbia Court of Appeal held that an appellate court should not overturn orders of a trial judge concerning matters of custody and access courts unless the reasons disclosed an error in principle, a significant misapprehension of the evidence or an error of law - See paragraph 38.

Family Law - Topic 1940

Custody of children - Variation of custody order - The parents of three children shared de facto joint custody and joint guardianship and had an equal parenting regime, but there was no formal order - The mother applied for permission to move from Vancouver to Israel with the children - A trial judge, treating the application as an initial application such that a change of circumstances was not required, granted permission, awarded the parties joint custody and joint guardianship and designated the mother's residence in Israel as the children's principal residence - The children's father appealed, arguing the trial judge erred in treating the mother's application as an initial application - The British Columbia Court of Appeal agreed that the mother's application was an original application and not an application to vary an order for custody or access - See paragraphs 40 to 53.

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. 3].

S.S.L. v. J.W.W. (2010), 284 B.C.A.C. 27; 481 W.A.C. 27; 2010 BCCA 55, refd to. [para. 16].

Hejzlar v. Mitchell-Hejzlar (2011), 304 B.C.A.C. 305; 513 W.A.C. 305; 2011 BCCA 230, refd to. [para. 18].

Nunweiler v. Nunweiler (2000), 137 B.C.A.C. 1; 223 W.A.C. 1; 2000 BCCA 300, refd to. [para. 18].

Falvai v. Falvai (2008), 263 B.C.A.C. 74; 443 W.A.C. 74; 2008 BCCA 503, refd to. [para. 18].

Jens v. Jens (2008), 260 B.C.A.C. 185; 439 W.A.C. 185; 300 D.L.R.(4th) 136; 2008 BCCA 392, refd to. [para. 30].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 30].

Luney v. Luney (2007), 248 B.C.A.C. 267; 412 W.A.C. 267; 74 B.C.L.R.(4th) 203; 2007 BCCA 567, leave to appeal denied (2008), 386 N.R. 399; 271 B.C.A.C. 319; 458 W.A.C. 319 (S.C.C.), refd to. [para. 31].

Shabaga v. Shabaga (1992), 75 B.C.L.R.(2d) 128 (C.A.), refd to. [para. 31].

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161; 2001 SCC 60, refd to. [para. 38].

Hickey v. Hickey, [1999] 2 S.C.R. 518; 240 N.R. 312; 138 Man.R.(2d) 40; 202 W.A.C. 40, refd to. [para. 38].

U. v. U., [2002] HCA 36, refd to. [para. 87].

R.E.Q. v. G.J.K. (2012), 319 B.C.A.C. 98; 542 W.A.C. 98; 2012 BCCA 146, refd to. [para. 155].

Counsel:

G. Stav, appellant appeared in person;

B. Ingram, for the respondent.

This appeal was heard on March 5, 2012, in Vancouver, British Columbia, before Prowse, Kirkpatrick and D. Smith, JJ.A., of the British Columbia Court of Appeal. The following decision was delivered for the court, on April 5, 2012, by Prowse, J.A.