IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120706

Docket: 45924

Registry:
Vernon

Between:

Andrew Nicholas
Hokhold

Plaintiff

And

Laurie Darlene
Gerbrandt

Defendant

Before:
The Honourable Mr. Justice Cole

Reasons for Judgment

INTRODUCTION

[1]            
This is a family law proceeding. The issues are custody, guardianship,
access, mobility, determination of income, child support, spousal support and a
name change sought for the infant Ella. Throughout these reasons I will refer
to the plaintiff Andrew Hokhold as the father and the defendant Laurie
Gerbrandt as the mother.

BACKGROUND FACTS

[2]            
The father is a dentist who practised in Fort St. James, British
Columbia until 1998, when he was involved in a motor vehicle accident after
which he was off work for approximately one year. He then moved to Armstrong,
British Columbia in 2000, where his parents live, and worked part-time as a
dentist while also working on two inventions: one was a dental chair and
equipment that greatly reduced cross-contamination; the other was a new type of
building block called “Chateau Blocks” that was designed to last for 500 years.
The work on his two inventions ceased in 2004 and did not recommence until
approximately 2008. The father was also involved in two political parties which
he founded: the Advocational International Democratic Party (AID) and the B.C. Patriot
Party.

[3]            
The mother is a pharmacist who completed her degree in Saskatchewan
around April 1998 and then moved to Armstrong where she lived with a man by the
name of Larry Chudyk.

[4]            
The parties met in September of 2000 and discussed how they both wanted
to get married and have children. They commenced a relationship in 2005 and
started to live together at the father’s home, L&A Crossroads near
Armstrong in October of 2006. In June of 2007 the mother moved out and took her
horses and animals back to her parents’ residence in Swift Current,
Saskatchewan, where they own substantial farm property and where she was raised.

[5]            
In July of 2007 the mother came back to British Columbia. The parties
moved onto Predator Ridge which is a golf course on the south side of the City
of Vernon at a place called The Lodge in October 2007.

[6]            
In September of 2006, the mother had had a miscarriage and in April of
2007, when she got pregnant again, the pregnancy was deemed to be a high risk
pregnancy. Consequently on May 31, 2007 she stopped working as a pharmacist and
has not worked since save and except for minor part-time work for the father’s
dental company. In the spring of 2008 the parties moved into a residence at
Silver Star Mountain which is a ski area northeast of Vernon. That pattern of
staying at Silver Star in the off season and then moving to Predator Ridge for their
off season continued.

[7]            
From January of 2009 to February of 2010, the father said that he stayed
at the mother’s residence for 80-90% of the time. He kept toiletries and
clothing at the residence throughout the relationship, but would leave when the
relationship was strained and stay at L&A Crossroads and then return when the
parties were once again getting along.

[8]            
The parties’ eldest child Will was born on January 25, 2008. After the
birth of Will, the mother considered going back to work part-time but the
father, according to the mother, did not want her to return to work. He wanted
her to be a full-time mother and they entered into a confidentiality agreement
where she would do some work for his company. She was on maternity leave and
her only other source of income since the birth of Will had been unemployment
insurance for a period of one year.

[9]            
In September 2008 the father commenced putting money into a chequing
account in the name of Will and then had that money transferred to the mother. This
was set up because the father did not want to appear to be supporting the
mother. From September 30, 2008 to February 17, 2010, he deposited various
amounts of up to $3,000 per month for a total of $38,750 or an average of
$2,279 per month.

[10]        
Beginning in April of 2007 when the mother first realized that she was
pregnant, she had kept a diary for her unborn child (the “Baby Diary”). In the
early part of April 2009, the father accessed the Baby Diary without the
mother’s consent. In that diary she accused the father of being abusive and
dangerous, to which he took exception. He then left the premises at her request
and they separated for approximately one month.

[11]        
Shortly after, the mother travelled to Saskatchewan to visit her parents.
The father drove them to the airport and then filed an application in the
Provincial Court of British Columbia dated April 30, 2009, asking for an order
for custody, guardianship, and access to Will. This was a without notice
application. The father said he was concerned because the mother had indicated
numerous times in the past that she was going to take Will back to Saskatchewan
permanently.

[12]        
In the father’s affidavit sworn May 7, 2009, he related his fears that
the mother would move back to Swift Current without notice to himself and that
she might commence proceedings in Swift Current with respect to custody. He
stated at para. 16:

I swear this Affidavit to support
my application for custody, guardianship and access to Will and that all
outstanding matters between Will, Laurie and myself be dealt with in the Vernon
Registry.

[13]        
What the father failed to disclose was that he had driven the mother and
Will to the airport and that he had sent flowers to her stating “Love to have
you at home, love Andrew”. He failed to disclose that he trusted that she would
return to British Columbia and that there were in fact arrangements for him to
pick her up at the airport. I am satisfied that the failure of the father to
make full and frank disclosure led to this ex parte order where it was
ordered that the Provincial Court had jurisdiction over their son Will. Unfortunately,
the father never arranged to have this affidavit, notice of motion or order
served on the mother until the beginning of March 2010, when he obtained a
further ex parte order in the Supreme Court of British Columbia ordering
the mother to return Will to Vernon, British Columbia, by Saturday, March 6,
2010; in default the RCMP were to locate and deliver the child back to the
father.

[14]        
I am satisfied that the father’s two ex parte applications have
contributed significantly to the breakdown and the trust between the mother and
the father.

[15]        
Leading up to the order of March of 2010, the parties had a disagreement.
The father along with Mrs. Bird, a long-time platonic friend of his, had
gone to Toronto with respect to the AID Party building a school that the
Chateau Blocks were going to be a part of. Upon his return to their residence
he discovered a note dated February 25, 2010 from the mother, who was at this
time pregnant with their second child, advising him that she had left for
Saskatchewan with Will to:

…be safe during this pregnancy due to your abusive attitudes
and treatment. I pray that you will seek the mental health care that you need.

Will and I are safe and well with
our family. I am resting and grieving. Please do not try to contact me tonight.
I will call you Friday evening around 6 p.m. your time.

[16]        
A second note requested that he remove his personal belongings from
their home and leave the key for the garage door opener. A third note dated the
same day said that she resigned from her clinical/pharmacy position with Dr. Andrew
N. Hokhold Inc.

[17]        
On February 26, 2010 the mother called the father. He claimed that he
had not read the note, but admitted that he assumed that she was with her
parents in Swift Current because of the phone number. He further said that he
did not know her phone number despite the evidence that she went to Swift
Current 3-4 times per year and that he frequently called her parents’ home as
that is where she always stayed. This evidence of the father lacks believability
in this regard as does his justification for obtaining the second ex parte
order.

[18]        
Shortly afterwards, on June 24, 2010, the mother gave birth to the
parties’ second child. The circumstances surrounding the birth reflect poorly
on the character of the mother. Prior to Ella’s birth, there were two
applications outstanding. One was a request that Will be placed in the father’s
care upon the mother entering the hospital or going into labour, and if the
mother were to have a caesarean section that he be in the care of the father
during the time she was in hospital. That application was heard June 8. Judgment
was reserved until June 30.

[19]        
The mother had filed an affidavit stating she agreed that if she went
into the hospital with a c-section, she would have no difficulty with Will
being placed in his father’s care while she was hospitalized, providing he was
not working.

[20]        
One week before Ella’s birth, she had advised Dr. Upton, her
obstetrician, that she wished to be induced. She did not advise the father of
this decision.

[21]        
The father had also filed a notice of motion on June 17, 2010, asking
that he be appointed guardian of their soon to be born child, that the mother
complete the Lifebank Corp. registration form, and that upon commencement of
the labour she contact him. The father was to be advised of any immediate
health treatment and be allowed to hold and comfort the newborn child and take
photographs within one hour of the birth. This notice of motion upset the
mother, who, on cross-exanimation, admitted that she changed her mind with
respect to having the father look after Will if she had a c-section because of its
receipt.

[22]        
The mother had Will taken to the transition house by her mother who
looked after him at the transition house save and except for the two-hour
period during which time the mother gave birth to Ella. Upon Ella being born, the
mother phoned the father and did not tell him of the birth of Ella, only telling
him that Will was sleeping and he could not exercise his planned access.

[23]        
In addition to this, prior to the birth of Ella, the mother arranged
with the RCMP and the transition house to ensure that there were security arrangements
in place during the birth of Ella. These included instructions that if the
father called or attended the hospital he was not to be advised of the birth of
his daughter and not to be advised that the mother was even in the hospital. The
hospital security had been alerted that the father was not allowed to attend
the hospital room. The Vernon Jubilee Hospital records indicate that “There is
an alert on the chart for no access from multiple other family members
including the biological father.”

[24]        
The RCMP records detailing contact with the mother concerning the birth
of her child state as follows:  “She is due to have her baby this month and the
hospital is aware of her situation. Andrew’s apparent request to be present
during the birth and his wanting his girlfriend, Beverly Bird to be there in
the room videotaping the birth.”

[25]        
Under cross-examination however, the mother confirmed that the father
had not requested to be in the delivery room, had not requested to videotape
the birth of Ella, and had not requested Beverly Bird to attend the hospital.

[26]        
When asked why she did not want the father in the hospital, her answer
was that he was unpredictable. This is the same answer she has given on a
number of occasions but she has never provided any evidence that he is in fact
unpredictable.

[27]        
This is only one example of the extent that the mother will go to in order
to deprive the father of access to his child.

[28]        
It was not until receipt of correspondence from the mother’s lawyer
stating that he could visit his baby daughter the following day, providing he
was alone, that the father received news of the birth. The mother’s solicitor
also forwarded a further letter inviting the father and his parents to visit
Ella at the mother’s residence. The father never replied to either of those
messages and never saw his child until access was ordered in September of 2010.
The father’s failure to visit his child or make an application to court was not
in the best interests of the Ella.

[29]        
Since being ordered to return Will to British Columbia, the parties have
been consumed with this litigation. The father has sworn over 30 affidavits and
made 18 applications with 3 appeals, one of which was abandoned. The mother has
sworn over 26 affidavits. The parties have fought over every conceivable issue.
Gradually the father has been having more frequent access to the children, now
having Will from Sunday to Tuesday and Ella for day access, twice a week. The
mother is still unemployed and wants to return to Swift Current to be with her
family who can provide emotional and financial support.

SECTION 15 REPORT

[30]        
In order to attempt to understand how these well educated, intelligent
parents have ended up becoming consumed with this litigation, it is helpful to
review the Section 15 report prepared by Dr. Waterman entitled
“Psychological Assessment Report”.

[31]        
Both the parties were subject to psychological testing with Dr. Waterman.

[32]        
The Minnesota Multiphasic Personality Inventory – 2 (MMPI-2), which is
an objective personality test designed to detect a number of major patterns of
personality and emotional disorder, was used. On that test the mother “made a
strong effort to present herself in a very positive manner and appears to have
been rather defensive in the way that she responded to the test items.”  It is noted
that she “sees the world as a threatening place” and “herself as being unjustly
blamed for problems created by others and does not feel that she is being
treated fairly.”  With respect to child custody concerns, Dr. Waterman
states:

…there could be potential
problems in parenting because of some of Laurie’s personality characteristics.
Her lack of trust and suspiciousness toward others may at time make it
difficult for her to hear constructive feedback. At times, she may become angry
and difficult in terms of cooperating with others regarding herself or her
child. Her results suggest that she may be overly moralistic and may blame
others for what happens to her or her children. Because she does not feel that
she is being treated fairly by the world, she may express angry feelings
inappropriately at times. As long as everything is going well in this woman’s
life, she will probably parent quite effectively. However, if subjected to long
periods of high stress, she could begin to deteriorate and behave in ways that
are less than acceptable.

[33]        
The father’s test produced a “marginal clinical profile because he
responded in such a defensive manner.”  Dr. Waterman found that:

He tries to present himself as not having any personal
problems. Such individuals can be rather intolerant of the weaknesses of others
and may find it difficult to accept the unconventional beliefs of others. Such
individuals typically lack insight and are unwilling to see any of their
problems as being psychologically based. His results should be interpreted with
caution because such individuals generally produce profiles that tend to
underestimate any problems they may be having.

…

In terms of child custody
considerations, Andrew’s tendency to deny any personal problems makes
conclusions difficult. As a parent, he may tend to deny or ignore problems
rather than facing them directly when they occur. His tendency to see himself
and others in an overly favorable manner may make it difficult for him to
accept that his child is experiencing difficulties. Because he lacks insight
into his own functioning, he will probably find it difficult to see how he is
contributing to a situation, if it should occur. Also, his need to be in
control in all situations may model a maladaptive manner of dealing with the
difficulties of his child.

[34]        
The Millon Clinical Multiaxial Inventory – III (MCMI-III) test “assesses
relatively specific personality characteristics including both
characterological and emotional factors.”

[35]        
With respect to the mother, she:

…made a strong effort to
present herself in a socially acceptable manner. Her results suggest that she
resisted admitting to any personal shortcomings or emotional problems. In spite
of this, Laurie did obtain some significant results.

[36]        
In terms or parenting the author wrote:

…their strong need to be seen
by others as being acceptable may influence their parenting decisions. Because
of their own insecurity, it may be difficult for such individuals to establish
firm boundaries and to have consistent consequences for their child. These
individuals’ strong need for approval and positive feedback will result in
their giving in to their child’s wishes more than is good for the child. Due to
their strong need to always appear in control of their life, they may model
dysfunctional ways of dealing with situations that could be dealt with in a
more assertive or confrontational manner. Also, as their child get[s] older,
begins to demand more independence and act out in various ways, such
individuals can have difficulty dealing effectively with normal developmental
problems.

[37]        
With respect to the father, it was noted that he:

…made quite an extreme attempt to present himself in the
best possible manner…. It should be noted that Andrew failed to obtain any
score on fourteen of the twenty-four clinical scales. Individuals who respond
in this manner may see psychological problems as a sign or moral weakness. It
typically reflects a concern about being seen unfavourably by others or a
suspiciousness of the motives behind the assessment. It should be noted that
when individuals show a high level of denial, repression and an unwillingness
to share information about themselves, certain aspects of their personality
functioning may not be identified.

… While at time he may experience frustration or anger, he
seldom expresses it in case he loses emotional control…. While he is usually
successful in repressing any negativity or anger, occasionally resentment will
break through. If it does, he will usually direct it toward himself to avoid
negative feedback. Because it is important to Andrew that he be seen by others
in a positive manner, he must maintain a certain level of control at all times.
As a result, he may experience a moderate level of physical symptoms and
discomfort, particularly if exposed to longer periods of high stress.

In terms of parenting
considerations, this man’s high need to be in control may cause problems,
particularly as his child gets older. Because of his lack of insight, he may
not be able to see or understand how he may be contributing to difficulties
that his child may experience from time to time. Because he finds it difficult
to deal with upsetting emotions or problematic relationships, he may deal with
situations involving his child in a manner that would not be beneficial to the
child. If exposed to higher levels of stress for prolonged periods of time, he
may also model dysfunctional ways of dealing with stress rather than being more
open with his emotions.

[38]        
It was clear to Dr. Waterman that Will and his mother “have a very
close and loving relationship” and that she “appeared to be a very patient,
caring and emotionally supportive mother who obviously loved her children but
was able to set limits when necessary”. It is also noted in the report that the
father describes the mother as a “triple A ‑ triple plus mom”, but that
he “does question [her] thought process.”

[39]        
With respect to the father, Dr. Waterman noted:

Andrew demonstrated good parenting skills throughout the home
assessment. The children responded well to him despite not having had a lot of
contact with him.

…

Based on what was observed
regarding the children’s interactions with their father, there were no concerns
about Andrew’s ability to parent his children.

[40]        
In his recommendations, Dr. Waterman states:

In considering possible recommendations resulting from this
assessment, two major area[s] of concern were prominent for this Assessor after
of course, what was in the best interests of the children. The first major area
of concern was the amount of litigation material that was produced and needed
to be reviewed. The amount of material is significant, since it is an
indication of the level of animosity in this situation, which can definitely
impact the children. The majority of the material was produced by Andrew
Hokhold. Even ignoring the last material that was sent to the Assessor for
review, which the Court ruled was not to be reviewed because it arrived after a
certain date, the amount of material was worthwhile noting. In the over
twenty-nine years that this Assessor has been conducting Section 15 assessments,
he has never been asked to review the amount of material that he reviewed
during the course of this assessment. This is particularly relevant in this
case because both parties were given the same instructions at the beginning of
the assessment, which was that a certain amount of material was helpful but
beyond a certain point, further material would probably not add anything to the
assessment process and in fact, may be detrimental in some way to the parent’s
position. The amount of material produced is also related to the second major
area of concern that was identified, which was the amount of money that was
being spent on this litigation process which could impact the economic security
of the children.

From the information that was
gathered during the course of this assessment, it appeared that Andrew Hokhold
has far more money available to him to pursue litigation than does Laurie
Gerbrandt. Laurie even stated at one point that she had been told by Andrew
that he would keep taking her back to Court until she was broke.

[41]        
With respect to the recommendations, Dr. Waterman stated this:

1)         The degree of
mistrust, hostility, anger and fear that exists between these two parents is
producing a highly dysfunctional environment for these two children. Many
examples of these concerns have been identified above in this report and will
not be repeated here. However, the consequence is that the possibility of a
joint custody arrangement and cooperative co-parenting does not seem to be even
a remote possibility for these two parents. Therefore, it is recommended that
sole custody be granted to Laurie Gerbrandt. While neither of these parents has
consistently demonstrated appropriate parenting that puts the children’s needs
first, Laurie, for the most part has been more consistent in terms of putting
the children’s needs ahead of her own.

[42]        
In recommending that the mother be given custody, Dr. Waterman
acknowledged the dangers that arise where a custodial parent feels high levels
of hostility towards the non-custodial parent. For example, on February 20,
2010, the mother wrote in her diary: “It would be a blessing if I never had to
see or speak to him again. It would be best if the children never knew the sick
and twisted man who fathered them.”

[43]        
The mother has also admitted to having a “rage” against the father and
referred to speaking to him with “hatred in her eyes”.

[44]        
Dr. Waterman observed that this type of hostility on the part of
the custodial parent towards the non-custodial parent can create a barrier to a
full and meaningful relationship between the child and the access parent.

[45]        
Dr. Waterman was asked:

— if one parent has in their
mind it would be best if the children never knew the sick and twisted man who
fathered them, that’s a serious matter for you as an assessor…

[46]        
Dr. Waterman said that with respect to parents that he does Section
15 reports for:

It’s common that both parents —
one or both parents hate each other. It’s common that one or both parents
believe the other parent is deviant, psychologically disturbed, not fit to
parent the children. So the short answer is, yes, it’s a concern, but it’s —
it’s not an uncommon concern in the assessments that I — I do.

[47]        
Dr. Waterman was also asked if such a belief could be a very real
and significant obstacle to the children having a meaningful relationship with
the access parent and he said:

Yes, if it continues. Typically
what happens is that over time as things get resolved, those beliefs are let
go, and there’s a lot more cooperation between the parents.

[48]        
When asked whether or not a custodial parent with those beliefs often
finds ways to deny access, Dr. Waterman answered:

Yes. Usually one or two things
happen. The parent either tries to — or figures out ways of denying access or
they begin alienating [the children] from the other parent.

[49]        
When asked if these types of beliefs held by the custodial parent would intensify
if the custodial parent moved a great distance from the access parent, his
answer was:

If that belief persisted, yes,
that could be a — a very big stumbling block to maintaining a relationship
with the other parent.

[50]        
Both parties have a “strong” or “high” need to be in control. As
explained by Dr. Waterman, in his view, typical of the Section 15
assessments he has performed, the mother’s center of control is the children
while the father’s center of control is financial. That, in my view, is one of
the core problems between the parents and is one of the contributing factors to
this dysfunctional environment that they have created.

THE FATHER’S FINANCIAL CENTER OF CONTROL

[51]        
The father is financially well off and is capable of billing up to
$10,000 per day as a dentist. He seems to have access to almost unlimited
amounts of money as his sister also loans him substantial sums which he puts
into his limited company as a shareholders loan and then withdraws tax-free. He
only declares an income, however, of slightly under $12,000 per year, declaring
significant expenses related to the inventions he is working on.

[52]        
The father is very litigious and uses his considerable resources to this
end. Glenna Waters, a lifetime friend of the mother, met the father in August
of 2008 while the parties were living at Silver Star. Ms. Waters says that
after dinner that night, the father excused himself as he had to work on a
court case and he told Ms. Waters that he liked to represent himself in
court as it allowed him to keep going in and going in, keeping his opponents in
court until they ran out of money and could not continue with the case. He said
that he was better than most lawyers and judges liked him because of his
vocabulary and his preparedness. Although the father denied making that
statement, saying it was ridiculous, I accept the evidence of Ms. Waters. I
found her to be credible and sincere.

[53]        
The father has been involved with numerous lawsuits, the majority of
them being collections for his dental practice, and he has admitted that he has
represented himself either for entire cases or for substantial portions of
cases. Certainly, the father is using his knowledge of the court system and his
financial resources to fuel this litigation with the mother of his children.

[54]        
When the mother asked him to attend mediation in order to resolve their
outstanding issues, he agreed to do so but only if she paid all the costs. He
was asked why he would not pay half the costs and his reply was that he knew
with lawyers involved it would not be productive. In addition to the over 30
affidavits he has filed in these proceedings, he has also provided 22 new
affidavits either prepared by himself or Mrs. Bird that he forwarded to Dr. Waterman
even though there was an order dated October 30, 2011 ordering that he
“finalize all communication with Dr. Waterman on or before September 16,
2011”. He said that he appealed the order and did not know that he could not
continue to contact Dr. Waterman after September 16. The father, however, does
not indicate where he got his understanding that he could continue to contact Dr. Waterman.

[55]        
In his examination for discovery of February 6, 2012, he was asked at
question 123:

Q.:       You are aware there was an order in place that
you had to provide him with all your material by the 16th of September, 2011?

A.         That’s correct.

[56]        
When asked if that answer was true, he said he did not know.

[57]        
In addition to the affidavits, he also provided a 69-page “personal
relationship dossier”. The affidavits and dossier were delivered to Dr. Waterman
by Mrs. Bird well after the September 16, 2011 date. Mrs. Bird flew
the documents to Nanaimo on the instructions of the father.

[58]        
I reject the suggestion that the father did not understand that he could
not continue to contact Dr. Waterman after September 16. The father had
counsel at the time who would have been well aware that the filing of an appeal
would not automatically suspend the operation of a valid order.

[59]        
Between November 30, 2010 and November 30, 2011, the father paid approximately
$250,000 in legal fees. He has also given money to the AID Party in the form of
a loan of $115,000 on November 14, 2011. This is some indication of the
financial resources that the father has and is prepared to use.

ACCESS

[60]        
As discussed in Dr. Waterman’s report, the mother’s center of
control is the children and she has used her power in this regard to withhold
access.

[61]        
The access to Will has been problematic from the very beginning. The
father would initially take Mrs. Bird with him to videotape the access
pick-ups and drop-offs. He says that he wanted a witness and video
documentation to show that neither Will nor the mother was afraid of him and
that the mother made things up. The father says that he felt he needed to take
this step because of entries in the Baby Diary and the negative things that the
mother had said about him.

[62]        
Mrs. Bird’s attendance as a witness and operator of the video
camera was problematic because the father knew that the mother did not like her,
feeling that Mrs. Bird had consistently interfered with their relationship.
The mother said that the video invaded her privacy, but she also videotaped the
father on some occasions. The father would, I am satisfied, also frequently
surreptitiously audiotape conversations he had with the mother and between the
mother and Will. This audio and videotaping was done by the father in order to
manufacture evidence, setting up situations that would put him in the best
light or trying to trap the mother into making admissions.

[63]        
On March 9, 2010, upon the father’s application, there was an order that
he have interim access for the following two months at specified dates and
times with this pattern of access to continue in the absence of a further court
order. This access was to “be personally exercised by Mr. Hokhold”.

[64]        
The father had been exercising access. He would park his car out in
front of the mother’s residence and escort his son part way to the front door.
On August 29, access was terminated by the mother because she was of the view
that this did not constitute “personally exercising access”. She agreed,
however, on cross-examination, that he was present for all pick-ups and
drop-offs of Will. She also said that she wanted to ensure that Will, who was 2
years old, did not run free in “a potentially hazardous environment” (affidavit
of mother, September 8, 2010), by which she meant the roadway running in front
of her property. However, Will had been walking down the path from his father’s
car to the door for many months prior to August 29, with no problems arising
and the mother had described the roadway in her affidavit of October 17, 2010
as “my quiet wide residential neighbourhood street”.

[65]        
The mother also said she did not want to leave the 2-month old child,
Ella, alone in the house, but it appeared that she would only be venturing to
the front door of the house or the porch, a few feet from Ella.

[66]        
The position the mother takes is that she did not deny access, but that he
denied himself access because, according to her, he chose not to come to the
door to exercise access in accordance with the terms of the order. I find the
position of the mother untenable. She refuses to accept responsibility for the
fact that she was the cause of violating the court order.

[67]        
Access to Ella was equally problematic. The father exercised access to
Ella up to November 18. Up to that time, the father had been placing Ella in a
lounge chair on the porch, knocking on the door, then stepping back, after
which the mother would pick up Ella and take her into the home. This of course
was reversed upon the child being picked up. The father wanted to keep his
distance from the mother because of the allegations she made in her Baby Diary,
her statement on May 23, 2010 at an access exchange that she did not wish to
“endanger her life” during an access exchange, and the mother’s allegation that
the father lurched at her during an exchange on March 28, 2010. The mother’s
allegation with respect to the lurch is completely without merit as video taken
from the incident clearly shows no lurch.

[68]        
The mother refused access because she wanted a hand-to-hand exchange of
Ella. The father had suggested that Ella be returned in a car seat, as the
weather was getting cooler, and that she could take the car seat inside, remove
Ella, and return the car seat outside of the door.

[69]        
I am satisfied that the conduct of the mother was unreasonable. This was
not a life threatening situation or anything close to it and if she wanted to
change the routine that had been in place for the pick-up and drop-off, she
should have gone to court and made the application instead of unilaterally
imposing her views on the father and denying access.

[70]        
Access was also denied from September 9, 2011 to October 17, 2011, as a
result of a scratch and bruising on Will’s arm which occurred as a result of interaction
with his dog Shadow while in the care of the father. It is clear from the
photographs that there was a dog bite imprint on the upper arm and scratches on
Will’s lower arm, however, there was no blood and it did not appear to be anything
more than a playful incident.

[71]        
On September 6, 2011, the father sent an email to the mother which
included a description of how the dog and Will interacted that caused the bite
marks on Will’s arm. The mother, on September 11, forwarded an email that
stated:

Andrew,

From the information I have to date, there has not been
satisfactory resolution to the safety issue of your German Shepard in contact
with the children. There will be no access to Will tomorrow, Sunday, Sept 11th.
Access to the children can occur once you have dealt with the safety issue of
your dog.

To spare the children from more conflict, we will not be home
tomorrow morning.

Laurie

[72]        
On September 12, 2011, the father sent an email which stated in part:

As of today, Will’s Shadow will be segregated from Will and
our daughter while they are both in my care, individual or collectively, until
this matter is resolved within this judicial process. I hope you realize that
Shadow is Will’s dog, a present bought for him by my sister. He knows it to be
his dog and he talks about Shadow to his friends. He has said numerous times
that he loves Shadow and Will greets him every morning when Will is with me.

Please advise me today whether or not this is acceptable to you
and whether you will give me permission to have access to both of my children
again.

…

I love them both very much and I miss being with them.

Andrew

[73]        
On September 13, 2011, the father forwarded another email requesting
clarification. However, the mother continued to deny access. Her position was
that she wanted the dog destroyed.

[74]        
On October 18, 2011, the Court eventually ordered that any time the
children are with the father in the presence of the dog Shadow, the dog “shall
be on a leash with a muzzle”.

[75]        
I am satisfied that there was no valid reason to deny access to these
children under these circumstances. The refusal of the mother to respond
appropriately to suggestions by the father indicates a lack of cooperation and
a failure to put the interests of the children first. The mother has been
intransigent in virtually all matters relating to access, denying the father’s
requests for makeup access to make up for the time he lost when she had taken
the children to Swift Current, and even refusing to allow Will to attend his
paternal grandfather’s birthday.

[76]        
During these three periods of time that the father was denied access, he
would attend with a witness at the scheduled pick-up time and wait there even
though it was obvious that he was not going to be seeing the children. He said
he was doing this so that he could show that he cared for his children. That
may be true. However, if he really cared about the welfare of his children he
should have made an application to court immediately to ensure that he had
continual access with these children. The father’s conduct was not in the best
interests of the children either.

FURTHER LACK OF COOPERATION BETWEEN THE PARTIES

[77]        
The parties’ desire to score points off one another at the expense of
their children’s best interests seemed to become almost all-consuming as the
litigation drew on.

[78]        
One example is the parties’ failure to cooperate with respect to medical
appointments. The father made an appointment for Will to see an urologist and
advised the mother in an email on January 5, 2012, asking if she wished to
attend. The mother responded on February 1, 2012, stating:

I am taking Will to his urology
appointment tomorrow (February 2nd) to provide Will with comfort and
reassurance and to provide the urologist with a complete history.

[79]        
This was a date that the father was working, and of course, was unable
to attend.

[80]        
On January 24, 2012, the father emailed the mother discussing Will’s eye
exam and the need to pick out eyeglass frames and inquired when they could meet
together to do so. The mother replied by email dated January 29, 2012, which
stated:  “Will’s glasses have been ordered.”

[81]        
The father was reluctant to agree to Ella’s immunization schedule. He
wanted more information and met with the representative of the health unit on
August 11, 2011. He arranged for the immunization to take place on August 22
and on October 3 for Will to have his full and second dose of MMR vaccination. The
father indicated in his email that he would “like to do this for Will”. The
mother responded on August 23 stating:  “I rescheduled the dates. Will had his
first one today and was scheduled for a second immunization September 27.”

[82]        
This lack of communication and unwillingness to cooperate is most
unfortunate and not in the best interests of the children.

[83]        
Another example involved an allegation that Will had been told by his
paternal grandfather to urinate on his bed in his mother’s house and on his
mother’s floor. The mother did not herself believe that the paternal
grandfather told Will to urinate on the floor and in the bed etc., but she took
Will to Dr. Brown, the child’s doctor, and in the presence of Will related
the story about purposely peeing. The following day, the mother returned with
Will to Dr. Brown at the request of her lawyer and Will told Dr. Brown
about the peeing incident. The doctor then noted in her clinical records what
took place and provided that to the wife’s lawyer who then used that in her
affidavit to oppose expanded access.

[84]        
Paragraph 5 of the mother’s affidavit of January 10, 2012 states:  “The
Court should know the following regarding Will”. She then relates the peeing
incident and included the notes from the doctor.

[85]        
This conduct by the mother is deplorable. She told the Court that she
did not believe that the grandfather made these comments yet put it in an
affidavit in order to oppose expanded access.

[86]        
In still another example of this type of behaviour, after the birth of
Ella, the father attended at the mother’s residence at Predator Ridge and while
she was downstairs feeding Ella, the father observed Will playing outside on
the grass with his tricycle. There was a fenceless rock cliff along the
boundary of the property. The father said he was shocked when he saw this but
did nothing about it. When asked why he did not say something to the mother he
said because he was “frozen”. He furthermore stated that he did not say
anything to the mother because he is “damned if he does and damned if he
doesn’t”. What the father did instead was return later on to the premises with Mrs. Bird
to take pictures and measure the stone wall to show that this was in fact a
dangerous situation. I am satisfied that these actions of his were founded in a
desire to score points off the mother rather than in genuine concern for his
son’s safety.

[87]        
On another occasion when Ella appeared to have some faint bruising on
her thighs, the father took her to his doctor who performed a physical
examination and found nothing wrong with the child. The father nonetheless
subsequently returned to the doctor’s office along with Ella and within a
period of five days had her undergo three complete physical examinations. It was
not in the best interests of the child to have these physical examinations when
there was clearly nothing wrong.

[88]        
The mother, on several occasions, attempted to get the father into
trouble with various authorities. After the mother was required to return with
Will to British Columbia in March 2010, she went to the transition house and
the transition house with her agreement put her in contact with the RCMP. On
April 15, 2010, the mother provided a detailed history of their relationship
and had a two-hour recorded interview with the RCMP. During this interview she
discussed the father, his political dealings, and business affairs and
categorized those matters as “white collar crime”. On cross-examination the
mother admitted that she asked of the RCMP officer, “Is any of this white
collar stuff capable of getting me out of here?”  She agreed that “out of here”
referred to being able to get out of Vernon.

[89]        
The mother also told the RCMP about the father threatening her family
with litigation, saying he had access to millions of dollars, that he would
have no trouble killing someone, that he said that she is “replaceable”, that
he refuses to seek mental help, that he has a history of killing cats by
trapping them, that his ex partner fled to Germany 15 years ago and he still
seeks her out and that he wears sunglasses with a video camera attached. She
also told the RCMP that she feared that the father would sedate her and perform
a c-section to remove her child.

[90]        
All of the above has been denied by the father.

[91]        
The mother has also admitted that she has contacted Canada Revenue
Agency and the Insurance Corporation of British Columbia telling the latter
that she believes the father was working and was fraudulent with respect to his
claim regarding his motor vehicle accident. She told Canada Revenue Agency about
the father’s political party and his business dealings, and referred to his
mother Clara, his father Frank, his sister who works for Revenue Canada and
Beverly Bird.

[92]        
When asked why she reported the father to the RCMP, Revenue Canada, and
ICBC, she said that she was attempting to protect herself so at least the
children would have a mother.

[93]        
I am satisfied that she contacted these institutions because she wanted
to put pressure on the father and that if in fact he had done something wrong,
that would make her custody case somewhat easier to win. There is no evidence
whatsoever that by reporting these incidents to the various authorities, she
was protecting herself.

CUSTODY AND MOBILITY

[94]        
Section 24 of the Family Relations Act, R.S.B.C. 1996, c. 128,
sets out the applicable law with respect to the issues of custody, access and
guardianship:

24 (1) When making, varying or rescinding an order under this
Part, a court must give paramount consideration to the best interests of the
child and, in assessing those interests, must consider the following factors
and give emphasis to each factor according to the child’s needs and
circumstances:

(a) the health and emotional well
being of the child including any special needs for care and treatment;

(b) if appropriate, the views of
the child;

(c) the love, affection and similar
ties that exist between the child and other persons;

(d) education and training for the
child;

(e) the capacity of each person to
whom guardianship, custody or access rights and duties may be granted to
exercise those rights and duties adequately.

(1.1) The references to "other persons" in
subsection (1) (c) and to "each person" in subsection (1) (e) include
parents, grandparents, other relatives of the child and persons who are not
relatives of the child.

(2) If the guardianship of the estate of a child is at issue,
a court must consider as an additional factor the material well being of the
child.

(3) If the conduct of a person does not substantially affect
a factor set out in subsection (1) or (2), the court must not consider that
conduct in a proceeding respecting an order under this Part.

(4) If under subsection (3) the
conduct of a person may be considered by a court, the court must consider the
conduct only to the extent that the conduct affects a factor set out in
subsection (1) or (2).

[95]        
This issue of mobility was discussed in the Supreme Court of Canada
decision of Gordon v. Goertz, [1996] 2 S.C.R. 27, where the Court stated
at pp. 27‑28:

49        The law can be summarized as follows:

1.         The
parent applying for a change in the custody or access order must meet the
threshold requirement of demonstrating a material change in the circumstances
affecting the child.

2.         If the
threshold is met, the judge on the application must embark on a fresh inquiry
into what is in the best interests of the child, having regard to all the
relevant circumstances relating to the child’s needs and the ability of the
respective parents to satisfy them.

3.         This
inquiry is based on the findings of the judge who made the previous order and
evidence of the new circumstances.

4.         The
inquiry does not begin with a legal presumption in favour of the custodial
parent, although the custodial parent’s views are entitled to great respect.

5.         Each
case turns on its own unique circumstances. The only issue is the best interest
of the child in the particular circumstances of the case.

6.         The
focus is on the best interests of the child, not the interests and rights of
the parents.

7.         More
particularly the judge should consider, inter alia:

(a)        the
existing custody arrangement and relationship between the child and the custodial
parent;

(b)        the
existing access arrangement and the relationship between the child and the
access parent;

(c)        the
desirability of maximizing contact between  the child and both parents;

(d)        the
views of the child;

(e)        the
custodial parent’s reason for moving, only in the exceptional case where it is
relevant to that parent’s ability to meet the needs of the child;

(f)         disruption
to the child of a change in custody;

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

50        In the end, the
importance of the child remaining with the parent to whose custody it has
become accustomed in the new location must be weighed against the continuance
of full contact with the child’s access parent, its extended family and its
community. The ultimate question in every case is this:  what is in the best
interests of the child in all the circumstances, old as well as new?

[96]        
Custody here has not been determined as there are only interim orders and
consequently there is no requirement to prove such a change in circumstances
when the application relates to an interim order (see Woods v. Woods, 2012
BCCA 312 and Javid v. Kurytnik, 2006 BCCA 565).

[97]        
A comprehensive review of mobility cases is set out in the decision of McArthur
v. Brown, 2008 BCSC 1061, paras. 112-138. I do not intend to reproduce
that lengthy and learned analysis. I will refer to a few of the most recent
decisions of our Court of Appeal.

[98]        
Our Court of Appeal in S.S.L. v. J.W.W., 2010 BCCA 55 heard an
appeal concerning the application of a mother to move to London, Ontario, where
Huddart J.A. noted at para. 21:

[21]      The point of departure in Canada for any parental
mobility case must be the Supreme Court’s decision in Gordon. In Nunweiler,
this Court was clear that the approach set down in Gordon to a custodial
parent’s variation application was to be taken, insofar as applicable, to an
original application regarding children whose parenting they had been sharing.

[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.

[99]        
In R.E.Q. v. G.J.K., 2012 BCCA 146, the mother wished to move
from Maple Ridge to Calgary with two children, aged 14 and 9. Newbury J.A.
stated at para. 46:

The Court in Falvai also
observed that the approach suggested in Nunweiler did not create a
two-step analysis, or change the conventional approach to determining custody
“in an initial application, where there is no pre-existing determination that
the relocating parent is the one best suited to meet the child’s needs”. The
Court advocated a “balancing of all relevant factors, including a parent’s
proposed move with the child to a new community”. (Para. 25.)  In the result,
it found that the restriction imposed by the lower court on the mother’s
custody of the child was not supportable by the applicable legal principles and
suggested that given the mobility of modern society, permanent conditions
restricting the movement of a custodial parent should not be imposed “except in
the rarest of cases”. (Para. 40.)

[100]    
In the case of Woods v. Woods, our Court of Appeal reiterated
that the best interests of the children are the paramount consideration and
that where a parent’s proposed relocation impacts on access to a child, this
should be considered along with other relevant factors, stating at para. 10:

Her proposed relocation is a
significant factor to be balanced with others in determining what will best
serve the interests of the children, and their ultimate place of residence will
clearly have an impact on access rights.

[101]     The
present custodial arrangements allow for access when the father is not working,
although access to Ella has not been as frequent and there has not been
overnight access save and except for Christmas. The relationship between the
parents and their children is very good with the children having, I am
satisfied, a strong attachment to both parents considering their age.

[102]     There is
always a need to maximize the contact between the children and their parents
and because of the young age of these children, frequent access is far more
important at this stage of their lives.

[103]     The mother
has been the primary caregiver, both parties have a close and loving
relationship with their children, and the father describes the mother as being
an excellent parent.

[104]     The
children have an extended family in Vernon as the father has many friends that
participate in the lives of these two children, with the father’s parents
living nearby in Armstrong. The mother has a large family in Swift Current that
the children have seen regularly.

[105]     The views
of the mother are deserving of a great deal of respect and she wishes to move
to Swift Current because her family there offers a support system. Mrs. Gerbrandt
senior gave evidence that her family would assist her daughter in obtaining a
mortgage if she wishes to buy or build a home in Swift Current but says that
she would not assist her if she wishes to purchase a home in Vernon because she
says the prices are too high. She offers, however, no evidence whatsoever to
substantiate the difference, if any, in the price of real estate between the
two communities.

[106]     Further, after
the mother commenced a relationship with the father she told Vernon Spetifore,
a long-time friend of the father, that she was estranged from her family in
Saskatchewan and did not want to go back or have anything to do with them
because they would not give her money to purchase Mr. Chudyk’s interest in
the Armstrong property that they jointly owned. The mother does not deny this
allegation but says that they have patched up their differences. I do not place
a great deal of weight on the fact that the mother’s family will provide her
with financial support.

[107]     I accept
the fact that the mother does have a large extended family including cousins, a
brother, a sister-in-law, and parents, but she has only one non-family friend
in Swift Current and that is Kay Waters, who was so elderly and frail that she
could not attend the trial in Vernon.

[108]     At trial,
the mother said that she had no friends in the Okanagan but in her affidavit
sworn March 16, 2010, she refers to Kelly Gagnon as someone who “was and is a
close friend and a person with whom I had a wonderful working relationship”,
admitting that that statement was true.

[109]     The mother
has also made no attempt whatsoever to determine if she can qualify to register
as a pharmacist in Saskatchewan or how long such qualification would take.

[110]     I am
satisfied that the primary reason that the mother wishes to move to
Saskatchewan is to deny access to the father. There have been three occasions where
she denied court ordered access and there are multiple examples of her failing
to cooperate with the father with respect to changing access.

[111]     The extent
to which the mother has gone in involving the RCMP, Revenue Canada and ICBC
indicates the extent to which she will go to get the upper hand in this
litigation. The extreme measures that the mother took to prevent the father
being with his new daughter, one hour after the birth, are even more troubling.
To have Will looked after by strangers in a transition house even for two hours
when the father was perfectly capable of looking after his son is telling of
the mother’s attitude towards the father.

[112]     Also
disturbing are the comments made by the mother in the Baby Diary concerning the
father, specifically her comment:

What kind of mother am I to expose you to someone like him.

It would be a blessing if I never
had to see or speak to him again. It would be best if the children never knew
the sick and twisted man who fathered them.

[113]     There are
other similar comments in the diary. With this attitude ingrained in the mother
and her demonstrated track record of denying access and being uncooperative in
terms of changing access times (acknowledging that the father is only
marginally better in terms of being cooperative), I am satisfied that if these
children are allowed to move to Saskatchewan, there is a high probability that
the mother will deny access and alienate the children from their father.

[114]     Dr. Waterman
agreed that it is a serious matter where “one parent has it in their mind that
it would be best if the children never knew the sick and twisted man who
fathered them”. Although Dr. Waterman said that such views were not
uncommon in contested divorces, what happens typically is that over time things
get resolved, such strong beliefs subside, and eventually the parents learn to
cooperate. If these types of beliefs persist however, the custodial parent will
typically find ways to deny access and attempt to alienate the children from
the other parent. He agreed that concerns about parents going down the latter
path would be heightened if the custodial parent moves a great distance away.

[115]     I am
satisfied that because of the intense animosity and hostility that the mother
and father have towards each other, the beliefs of the mother about the nature
of the father will persist. Her past conduct is consistent with this. I am
satisfied that it would not be in the best interests of these children to allow
them to go to Saskatchewan and live with their mother. I am aware that the
right of the mother to move with her children should only be denied in the
“rarest of cases” but after balancing all of the relevant factors and
considering what is in the best interests of the children, I order that the
children not be removed from the Vernon area which includes Armstrong, Silver Star
and Predator Ridge.

[116]     I am
satisfied that it is in the best interest of the children because of their ages
and because of their attachment to their mother that the mother be awarded sole
custody. This is consistent with the recommendations of Dr. Waterman.

[117]     In order
to attempt to change the “dysfunctional environment” that exists, I accept the
recommendations of Dr. Waterman that contact between these parties should
be restricted and I order that they are to only contact one another by email and
shall respond to such contact within five hours. They also have each other’s
cell phone numbers which can be used in emergencies. The pick-ups and drop-offs
will be at the mother’s home, but the actual pick-ups and drop-offs will be
done by an employee of “We Care” or by some other individual that the parties
agree to in writing. The father will remain in his automobile during the
pick-ups and drop-offs and this issue should be reviewed in one year.

[118]     One thing
that will assist in defusing the power-struggle between the parties will be the
introduction of a parent coordinator which was recommended by Dr. Waterman.
I also encourage the parties to seek professional counselling as in my view it
is in the best interests of these children that they do so, although I do not
have authority to make an order to that effect.

[119]     Both
parties should be involved with these children and it is my view that there
should be an order for joint guardianship based on the Joyce Model with
appropriate variations as necessary to deal with the parent coordinator.

[120]     Because
the father works Thursday to Saturday and both parents wish to take the
children to church on Sunday, I order that the father will have access to the
children from the first Sunday following the filing of these reasons at 8:00 in
the morning to Tuesday at 7:00 in the evening. While Ella has only had access
overnight during Christmas, I am satisfied that she is old enough and that the
father is certainly capable of looking after her for overnight access. Access
will be the same for both children. Having the children picked up and dropped
off at the same time will also reduce the friction that has been caused by the
pick-ups and drop-offs.

[121]     The
parents will each have the children for four hours on their parents’ birthdays
and grandparents’ birthdays, the mother will have four hours on Mother’s Day,
and the father four hours on Father’s Day. Christmas will be shared, the mother
will have the children one week prior to Christmas Day with the exchange taking
place at 12:00 noon on Christmas Day and the father will have the children for
one week following with this schedule alternating each year. The father will be
entitled to the long weekend this Easter and the mother the following Easter,
again, rotating each year. During summer 2013, the father will have the first
two weeks, commencing the first Saturday in July, the mother the following two
weeks to complete an eight-week summer access schedule.

MARRIAGE-LIKE RELATIONSHIP

[122]     The
obligation to pay spousal support is found in s. 89 of the Family
Relations Act, which states:

89 (1) A spouse is responsible and liable for the support and
maintenance of the other spouse having regard to the following:

(a) the role of each spouse in
their family;

(b) an express or implied agreement
between the spouses that one has the responsibility to support and maintain the
other;

(c) custodial obligations
respecting a child;

(d) the ability and capacity of,
and the reasonable efforts made by, either or both spouses to support
themselves;

(e) economic circumstances.

[123]     A spouse
is defined in s. 1(1) of the Family Relations Act as follows:

"spouse" means a person who

(a) is married to another person,

(b) except under Parts 5 and 6, lived with another person in
a marriage-like relationship for a period of at least 2 years if the
application under this Act is made within one year after they ceased to live
together and, for the purposes of this Act, the marriage-like relationship may
be between persons of the same gender,

(c) applies for an order under this Act within 2 years of the
making of an order

(i) for dissolution of the person’s
marriage,

(ii) for judicial separation, or

(iii) declaring the person’s
marriage to be null and void, or

(d) is a former spouse for the
purpose of proceedings to enforce or vary an order.

[124]     The
position of the father is that this was not a marriage-like relationship and in
any event they did not live together for a period of two years.

[125]     The term “marriage-like
relationship” has been interpreted by our Court of Appeal in Gostlin v.
Kergin (1986), 3 B.C.L.R. (2d) 264 (C.A.) [Gostlin], where
Lambert J.A. for the Court stated at pp. 267-278:

In deciding whether a couple lived together as husband and
wife, I would be guided by the scheme and intention of the Act itself. The
purpose of the legislative scheme is to impose on an unmarried couple the same
obligations under s. 57 as are voluntarily undertaken by a married couple.
So I would ask whether the unmarried couple’s relationship was like the
relationship of the married couple in that the unmarried couple have shown that
they have voluntarily embraced the permanent support obligations of s. 57.
If each partner had been asked, at any time during the relevant period of more
than two years, whether, if their partner were to be suddenly disabled for
life, would they consider themselves committed to life-long financial and moral
support of that partner, and the answer of both of them would have been
"Yes", then they are living together as husband and wife. If the
answer would have been "No", then they may be living together, but
not as husband and wife.

Of course, in the particular circumstances of any case, the
answer to that question may prove elusive. If that is so, then other, more
objective indicators may show the way. Did the couple refer to themselves, when
talking to their friends, as husband and wife, or as spouses, or in some
equivalent way that recognized a long-term commitment? Did they share the legal
rights to their living accommodation? Did they share their property? Did they
share their finances and their bank accounts? Did they share their vacations?
In short, did they share their lives? And, perhaps most important of all, did
one of them surrender financial independence and become economically dependant
on the other, in accordance with a mutual arrangement.

All those questions, and no doubt
others, may properly be considered as tending to show whether a couple who have
lived together for more than two years have done so with the permanent mutual support
commitment that, in the relevant sense of the Family Relations legislation,
constitutes living together as husband and wife.

[126]     In J.J.G.
v. K.M.A., 2009 BCSC 1056 [J.J.G.], after referring to Gostlin,
Madam Justice Dardi states as follows:

[33]      The Court of Appeal in Austin v. Goerz, 2007
BCCA 586, clearly articulated that some level of financial dependence is not a
necessary component of a “marriage-like” relationship. As the trial judge in
Austin observed, such a principle would be untenable in the context of modern
society’s marriages and relationships. How the parties arrange their financial
affairs is but one factor to be considered in the analysis of whether a
relationship is “marriage-like”. Likewise, shared shelter, sexual and personal
behaviour, services, social activities, and social perception of the couple, as
described in Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont.
Dist. Ct.), are factors to be considered.

[34]      In modern society, however, there is no “checklist
of characteristics” that will be found in all marriages or “spousal-equivalent”
relationships: Austin. Rather, in undertaking the analysis of what
constitutes a marriage-like relationship, the court should take a broad view in
order to reflect the diversity of spousal relationships that exist in modern
society.

[35]      The focus of the inquiry is on the parties’
intention to live as “husband and wife” or in a “marriage-like” relationship as
“divined” from an objective overview of the facts. The comments of the majority
decision in Takacs v. Gallo (1998), 157 D.L.R. (4th) 623 (B.C.C.A.) at para. 53,
are instructive:

[53]      … By the same token, of
course, subjective or conscious intentions may be overtaken by conduct such
that whilst a person living with another might not say he or she was living in
a marriage-like relationship, the reality is that the relationship has become
such.

[36]      The Court states at para. 55 that, while
objective factors will be relevant to determining the intention of the parties,
those factors will rarely be determinative in and of themselves.

[37]      In summary, in undertaking an analysis of whether
persons are living together as spouses, the court must examine the relationship
as a whole and consider all the various objective criteria referred to in the
authorities. The presence or absence of one particular factor will not be
determinative. The court must recognize that each relationship is unique and,
in applying a flexible approach within the context of the particular
relationship, make a determination as to whether the parties intended to and
were living in a marriage-like relationship.

[38]      With respect to what constitutes a termination of a
common-law relationship, Binnie J. in Hodge v. Canada (Minister of Human
Resources Development), 2004 SCC 65, cited with approval the observation of
Morden J.A. in Re Sanderson and Russell (1979), 24 O.R. (2d) 249 (C.A.)
at 432:

Subject to whatever provision may
be made in a statute, a common law relationship ends “when either party regards
it as being at an end, and by his or her conduct, has demonstrated in a
convincing manner that this particular state of mind is a settled one.”

See also Gosbjorn v. Hadley,
2008 BCSC 219.

[127]     It asked
of the parties whether they would consider themselves committed to the lifelong
financial and moral support of the other if at any time during the relationship
they were to be suddenly disabled for life. The father said no. The mother said
yes, “for a period of time, but that changed over time”, never explaining when
this change occurred.

[128]     The father
says that the evidence is consistent that he never intended to enter into a
lifelong financial and moral obligation. The mother herself admitted that he
had told her that he “did not love her enough to financially support her”. There
is also a note in the mother’s diary of September 29, 2007, where she wonders if
the father intended to give her any financial support.

[129]     Since Gostlin
was decided in 1986, in my view, society and the nature of relationships have
changed. Moreover, it is somewhat unrealistic to ask people after they have
separated whether or not during the relationship they would have considered themselves
committed to lifelong financial and moral support, as there will usually be an
obvious incentive on the part of at least one party to misrepresent their
intentions. While this question and its answer can provide some guidance to the
Court, the objective indicia of commitment must also be examined in order to
determine the parties’ actual intent at the time.

[130]     The
parties here did not refer to themselves as husband and wife or as partners. The
father on a number of occasions made it clear that he was not a husband and
they were not married and even the mother’s evidence was that the father never
referred to her and Will as a “family”. However, the father, when filing his
2008 and 2009 income tax returns referred to the mother as his “common law
partner” and his 2011 income tax return indicated his marital status was
“separated”. That statement, I take it, is to mean he was separated from his
common law partner, otherwise the word “separated” would not make any sense.

[131]     The
parties lived at the father’s premises at L&A Crossroads for the first year
of their relationship and then rented premises at either Silver Star or
Predator Ridge Golf Course. The father’s company paid for the residence at Silver
Star in the summer of 2009 and the father and mother both signed a lease for a
season at Predator Ridge, although prior to moving in the father took his name
off the lease. There is ample evidence that the parties shared the living
accommodations at Predator Ridge and Silver Star.

[132]     Other than
the rental accommodation, they did not share property or bank accounts, but
they certainly shared finances. In an email at Exhibit 50, dated September 24,
2007, the father wrote to the mother saying:

My intention, ever since we began
dating, was to provide you financial situation. I thought I was doing the right
thing. We’ve been living together for approximately a year now. During that
time I covered most of our day-to-day expenses. Allowing you to dedicate your
resources to increasing your financial portfolio. I even thought that by
planning to negotiate a new private placement on your behalf, was also doing
the right thing for you.

[133]     What is
most telling is that in an affidavit sworn by the father on June 16, 2010, he
states:

The defendant and I live on and
on and off basis commencing in or about October of 2006 and in a common law
relationship from October 1, 2007 until the defendant abducted our child,
William Christopher Hokhold, born January 25, 2008, to Swift Current, Saskatchewan
on February 25, 2010.

[134]     That
statement is consistent with Dr. Hokhold’s income tax returns of 2008 and
2009 and consistent with the mother’s contention that they lived together for a
period of time in excess of two years. By Dr. Hokhold’s own evidence they
lived in a common law relationship for three years and seven months.

[135]     The
parties also shared expenses. In addition to Dr. Hokhold paying for one
season’s rent at Silver Star, he paid for most of the groceries for the home,
paid for her car insurance for one year and paid her way to visit her elderly
parents in Swift Current.

[136]     Although
the father went out of his way to give the appearance that he was not
supporting the mother, it is clear that, since the mother had no source of
regular income after the termination of her maternity leave, the father
supported the family. Those payments I have already referred to and total an
average of $2,279 per month.

[137]     The
parties also entertained together, held business promotion events for the
father’s dental practice and vacationed together including spending Christmas
with the father’s parents. In addition, the father attended some of the
mother’s medical appointments and they also attended a fertility clinic
together. The parties certainly shared an intimate long-term relationship as
the mother was pregnant on four occasions and gave birth to Will and Ella.

[138]     Looking at
this relationship in its totality, through its ups and downs,  I am satisfied
considering all the evidence that this was a marriage-like relationship that
existed for a period of over two years.

INCOME OF THE FATHER

[139]     The
Federal Child Support Guidelines are incorporated into the Family Relations
Act of British Columbia pursuant to the Child Support Guidelines
Regulation, B.C. Reg. 94/2007.

[140]     Section 19
of the Federal Child Support Guidelines, S.O.R./97-175 states:

19. (1) The court may impute such amount of income to a
spouse as it considers appropriate in the circumstances, which circumstances
include the following:

(a) the spouse is intentionally under-employed or unemployed,
other than where the under-employment or unemployment is required by the needs
of a child of the marriage or any child under the age of majority or by the
reasonable educational or health needs of the spouse;

(b) the spouse is exempt from paying federal or provincial
income tax;

(c) the spouse lives in a country that has effective rates of
income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would
affect the level of child support to be determined under these Guidelines;

(e) the spouse’s property is not reasonably utilized to
generate income;

(f) the spouse has failed to provide income information when
under a legal obligation to do so;

(g) the spouse unreasonably deducts expenses from income;

(h) the spouse derives a significant portion of income from
dividends, capital gains or other sources that are taxed at a lower rate than
employment or business income or that are exempt from tax; and

(i) the spouse is a beneficiary
under a trust and is or will be in receipt of income or other benefits from the
trust.

[141]     The
position of the mother is that the father should be working four days a week,
not three, that his property is not being reasonably utilized to generate
income in part due to his donations to political parties, and that expenses are
being unreasonably deducted from his income.

[142]     The father
works three days a week, for 10-11 hours per day. The normal work week for a
dentist is four days a week, but he says he is unable to work four days because
of injuries sustained in a motor vehicle accident which occurred on December
24, 1998. The father and his many witnesses including the mother have noted
that he has soreness in his neck and has headaches and rubs his neck when he is
tired or has worked long hours. I accept the proposition that medical evidence
is not always necessary to prove an injury but when medical evidence is available,
there must be a good reason as to why it was not produced.

[143]     After the
accident, the father was off work for one year and then later sold his practice
in 2000. This accident was the subject of a lawsuit which settled after a
one-week trial, but there is no evidence as to how much he received for loss of
future earning capacity.

[144]     The
father’s position is that he entered into a confidentiality agreement with the
insurance company and is not allowed to divulge the terms of settlement. The
Court invited him, however, to apply for an order to have the information
produced and sealed in Court, but he refused to do so.

[145]     Supreme
Court Rule 7-1(1)(a) requires the Court to:

(a) prepare a list of documents in Form 22 that lists

(i)  all documents that are or have been in the party’s
possession or control and that could, if available, be used by any party of
record at trial to prove or disprove a material fact, …

[146]     The
failure of the father to provide the available medical evidence from the trial
leads me to draw the adverse inference that the medical evidence would not have
assisted his claim.

[147]     The father
says that in any event there are not sufficient patients to enable him to work
four days a week. Sigrid Olynuk, his receptionist, gave evidence that the
father has been booking appointments approximately two weeks in advance and the
father argues that based on that evidence there is insufficient work on a
long-term basis for him to work four days per week. I reject that argument
because it seems reasonable to conclude given that the father’s practice is
restricted to oral surgery that his patients come to him in distress after
having already seen their regular dentist. Therefore, because of the nature of
the father’s practice, it would likely not be unusual that he only books two
weeks in advance.

[148]     Based on
all the evidence, I am satisfied that the father has the capacity to work four
days a week and his income should be imputed accordingly.

EXPENSES RELATING TO THE CHATEAU BLOCK

[149]     The father
deducts from his income expenses related to the development of the “Chateau
Block”. These expenses are run through his limited company and are not
segregated from his dental expenses. The mother argues that the Chateau Block
is more of a speculative adventure and that the expenses are unreasonable and should
not be deducted for the purposes of determining child support.

[150]     The
position of the father is that research and development of the Chateau Block is
a legitimate business undertaking which was pursued between 2000 and 2005 and since
2008.

[151]     In Volken
v. Volken, 2001 BCSC 970, Mr. Justice Macaulay at para. 31 stated
the following:

Lifting the corporate veil
pursuant to s. 18 permits the court to scrutinize corporate
decision-making where the payor has complete control over the company. This
should not lead to overturning reasonable and prudent business decisions, but
will ensure that the court is able to conduct a fair accounting of the money
available for the payment of child support without being bound by how the payor
chooses to characterize the remuneration from the company.

[152]     In Needham
v. Needham, [1998] B.C.J. No. 202 (S.C.), Mr. Justice Ralph
stated at para. 14:

… it is my opinion that the
Guidelines seek to determine a means of balancing the incurring of reasonable
expenses against the alternative of using those funds for child support. In
particular, section (19)(2) of the Guidelines recognizes that "the
reasonableness of an expense deduction is not solely governed by whether the
deduction is permitted under the Income Tax Act".

[153]     In Botha
v. Botha, 2000 ABQB 870, the Alberta Court of Queen’s Bench considered the
income of a medical doctor’s professional corporation and certain farm losses written
off by him pertaining to race horses he owned. The doctor’s position was that
the farm losses were real and they should reduce his income for child support
purposes as he believed the horses would eventually make money. The Court
stated at paras. 24-25:

24.       When s. 19 speaks to the unreasonable
deduction of expenses from income, it does not require establishing that the
spouse has acted improperly or outside the norm in deducting expenses. Section
19(2) explicitly recognizes that reasonableness is not governed solely by
whether the deduction is permitted under the Income Tax Act. The
deduction may be quite proper insofar as tax policy is concerned. The issue is
whether or not the full deduction of expenses which may be permitted by the Income
Tax Act results in a fair recognition of the actual income that is
available to that spouse from that source of income. The objective in
determining income for the purposes of the Guidelines is to determine the
monies available to a payor from the sources of income in the T1 General for
the support of the payor’s children. The payor’s disposable income can be
considerably more than his taxable income. If the payor’s children remained
part of the payor’s household they would have the advantage of and would
benefit from that disposable income and not just from the payor’s taxable
income: Wilson v. Wilson (1998), 165 Sask. R. 241 (Q.B.) (paras. 34-38).

25        The drafters of the
Guidelines were aware that shareholders, such as Dr. Botha, of a private
company can dictate the income received from the business. The drafters were
aware that the shareholder can receive salary, bonuses, dividends, benefits
paid on their behalf, repayment of shareholders’ loans, or even defer the
payment of income. The shareholder may expense many personal items to the
business and reduce the amount of income he receives. Sections 17-20 of the
Guidelines allows the court to take into consideration all or any of these
factors and to add income back to the payor to ensure the Guideline income
reflects true income as closely as possible.

[154]     In August
2011, the father’s company entered into a sale agreement to purchase an
excavator and a hydraulic hammer for a total sum of $766,080. These were
delivered in the latter part of October 2011, used for only two days in order
to train the father in the machines’ operation, and have sat in the vendor’s
yard ever since. The father’s company’s year-end was October 31 and for the
year 2011, he claimed for this equipment an amortization or write-down of
$92,651, which according to his accountant Mr. Cousins, was half the
normal rate of amortization because he did not use the machine for the full
year. I am satisfied that the purchase of this machinery and its delivery and
use just prior to year-end is not coincidental. It may be legitimate for income
tax purposes but it is not a proper deduction for calculating child support.

[155]     The main issue
with respect to the Chateau Block business is whether or not it is more in the
nature of a hobby, a speculative adventure, or a legitimate business.

[156]     In 2011,
Read Jones Christofferson, a consulting engineering firm, was retained by the
father to provide engineering services and advice. They state in their report:

The project includes the
construction of 80 meter high tower. Due to the many unique features that will
be incorporated into the design of this structure, it is difficult to determine
anticipated constructions costs with any accuracy. The perimeter walls of the
tower are expected to be 4 to 5 times thicker than conventionally reinforced
concrete walls. I expect, therefore, that construction costs for this structure
will exceed 4 times the cost of conventional structure and therefore, are likely
to be well in excess of $3 million. This excludes fabricating costs for the
precision formworks to produce the Chateau Blocks, batch plant costs and
assembly, as well as operating and producing select graduated aggregates.

[157]     I conclude
from the engineering report that they cannot provide any satisfactory answers
as to when this block will be in production, if it is viable, or what it will
cost.

[158]     The
father, however, claims that experimental development costs associated with the
project have been approved by Revenue Canada through 2000 to 2004. The letters
from Revenue Canada however do not include the experimental development
expenses that are claimed. Instead, many of the letters state that:

The claim is being processed
without a science review. We remind you that “proceeds without a science
review” means that a determination has not been made of whether the work claim
meets the definition of SNRED in s. 248(1) of the Income Tax Act.

[159]     Further, there
is no secured source of aggregate for the blocks, a facility necessary to
construct the blocks has not been obtained, there has been no business plan,
nor is there any evidence that financing would be available. There are no
market studies that have been conducted to determine if there is any demand for
this particular product. I am satisfied that this venture is so speculative
that it should not be used to reduce the funds available for child support.

CALCULATION OF INCOME

[160]     Most of
the income derived in 2010 was prior to the father opening his own dental
office. The expenses claimed such as “consulting fees” were mainly for Mrs. Bird
who did work for both the dental practice and for the Chateau Block projects. Unfortunately,
there is no documentation that provides a breakdown. The mother claims that the
Court should reduce the claimed expenses by 50%, while the father says there is
no basis for such a reduction. I am satisfied that it is up to the father to
provide the documentation for his claimed expenses, which he has not done. Therefore,
taking 50% of the consulting fees and applying them to the dental practice’s
earnings before taxes yields an income of $246,052. Adding back a salary of
$12,000 and $21,000 for consulting fees, I calculate the amount to be $279,052
for the father’s income for 2010, year ended October 31.

[161]     The mother
did not argue that the four-day week should be applied to the year 2010 and
this may be because the father had not set up his own practice in his own
building at that time.

[162]     For 2011, the
father’s revenues were $1,196,257. Accounting for the fact that he can work
four days a week would increase his income by $398,752, less his increase in variable
expenses of $117,640 with earnings before other items at $556,975. Adding back
the automobile expenses of $9,575 as he did not use his automobile for business
yields a total of $576,125.

[163]     Again, the
expenses for Mrs. Bird amount to $69,483 (consulting fees), so adding back
50% of those, or $35,000, gives a total of $610,000.

[164]     The mother
says that the amount due from the B.C. Patriot Party of $1,070,510 was a loan
without interest and that this was not a prudent use of family resources. She
says that to reflect this, interest at a rate of 4%, amounting to a total of $42,820
should be added to his income. She argues that there was a further loan to the
B.C. Patriot Party of $147,600, which at 4% interest would mean another $5,904
should be added to his income. It is somewhat confusing as to the exact purpose
of these loans and as to which of his two political parties was to be the
beneficiary.

[165]     In any
event, I am not prepared to find that monies that the father or his company loaned
to various political parties should result in income being imputed to him on
the basis that it is not a prudent use of family resources because the vast
majority of loans were made prior to the birth of any children. This is a
political donation, something that the Court should generally not question, and
in any event, the father has ample resources to pay support in the scheme of
things. This is not a significant item. I therefore find that as of October 31,
2011, the father has income for child support purposes of $610,000.

CHILD SUPPORT

[166]     The mother
has been out of the workforce for five years; she quit work shortly after
becoming aware of her pregnancy with Will because she was high risk. Although
there is no formal agreement that the father would support the mother, I am
satisfied that this was an understanding they had as there was no suggestion at
any time that the father requested that the mother return to work, save and
except for doing some part-time work for his dental practice.

[167]     The mother
requested spousal support be paid until Ella is in Grade 1 which will be for a
period of four years. The position of the father is that the mother should have
been working and that there are jobs available. A witness was called on his
behalf who testified that there is a part-time position available in the Vernon
London Drugs for a pharmacist.

[168]     It is my
opinion that because of the turmoil these children have gone through and the
necessary period of adjustment that is going to have to be made to allow both of
these families to settle into some normal routine, that to force the mother
back to full-time work under these circumstances at an early date would not be
in the children’s best interests.

[169]     I am of
the view that the mother should be requalifying to practice pharmacy in British
Columbia and that within one year from the date of this order, she should have
some type of part-time employment that does not interfere with her childcare
responsibilities. I am satisfied that spousal support should be reviewed in
July of 2016. That will have given the mother ample opportunity to get back on
her feet and pursue her profession.

RETROACTIVE CHILD SUPPORT

[170]     On April
9, 2010, the mother filed a counterclaim seeking child and spousal support. An
application was set down in the summer of 2010 for child and spousal support
but did not proceed. It was not set down on an earlier date because the father
did not have his financial statements up to date, and there were further delays
because of insufficient court time. Finally in September 2010, there was a without
prejudice settlement made which included a lump sum payment and periodic
payments. Monthly payments have been made since that date.

[171]     Ms. Muto,
who was the father’s solicitor at the time these proceedings commenced, stated
that when the without notice application was made in March 2010, the father
inquired as to his financial obligations for support and was advised that she
could not give him advice because he had no proper financial documents. He told
her that he only made $12,000 a year in income and she was of the view that
that would not have been accepted by the Court. Various demands were made for
financial disclosure but because of the need to bring the father’s accounting
records up to date, financial disclosure has not been timely.

[172]     I am satisfied
the date of effective notice is the date of the filing of the counterclaim.

[173]     The issue
of retroactive support was reviewed by Rowles J.A. in L.S. v. E.P., 1999
BCCA 393, at paras. 66-67:

[66]      A review of the case law reveals that there are a
number of factors which have been regarded as significant in determining
whether to order or not to order retroactive child maintenance. Factors
militating in favour of ordering retroactive maintenance include: (1) the need
on the part of the child and a corresponding ability to pay on the part of the
non-custodial parent; (2) some blameworthy conduct on the part of the
non-custodial parent such as incomplete or misleading financial disclosure at
the time of the original order; (3) necessity on the part of the custodial
parent to encroach on his or her capital or incur debt to meet child rearing
expenses; (4) an excuse for a delay in bringing the application where the delay
is significant; and (5) notice to the non-custodial parent of an intention to
pursue maintenance followed by negotiations to that end.

[67]      Factors which have
militated against ordering retroactive maintenance include: (1) the order would
cause an unreasonable or unfair burden to the non-custodial parent, especially
to the extent that such a burden would interfere with ongoing support
obligations; (2) the only purpose of the award would be to redistribute capital
or award spousal support in the guise of child support; and (3) a significant,
unexplained delay in bringing the application.

[174]     In D.B.S.
v. S.R.G., 2006 SCC 37, the Supreme Court of Canada stated that the factors
to be considered in determining whether to make an award for retroactive
support were: (1) the existence or absence of a reasonable excuse as to why the
support was not sought earlier, (2) the conduct of the payor parent, (3) the
circumstances of the child (in particular his or her current standard of
living), and (4) any hardship that would be occasioned by a retroactive award.

[175]     I am
satisfied that there is a need on the part of the children and of the mother
and that there is a corresponding ability to pay on the part of the father and
that there is some blameworthy conduct on behalf of the father as he had not
provided timely, complete, financial disclosure. I am satisfied that the mother
was pregnant at the time of the separation and that she already had one child
and she had no source of income other than the support that had been provided
by the father. I am satisfied that the delay was caused by the lack of
financial disclosure and that there was ample notice that the mother intended
to pursue the issue of support. There is no suggestion that the order would
cause an unreasonable or unfair burden on the father and I am not purvey to the
without prejudice payments made by the father and therefore have no opinion as
to whether or not the order will serve to redistribute capital. The
circumstances of the children, who will be living primarily with their mother
who is currently not working, will also be ameliorated by a retroactive award. In
all the circumstances, an order for retroactive support is appropriate in this
case and I order that there be retroactive child support and spousal support as
of April 15, 2010, less any payments that have been made to date.

NAMES OF THE CHILDREN

[176]     Pursuant
to s. 4.1(1) of the Vital Statistics Act, R.S.B.C. 1996, c. 479:

4.1  (1) The court may, in an order declaring a child’s
parentage, make an order

(a) that the registration of a
child’s name be changed, or

(b) if the child’s name has not yet
been registered, requiring the child’s name to be registered as specified in
the order.

(2) If an order under subsection (1) is in respect of a
child’s surname, the court must order the child’s surname to be

(a) the surname of either parent,
or

(b) a surname consisting of both
parents’ surnames hyphenated or combined in alphabetical order, in which case,
section 4 (2) and (3) applies.

(3) Before making an order under subsection (1), the court
must

(a) consider the best interests of
the child, including the matters set out in section 9 (1) (a), (b) and (c),

(b) if the child is at least 7
years of age but less than 12, consider the views of the child, and

(c) if the child is 12 years of age
or older, have the child’s written consent to change the child’s name.

(4) If an order is made under subsection (1),

(a) the chief executive officer
must record the child’s name on the registration of birth, consistent with the
order of the court, and

(b) a birth certificate issued after recording the name under
paragraph (a) must be issued as if the original registration had contained that
name.

[177]     There is
no dispute that there was an agreement that the mother would name the first
child and the father would name the second child. The mother says she breached this
agreement because everything changed following the separation. Unfortunately,
nothing has changed with respect to the naming of the child; they still have
the same father, the same mother, and their son Will still has the name Hokhold.
The mother now says that the last name should be hyphenated, but prior to
separation both parties agreed that a hyphenated name would not be appropriate.
I agree that a hyphenated name would not be in their best interest.

[178]     I am
satisfied that the father should have been allowed to name his daughter. He
wanted her to be called Clara in honour of his mother. Ella’s first name should
not be changed because that is what she is used to, but I am satisfied that it
is in her best interests to also have the name Clara and I so order that her
name will now be Ella Clara Hokhold.

[179]     A
parenting coordinator has been agreed upon by the parties and that, in my view,
is an important first step towards a more cooperative relationship. I will be
seized of this claim which I trust will add some stability to this litigation.

[180]     Since the
father’s Guideline income is in excess of $150,000, counsel should have an
opportunity to make submissions on the proper level of child and spousal
support, the date of the annual review of child and spousal support, the timing
of the annual exchange of income tax returns and financial statements and the
matter of costs. The father’s submissions are to be filed by September 17,
2012, and the mother’s submission and reply by September 24, 2012 with the
father’s reply to be filed by October 1, 2012.

The
Honourable Mr. Justice F.W. Cole