IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151104

Docket: E141550

Registry:
Vancouver

Between:

P.T.

Claimant (Respondent on
Appeal)

And

K.T. also known as
D.T.

E.T., in her
personal capacity and

in her capacity as
trustee of the T. Family Trust,

B.W.T. also known
as V.T. and K. Holdings Ltd.

Respondent (Appellant on
Appeal)

Before:
The Honourable Mr. Justice Armstrong

On
appeal from:  An order of the British Columbia Supreme Court, dated May 6, 2015
(P.T. v. K.T., 6 May 2015), Vancouver E141550 (B.C.S.C.).

Reasons for Judgment

[1]            
These reasons concern the appellant’s appeal of an order made by Master
Taylor on May 6, 2015, P.T. v. K.T., (6 May 2015), Vancouver E141550
(B.C.S.C.), settling interim parenting arrangements for two children now in the
middle of this family law dispute.

[2]            
The trial of this proceeding is scheduled for January 2016. Counsel for
the appellant said that he is not available for that date but expects dates will
be available within three to four months.

Background

[3]            
The parties were married in 1991 and separated in January 2014. They
have two children, namely A.T. born October 31, 2003 and C.T. born January 9,
2007.

[4]            
The respondent holds a Master’s degree in engineering and currently
works in a sales positon in the telecom industry. The appellant has a
bachelor’s degree in computer science and worked in the software engineering
field until 2001. She was seriously injured in an auto accident in 2006 and
since that time has restricted her work to managing a fourplex property
previously owned by her parents.

[5]            
Shortly after separation the respondent moved from Vancouver to Richmond
and lived there at the time of the application. The appellant remained living
in Vancouver with the children at the appellant’s parent’s home in Vancouver.

[6]            
The children attend independent elementary schools in the City of
Vancouver. A.T. is a bright child who has been diagnosed with a learning
disability. C.T is a gifted child and is in an enriched school program.

[7]            
The children have extremely busy extracurricular schedules as described
by Master Taylor in paras. 8 – 13 of his reasons.

The Decision

[8]            
Master Taylor formed the view that the status quo concerning parenting
should remain in place with the exception of a minor alteration if the respondent
moved into the City of Vancouver and was thus able to reduce the amount of time
the children commuted to spend time with each parent. He said at paras. 17 – 21:

Would any change in the current schedule of the children
be in their best interests?

[17]      I have come to the conclusion that any current
change to the status quo would not be in the children’s best interests. That
does not mean that a change should not happen at an appropriate time.

[18]      My sense is that a rescheduling of some of the children’s
activities could occur with some advance notice. As well, it is my view that
the claimant could do more to make co-parenting with the respondent somewhat
easier. That could be accomplished by the claimant making arrangements to live
closer to where the children’s schools and activities are located, so that the
children do not spend as much time in a vehicle commuting from Vancouver to
Richmond.

]19]      Accordingly my order is that the parties are to
divide equally the time the children spend with each of them during all school
vacations, commencing August 2015, as the children will be attending summer
school in July.

[20]      The claimant’s application is granted commencing
September 1, 2015, for parenting time with the children three nights per week,
Thursday to Saturday inclusive. There will be no make-up days for travel.

[21]      All of this is conditional, however, upon the
claimant acquiring accommodation in the City of Vancouver by August 31, 2015.
If the accommodation has not been acquired by that date, then the commencement
time for the main portion of the order will be adjusted accordingly until such
time as the accommodation is found in Vancouver.

The Appellant’s Position

[9]            
The appellant’s complaint is, in part, that she will not have any
overnight access with the children on weekends. She seeks to have a Saturday
night with the children to facilitate more social activity and a more leisurely
Sunday morning.

[10]        
The appellant complains that under the order, the children’s weekend
time with her is so limited she is unable to socialize with them or have nights
where there is no school the next morning. She wants to have opportunities to
invite friends to her home to play with the children and to enjoy other social
time with them. She believes she will be doing all the work without enjoyment
of any of the social time.

[11]        
She deposed that Sunday mornings were the only morning the children
sleep in and wake up at 8:30 – 9:00 a.m. She said that if the children are in
Richmond Sunday mornings, this would involve an early morning commute.

[12]        
The appellant argues that Master Taylor, although aware of the
respondent’s travel demands for his work, failed to take them into account in
his deliberation. Specifically, she contends Master Taylor failed to consider
that the respondent did not need to exercise all of his parenting time on
weekends to accommodate his schedule (Appellant’s Submissions at para. 47).

[13]        
Further, she contends that the Master did not consider the children’s
specific scheduling, including upcoming examinations for entry into private
schooling. She also argues the Master did not take into account A.T.’s apparent
reluctance to visit the respondent at times when overnights conflicted with her
work needs. She submits that there should be flexibility in any parenting order
to accommodate A.T.’s academic needs. She argues the Master erred in failing to
take these needs, as well as her concerns around them, into account in
determining her best interests.

[14]        
She also complained that in the Master’s reasons, he said that the status
quo should prevail but then, without offering her a chance to respond to the
possibility of the respondent moving into the City of Vancouver, included a
change to the status quo if he relocated to Vancouver. She says that at the
time of the application, there was no evidence the respondent was intending to
move to Vancouver, although Master Taylor seems to have contemplated a move as
a condition of the schedule he approved.

[15]        
The appellant contends that the test on an appeal of an interim
parenting order is not subject to the usual “clearly wrong” test: Degrandis
v. DeGrandis, [1990] B.C.W.L.D. 1751, 48 B.C.L.R. (2nd) 53 (S.C.); Thibeault
v. Ravelo, [1999] B.C.J. No. 1457 (S.C.).

[16]        
She argued that when considering questions of interim custody and
parenting on appeal, these interim rulings must be examined on a case-by-case
basis to determine if the interim ruling will likely have a direct bearing on
the disposition of the issues at trial with a consideration of the specific
issues and the length of time any interim ruling might be in place. In Thibeault
at para. 15, Mieklam J. outlined this approach as the preferred practice.

[17]        
Thus, the appellant contends that the effect of the Master’s reasons will
have implications for a long enough interval of time that they may affect the
trial outcome and work against the best interests of the children. She urged
the Court to perform an analysis of flaws in the Master’s reasoning and his
failure to consider significant aspects of the evidence, including his failure
to allow her an opportunity to address the impact on parenting if the claimant
moved into Vancouver.

[18]        
The appellant seeks a parenting schedule that would vary Master Taylor’s
order by eliminating one overnight that A.T. would spend with the respondent every
fortnight. She argues, there would be no change in the number of nights the respondent
spent with C.T. and the net difference from Master Taylor’s order would be that
the children would have weekend evenings with their mother (Appellant’s Submissions
at para. 54).

The Test

[19]        
The generally accepted test on an appeal of a Master’s interim order is
that it will not be set aside unless it is clearly wrong: Abermin
Corporation v. Granges Exploration Ltd. (1990), 45 B.C.L.R (2d) 188 at 193 (S.C.).

[20]        
This “clearly wrong” test is not applied in cases of interim parenting
where the decision raises questions vital to the final issue and creates a
parenting arrangement that will directly impact the issues to be resolved at
trial. In these circumstances, a rehearing is the appropriate form of appeal: Abermin
Corporation at 193.

[21]        
The approach adopted by Mieklam J. was approved in Cocco v. Cocco,
2000 BCSC 189 by Bennett J. where she said:

[15]      The test upon a review of an interlocutory order of
a Master is that the appellant must establish that the Master was “clearly
wrong” in the exercise of his or her discretion. I agree with the submission of
counsel that this test does not always apply in custody and access situations.
[See Thibeault v. Ravelo (06 August 1999) Prince George Registry #05543
(B.C.S.C.)] In Thibeault, Meiklem J. held that these issues must be
reviewed on a case-by-case basis to assess if the interim order will have a
direct bearing on the disposition of the issues at trial, bearing in mind the
issues and the length of time that the interim ruling will be in place.

[22]        
I accept that it is appropriate to perform a review to assess if the
interim order will have a direct bearing on the disposition of the issues at
trial, including a consideration of the length of time the interim ruling will
be binding on the parties. If the parenting arrangement approved by Master
Taylor will impact the disposition of the issues at trial, I would revisit the
underlying claims of the parties. It would be proper to allow the appeal if I
am satisfied that his decision is not in the best interests of the children and
might have long term implications for their future care.

[23]        
Conversely, if I conclude that the order under appeal will not likely
impact the trial outcome, then for the reasons described in Thibeault
and Cocco I should consider the appeal in light of the “clearly wrong”
test.

Analysis

Test to be Applied

[24]        
First, I am not satisfied that the appeal seeking to add one Saturday
night every fortnight to the parenting time available to the appellant
constitutes a factor that will play a vital role in the final decision
regarding parenting of the children. The order involves a minor incursion into
the appellant’s time with her daughter but, in my view, this is not sufficient
to reject the “clearly wrong” test. While the final disposition of this
proceeding is likely to be in March or April of 2016, this is not an inordinate
length of time to accommodate this order.

[25]        
Further, it must be emphasized that the appellant seeks only one
additional night with the children per week. She does not suggest or argue that
the respondent should not have near equal parenting time allocated to him. In
my view, a more exhaustive analysis of the impact of the change incorporated
into Master Taylor’s order and further consideration and review of all of the
evidence is not helpful when the question is one night every two weeks.

Master Taylor’s Order

[26]        
At the time of the application the appellant had agreed on equal parenting
time during vacations but opposed midweek parenting time for the respondent.
Master Taylor was concerned with the pressure of 17 activities each week in
which the children were engaged. He said that the children’s activities could be
rescheduled and that the respondent could do more to make co-parenting easier
by relocating his residence to the City of Vancouver. The order requires equal
sharing of vacations, and starting as of September 1, 2015 the respondent will
have three nights access with the children. The order was conditional upon the
respondent’s moved to Vancouver; he has made that move.

[27]        
Here the appellant does not allege any substantial error in Master
Taylor’s findings of fact. She says he failed to consider the child’s views and
failed to grasp the importance of the child’s upcoming educational challenges,
failed to fully consider the appellant’s position, and argues that without this
change she will not have any weekend night time with the children.

A.T.’s Academic Needs and Concerns

[28]        
The appellant is concerned about A.T.’s needs for extra academic
assistance and preparation for school entrance exams. She states that Master
Taylor was wrong in not considering this need and A.T.’s views on it. There is
nothing in the Master’s reasons or conclusions to suggest he was not alive to
the arguments advanced by the appellant. Although he may not have articulated
his views concerning those issues, the outcome is not flawed.

[29]        
Further, both parents are highly educated and capable of assisting their
children in their academic pursuits.

[30]        
The appellant wanted to include new evidence on this issue on the appeal
hearing on this matter; I declined to accept that evidence unless the appeal is
allowed and it was necessary to consider further material to form the terms of
a new order.

Expansion of Respondent’s Parenting Time

[31]        
Although the appellant contends that Master Taylor did not need to
expand the respondent’s parenting time to each weekend, I do not accept that
that decision was wrong.

[32]        
It seems to me that the appellant’s main complaint is not having the
children for one night on the weekend. I am satisfied that the respondent’s
Saturdays with the children will be filled with activities and the order
otherwise provides very little opportunity for him to be with his children and
share a family experience.

[33]        
The appellant says that she was not alerted to the possibility that
Master Taylor might view it in the children’s best interest to spend more time
with the respondent if he lived in the city. I assume that in addressing that
issue, he believed that it would be in the best interests of the children to
have this extended time with him. The respondent’s notice of application was
seeking parenting time for Thursday to Saturday nights. That was the issue
before the Master, it was argued, and he addressed it in the context of the
children’s best interests.

[34]        
In my view, where the respondent lived was in issue at the hearing; the
appellant commented on the amount of travel involved in facilitating his
parenting time.

[35]        
The appellant complains that because she did not have an opportunity to
address what might happen if the respondent changed residences she was somehow
disadvantaged.

[36]        
This is a disingenuous argument. The issues considered by Master Taylor
included adjusting the children’s activity schedule to facilitate better
opportunities for them to be with both parents. The Master concluded that if the
respondent lived closer to the family the arrangements with the children would
obviously have become easier and more efficient. His moving to Vancouver would
not affect anything concerning the children’s time with her or generally; the
change of residence increase the time available for the children to be with
him. It is obviously important for the children to have the optimum time with
both parents.

[37]        
I also note that there was an exchange between the appellant’s counsel
and the Court during which there was no mention of a controversy around the
prospect of the respondent’s relocating closer to the children.

Decision

[38]        
In my view, Master Taylor’s decision was not clearly wrong. It was
reached with an awareness of the issues and a balance was achieved between the
parties’ positions after considering a large volume of evidence. I accept that
the test described by Thibeault encourages the court to consider all of
the factors including the length of time until the trial and I have done so. These
children have obvious talents and challenges at school and with other
activities. Master Taylor suggested that changes could be made to improve their
schedules and lives.

[39]        
As a result, I dismiss the appeal.

“The
Honourable Mr. Justice Armstrong”