



COURT
OF APPEAL FOR BRITISH COLUMBIA




Citation:



S.J.C. v. S.-J.C.A.,









2010 BCCA 31




Date: 20100126

Dockets: CA036735, CA036816, CA37634

Docket:
CA036735

Between:

S.J.C.

Appellant

(
Plaintiff
)

And

S.-J.C.A.

Respondent

(
Defendant
)

Docket:
CA036816

Between:

S.J.C.

Respondent

(
Plaintiff
)

And

S.-J.C.A.

Appellant

(
Defendant
)

Docket:
CA037634

Between:

S.J.C.

Appellant

(
Plaintiff
)

And

S.-J.C.A.

Respondent

(
Defendant
)




Before:



The Honourable Chief Justice Finch





The Honourable Madam Justice Prowse





The Honourable Mr. Justice Mackenzie




On appeal from the Supreme Court of British Columbia, Victoria
Registry,

Docket
07-1775,
S.J.A. v. S-J.C.A
.

December
3, 2008, 2008 BCSC 1670; April 22, 2009 (unreported); and

October 7, 2009, 2009 BCSC 1377




Counsel for S.J.C.:



W.
  Murphy-Dyson





Counsel for S-J.C.A.:



K.
  Melbye





Place and Date of Hearing:



Vancouver,
  British Columbia





December 7, 2009





Place and Date of Judgment:



Vancouver
, British Columbia





January
  26, 2010









Written Reasons by
:





The Honourable Madam Justice Prowse





Concurred in by:





The Honourable Chief Justice Finch





Written Reasons Concurring in the
  Result:





The Honourable Mr. Justice Mackenzie (page
  26, para. 76)






Reasons for
Judgment of the Honourable Madam Justice Prowse:

INTRODUCTION

[1]

Two of the three appeals before the Court
involve the custody of a four year old girl (J).  The third appeal raises an
issue relating to costs.

[2]

The parties to these appeals, Ms. C and Ms. A,
began living together in 1994 and married in May 2005.  They became parents in
October 2005 when J was born as a result of Ms. Cs impregnation through
artificial insemination from an anonymous sperm donor.  The parties separated
in May 2007 when J was 19 months old.  At that time, the parties listed their
home in Victoria for sale and Ms. C left with J to live with her parents
in Qualicum Beach.  Since then, Ms. C and Ms. A have been engaged in an ongoing
dispute concerning the custody of, and access to, J.

[3]

Prior to the parties separation, Ms. A had
entered into a new relationship which was ongoing at the time of the appeal. 
Following the separation, Ms. C gave birth to a son (S) in March 2008, again
by artificial insemination from the same anonymous sperm donor.  S lives with
Ms. C and his custody is not in issue.

[4]

The key aspects of the three orders in issue
may be summarized as follows:

1.


December 3, 2008
 The trial judge
ordered that the parties have joint custody and guardianship of J, structured
so that J would spend equal time with each parent, on the basis of 4 days with
one parent the first week and 3 days with that parent the second week,
alternating on a 4 day/3 day schedule thereafter and with equal holiday time. 
That parenting schedule was to begin as of February 1, 2009, if possible.  Ms.
A was awarded costs, with liberty to apply.

2.

January 28, 2009
 The original costs order was modified to award Ms. A costs for her
preparation and conduct of the trial as determined by the Registrar, but not to
include the custody and access report.  Ms. As application for double costs
based on her offer to settle was dismissed.

3.

October 7, 2009
 The order of December
3, 2008 was varied to provide that Ms.  C would have primary care of J, with
specified access to Ms. A and with an effective parenting regime whereby Ms. A
would have access for one 9 or 10 day block of time each month.  Ms. C was
awarded her costs of that application and of a prior application relating to
daycare arrangements.

[5]

There were other orders made in the action to
which I will refer later in these reasons.

ISSUES
ON APPEAL

1.

The December 3, 2008 Order (the first
order)

[6]

Ms. C submits that the trial judge erred in
making an award of joint custody and guardianship with an equal parenting
regime.  She also submits that he erred in awarding Ms. A costs.  Ms. C
acknowledges that the custody and parenting provisions of the first order have
been superseded by the variation order made October 7, 2009, and that the
appeal from the first order is, to that extent, moot.  She submits, however,
that the question of whether the trial judge erred in making an order for equal
shared parenting in the first order is relevant in determining whether, and to
what extent, he erred in continuing the shared parenting regime in his
variation order of October 7, 2009, and in relation to the issue of costs.

2.

The January 28, 2009 Order (the costs
order)

[7]

Ms. A submits that the trial judge erred in
failing to award her double costs of the trial in circumstances where the
results she achieved at trial were better than her offer to settle made prior
to trial. In reply, Ms. C reiterates that the trial judge erred in failing to
order that each party bear her own costs.

3.

The October 7, 2009 Order (the
variation order)

[8]

Both parties submit that the trial judge erred
with respect to the terms of the variation order.  Ms. C submits that, given
Ms. As unexpected move to Victoria, the trial judge should have awarded more
limited access to Ms. A.  Ms. A submits that the trial judge should have
continued the equal parenting regime, with alternate week access.  Both parties
submit that the trial judge erred in failing to make an order which would
continue in effect when J commences kindergarten in September 2010.

[9]

In the event the Court determines that the trial
judge erred in making any of these orders, the parties wish this Court to make
the appropriate order, rather than refer the issues back to the trial court.

[10]

Both parties led further evidence on the appeal
as to what had transpired since the first order was made.  Counsel agree that
the Court should have recourse to that evidence to determine these appeals,
with the exception of two affidavits filed on behalf of Ms. A with respect to
the variation order.  Ms. C successfully objected to the introduction of those
affidavits at the variation hearing.  Counsel for Ms. A did not actively pursue
their admission on appeal.  I am satisfied that the trial judge was correct in
excluding those affidavits which, in any event, do not shed light on the proper
disposition of these appeals.

CONCLUSION

[11]

I would dismiss the appeal from the first order,
except with respect to the issue of costs, since the issues of custody and
access were rendered moot by the variation order.  I would allow the appeal
from the first order with respect to costs by ordering that each party bear her
own costs.  I would dismiss Ms. As appeal from the order refusing her double
costs.  I would allow the appeal from the variation order by setting aside the order
and substituting the provisions set forth in paras. 56-57 of these reasons for
judgment.

[12]

I would grant Ms. C her costs of all three
appeals.

DISCUSSION

1.

The Trial

[13]

The trial took place over 12 days in September
and October 2008.  It is not possible, or necessary, to detail the evidence led
at trial, which is set out in considerable detail in the reasons for judgment
of the trial judge.  I will refer to the evidence of the key witnesses in
summary form.

[14]

Ms. C and Ms. A testified at considerable
length.  Ms. Cs position at trial was that she should be the sole custodial parent
of J with specified access to Ms. A, including alternate weekends, some weekday
access and limited holiday access.  In Ms. Cs submission, Ms. A had a history
of depression and related mental health problems, and lacked the consistency
and stability to be a full-time or equal parent to J.  Ms. C also expressed
reservations about the impact of Ms. As new relationship on J and on the
suitability of Ms. As partner as a potential influence on J.  Evidence in
support of her application for custody was provided by, amongst others, her
parents and her brother.

[15]

Ms. Cs counsel cross-examined Ms. A extensively
about her past mental health and other problems with a view to demonstrating
that she was subject to recurring depressions which, if triggered by adverse
circumstances, could represent a risk to J.  Counsel for Ms. C also
cross-examined Ms. As family doctor and psychiatrist concerning their opinions
that Ms. A did not represent a potential risk to J.  During that
cross-examination, it became apparent that Ms. A had not fully disclosed her
history of emotional and mental health problems, nor a related family history
of mental health problems,
to those doctors
.  Counsel
for Ms. C also demonstrated that Ms. A and her counsel had effectively dictated
the affidavits of those doctors by directing them in a very specific way as to
what should be included.

[16]

The principal argument of Ms. C at trial was
that, as birth mother, she had been the constant and stabilizing force in Js
life both before and after the separation; that she had always put Js
interests first; and that she was able to spend more time with J since she was
on extended maternity leave and could do a lot of her work from home when she
returned to work.  In her submission, Ms. A had chosen her own interests over
those of J in breaking up the family and taking up with her new partner, and
that Ms. As history of mental health problems created the potential for risk
to J if she were placed in Ms. As care for extended periods.  Ms. C also
expressed reservations about Ms. As new partner who, in Ms. Cs view,
represented an uncertain, and potentially negative, influence on J at a time
when the family was in distress.

[17]

Ms. A denied that she currently had mental
health problems or that her past problems had the potential for placing J at
risk.  She relied on the evidence of her doctors in support of her position
that she was fully capable of being an equal parent to J in all respects.  She
stated that Ms. C and her family had made it very difficult for her to exercise
access following the separation, particularly since she had to travel from
Victoria, where the parties had been living until the separation, to Qualicum
Beach in order to exercise access.  She testified that she had taken a teaching
job in the Comox Valley in order to be closer to J and that her priority was to
fully participate in Js upbringing.

[18]

Ms. As new partner, who is also a teacher,
supported Ms. As plan to fully participate in Js life, and contradicted the
suggestion that Ms. A suffered from any mental health or other problems which
would place J at any risk in her care.

[19]

Ms As submission was that there should be joint
custody and access under an equal parenting arrangement.  She expressed serious
reservations about Ms. Cs willingness, and the willingness of Ms. Cs family
members, to support her as a co-parent and to permit her reasonable access if
sole custody were given to Ms. C.

[20]

Expert evidence was provided in the form of a
lengthy custody and access report authored by Dr. Korpach, who was examined on
her report at trial by counsel for both parties.  While that report was
consistent with a shared parenting regime being in Js best interests, it
favoured Ms. A if sole custody were to be granted to one of the parties.

2.

The Decision At Trial

[21]

The trial judge observed that the principal
issue before him was the best interests of J.  He stated, at para. 4, that this
issue was made more complicated by the very strong aversions that the parties
demonstrated during the trial.  Both parties seem very angry.  He attributed
Ms. Cs anger to the fact that Ms. A had chosen to break up their relationship
and their family.  He attributed Ms. As anger to Ms. Cs challenge to her
emotional and mental fitness to parent J. He, nonetheless, concluded, at para.
6, that both parents were qualified and fit to be full-time parents so long as
they can set aside their antipathies and act in the childs best interests.

[22]

The trial judge concluded that it was in Js
best interests to have maximum contact with both parents.  He expressed concern
about whether Ms. C and her parents would encourage, or readily facilitate, maximum
contact between J and Ms. A.  He expressed greater confidence in Ms. As
willingness to facilitate such contact between J and Ms. C.  He also found that
Ms. Cs fears about Ms. As emotional and mental stability if Ms. A were
granted extensive parenting rights were not justified, and that J would not be
at risk of harm in Ms. As care.

[23]

The trial judge observed that Ms. A had not been
fully candid with her personal doctors or with Dr. Korpach with respect to some
of her medical and other history. He was also critical of the extent to which
Ms. As counsel and Ms. A were involved in drafting the doctors affidavits,
and found that this seriously undermined the weight to be given to the doctors
evidence.  At para. 32, he concluded, however, that the doctors did not agree
with Ms. Cs counsel that learning of the [omitted] history required any
change in their opinion as to [Ms. As] current mental health status and the
risk of her falling again into a cyclical depression.  The trial judge also
rejected Ms. Cs suggestion that Ms. As new partner represented any risk to
Js well-being.

[24]

The trial judge reviewed in some detail each of
the parties positions with respect to the parenting arrangement which would be
in Js best interests.  In that regard, Ms. As submission mirrored, to a large
extent, the recommendations of Dr. Korpach.  Included in her submission
was a proposal that, as long as Ms. C was not working, she could have access to
J while Ms. A was working, rather than having J placed in daycare.

[25]

As earlier stated, the trial judge concluded
that the best interests of J would be served by a joint custody and
guardianship regime with J spending approximately equal time with each parent. 
He recommended that this regime be put in place as soon as possible, but not
later than June 30, 2009.  His conclusions in that regard are set forth at
paras. 88-91 of his reasons for judgment:

It is in Js best
interests that she have as much contact as possible with each parent.  They are
the two foremost adults in her life. The maximum contact principle set out in
s. 16(10) of the
Divorce Act
requires me to give effect to the principle
that J. should have as much contact with each parent as is consistent with the
best interests of the child.  That is best accomplished here by moving to an
equal shared parenting regime.  I must also consider and am satisfied that [Ms.
A] is willing to facilitate such contact.

Dr. Korpach expressed a concern
that [Ms. C] and her family might not willingly support the relationship
between [Ms. A] and J.  While I do not discount those concerns, I am satisfied
that they apply mainly to [Ms. Cs] father and brother.  So long as she sets
aside her anger over the failed relationship, [Ms. C] will better understand
and act on the need to facilitate contact.

In all the circumstances, I am
persuaded that it is in the best interests of J. that I order joint custody and
joint guardianship.

J.
is now three.  She should move to a shared living arrangement as soon as
possible.  I am satisfied that it is in the best interests of J. that she live
with each parent.  To that extent, I accept [Ms. As] long-term proposal.  The
practical question that arises is: When should the transition occur.

[26]

In the result, the trial judge rejected Ms. As
short-term plan whereby J would live with her five weekends out of six until
June 30, 2009 , but he accepted her long-term equal parenting plan.

[27]

The trial judges initial reasons with respect
to costs are contained at para. 109 of his reasons:

I am satisfied that this is an appropriate case to award costs. 
[Ms. A] was largely successful.  Assuming there was no formal Offer to Settle,
she is entitled to her costs calculated on Scale B.  She will have liberty to
apply if the parties cannot agree on the applicability of any formal Offer to
Settle.

3.

The Costs Decision

[28]

Both parties made offers to settle.  Ms. A made
a formal Offer to Settle on September 8, 2008 in terms similar to those
contained in Dr. Korpachs report and tracking the submissions made by counsel
for Ms. A at trial.  Ms. C made an offer to settle by letter dated October 10,
2008, which included joint custody and guardianship, but with conditions
attached, and with specified access to Ms. A until September 2009, at which
time the order would be reviewed.  Neither offer was accepted.

[29]

The parties made further submissions with
respect to costs.  The principal issue was whether the trial judge should award
Ms. A double costs given her success at trial.  A secondary issue involved
adjusting the original order of costs to take into account the fact that
counsel had succeeded in resolving some issues before trial and had agreed to share
the cost of Dr. Korpachs report.

[30]

As to costs generally, the trial judge referred
to the decision of this Court in
Gold v. Gold
(1993), 106 D.L.R. (4
th
)
452, 82 B.C.L.R. (2d) 180 (C.A.) which held that Rule 57(9) of the
Rules

of Court
applies to all civil proceedings, including family law
proceedings.  He referred to the discretion available to the trial judge under
Rule 57(9) and quoted from para. 20 of
Gold
which refers to some of the
factors the court could consider in declining to award costs to a successful
party, including hardship, earning capacity, the purpose of the particular
award, the conduct of the parties to the litigation, and the importance of not
upsetting the balance achieved by the award.

[31]

The trial judge then referred to a division of
opinion in the trial court about the principles governing any departure from
the general rule of costs in custody cases.  He set out the divergent streams
of authority at paras. 9-12 of his reasons for costs:

One line of
authority in this court, referred to as the Special Rules Cases by Judge
Martinson in
S.D.W. v. C.W.W.
, 2006 BCSC 162, at para. 2, holds that
child custody cases are unique in that there are no winners or losers in the
usual sense because the court is only considering the best interests of the
child.  Some of those cases, including two of my previous decisions:
Morrison
v. Morrison
, 2001 BCSC 909, and
P.E.P. v. D.W.P.
, 2004 BCSC 1590,
arose in mobility cases involving opposing parents, each of whom conducted the
litigation solely according to their legitimate and understandable perception
of the best interests of the child.

According to the above
authority, each parent should bear his or her own costs to avoid the
potentially chilling effect of a prospective adverse cost award for a parent
acting under an honestly held belief as to what is best for the child. 
[Further citations omitted]

The other line of authority,
referred to by Martinson J. in
S.D.W.
, as the Usual Rule Cases, holds
that the general costs rule applies to child custody cases in the same way that
it applies to all other family law proceedings under
Gold
.  [Further
citations omitted.]

Unfortunately,
this debate continues and likely will do so until the Court of Appeal rules on
the question in an appropriate custody case.  As I stated in
P.E.P.
, at
para. 8, I would prefer the Court of Appeal address the important question of
whether some child custody cases fall outside the general rule regarding costs
or within a recognized exception in
Gold
.  I need not address the
question further here as I am not persuaded that [Ms. C], the unsuccessful
party in the present case, was motivated solely by a genuine consideration of
the childs best interests.

[32]

The trial judge found that Ms. C resisted joint
custody and guardianship and shared custody for reasons that I attribute more
to her unhappiness at the breakdown of the parental relationship than to
legitimate concerns for the best interests of the child.  In the result, he
found no basis to depart from the usual rule that costs follow the event.

[33]

The trial judge then turned to the issue of
double costs.  He noted that the previous rule which had been in effect with
respect to offers to settle
, R. 37(26.1),
had been
repealed effective July 1, 2008 and replaced with R. 37B, effective July 2,
2008.  He observed that the previous rule had been interpreted to limit the
discretion to award double costs, whereas R. 37B, by its express terms,
provided a broad discretion as to whether to award double costs where there was
a successful offer to settle.  He stated that the first decision of the trial
court to apply R. 37B in the context of a custody dispute was
Chera v. Chera
,
2008 BCSC 1640 (upheld on appeal but without reference to costs, 2008 BCCA 374,
298 D.L.R. (4
th
) 462) where Josephson J. held that barring
egregious conduct, costs, including double costs, should not be awarded in
custody cases.  In so doing, Josephson J. made reference to similar language
employed by the trial judge in
P.E.P.
The trial judge expressed doubt
about the wisdom of restricting the awarding of double costs to cases involving
egregious conduct, but concluded that he was bound by the
Chera
decision.  He found that Ms. Cs conduct was not egregious and that, therefore,
Ms. A was not entitled to double costs.  He went on to state that, if he had
not been bound by
Chera
, he would have awarded Ms. A double costs for
preparation and trial.

4.

Further Orders

[34]

Following the release of reasons for judgment,
Ms. C filed a Notice of Appeal and sought an order staying the custody order
and the costs order pending appeal.  The trial judge dismissed the application
by order dated April 22, 2009.  At the request of Ms. C, that order also
provided that, before using third party daycare providers, Ms. A and Ms. C
would ask the other parent if she were available to care for J.  Ms. C
requested this order because Ms. A had registered J in a daycare without Ms.
Cs knowledge or consent and contrary to the recommendation made by the trial
judge in his original reasons for judgment.

[35]

In June 2009, Ms. C learned that Ms. A had
accepted a job in Victoria to commence in September 2009 and that A had enrolled
J in daycare there.  Ms. C had not been consulted or advised of Ms. As plans,
despite the fact that Ms. A had applied for the position in Victoria in
February 2009 and had been accepted in early April 2009.  Ms. A did not advise
the trial judge of these developments at the time of the stay application in
April.

[36]

By Notice of Motion dated July 29, 2009, Ms. C brought an
application to vary the first order based on a material change in circumstances,
namely, Ms. As imminent move to Victoria.  On August 1, 2009, Ms. A moved to
Victoria to take up the teaching position she had accepted in April and to proceed
with her plans for J to attend daycare there.

[37]

The parties were unable to get a date for a
hearing before the trial judge until September 28, 2009.  Pending the parties
return before the trial judge, Madam Justice Dorgan made an order on August 21
requiring Ms. A to produce documents relating to her change in employment and
her enrolment of J in daycare in Victoria, but adjourning the issue of changes
to the parenting regime to the trial judge.  Mr. Justice Metzger made a
further order dated September 14, 2009 suspending Js attendance at the new
daycare pending resolution of these issues by the trial judge.

5.

The Variation Decision

[38]

After hearing further evidence and submissions,
the trial judge made the variation order on October 7, 2009, on the basis of a
material change in circumstances and after taking into account the principles
applicable to parental mobility set forth in
Gordon v. Goertz
, [1996] 2
S.C.R. 27, 134 D.L.R. (4
th
) 321.  He stated that, at the time of his
first order, he had anticipated that Ms. C would be moving to Cumberland,
closer to where Ms. A was living at the time of trial, and he had structured
his first order accordingly.  He found that Ms. As move to Victoria was a
material change in circumstances which made the first order impracticable. 
Despite this change, he concluded that J would continue to benefit from
significant contact with both parents, but that equal parenting was not in Js
best interests because of the amount of time she would be in transit if an
equal parenting regime were continued.  As a result, he modified his earlier
order to provide, in effect, that J would spend two thirds of the time each
month with Ms. C and one third of the time with Ms. A.  This significantly
reduced the amount of travel time which would have been required under the
first order.

[39]

In his reasons for judgment, the trial judge was
critical of the fact that Ms. A had acted in breach of both the letter and
spirit of his earlier orders, including his order of April 22, 2009 requiring
each parent to give the other parent the opportunity to care for J before
placing J in third party daycare.  It is apparent from his reasons that he felt
he had been misled by Ms. A with respect to where she intended to live at the
time he made the first order.  Based on her conduct since then, he was no
longer persuaded that she was committed to ensuring positive contact between J
and Ms. C.  Despite his misgivings regarding Ms. As conduct, however, he
remained of the view that significant contact with both parents was in Js best
interests.

[40]

It is apparent that the trial judge contemplated
that his variation order would likely require further variation prior to J
commencing kindergarten in September 2010.  Both parties criticize the
short-term nature of his order in that respect as being contrary to Js best
interests.

ANALYSIS
OF THE ISSUES


1.
The
First Order

[41]

As earlier stated, Ms. C concedes that the first
order has been overtaken by the variation order with respect to the issues of
custody and access.  The correctness of the first order remains an issue for
her, however, since it is the basis of the trial judges initial order for
costs, and the foundation for Ms. As appeal relating to double costs.

[42]

The standard of review to be applied by this
Court with respect to the provisions of the first order relating to custody,
guardianship and access, is that set forth by the Supreme Court of Canada in
Van
de Perre v. Edwards
,

2001 SCC 60
,
[2001] 2 S.C.R. 1014, at
para. 11:

In reviewing the
decisions of trial judges in all cases, including family law cases involving
custody it is important that the appellate court remind itself of the narrow
scope of appellate review.  LHeureux-Dubé J. stated in
Hickey v. Hickey
,
[1999] 2 S.C.R. 518, at paras. 10 and 12:

[Trial judges] must
balance the objectives and factors set out in the
Divorce Act
or in
provincial support statutes with an appreciation of the particular facts of the
case.  It is a difficult but important determination, which is critical to the
lives of the parties and to their children.
Because of its fact-based and
discretionary nature, trial judges must be given considerable deference by
appellate courts when such decisions are reviewed.



There are strong
reasons for the significant deference that must be given to trial judges in
relation to support orders.  This standard of appellate review recognizes that
the discretion involved in making a support order is best exercised by the
judge who has heard the parties directly.
It
avoids giving parties an incentive to appeal judgments and incur added expenses
in the hope that the appeal court will have a different appreciation of the relevant
factors and evidence.
This approach promotes finality in family law
litigation and recognizes the importance of the appreciation of the facts by
the trial judge.  Though an appeal court must intervene when there is a
material error, a serious misapprehension of the evidence, or an error in law,
it is not entitled to overturn a support order simply because it would have
made a different decision or balanced the factors differently.
[Emphasis
added in
Van de Perre
.]

Hickey
involved the appellate review of
support orders, but the principles related to appellate review discussed
therein are equally applicable to orders concerning child custody.

[43]

In my view, the trial judge did not err in
ordering joint custody and guardianship of J and an equal parenting regime in
the first order.  He heard a considerable body of evidence in making that
order, including the evidence of an independent expert, Dr. Korpach.  Despite
what appears from the transcript to have been very effective cross-examination
of Ms. As doctors and Dr. Korpach, which revealed that Ms. A had not fully
disclosed her medical and other history to them, the trial judge was not
persuaded that Ms. A presented a risk to J if J should be placed in her care
for extended periods of time.  In other words, although the trial judge was
made aware of Ms. As non-disclosure, he found that her prior mental and
emotional history did not give rise to a significant concern regarding Ms. As
current parenting abilities or her capacity to be a fit and equal parent of J. 
In that respect, Ms. Cs concerns that Ms. A lacked the emotional or mental
stability to be a fit parent have not been borne out over time.

[44]

It is important to note that the trial judge
found that Ms. C was driven to a noticeable extent at trial by her anger at Ms.
A for breaking up the family, and that this anger may have clouded her
perception of Js best interests.  There was evidence, including that of Dr.
Korpach, to support that conclusion.  There was also evidence before the trial
judge that both Ms. C and members of her family, particularly her father, may
not assist in ensuring that J had positive and significant contact with Ms. A
if Ms. C were granted sole custody.  The trial judge was entitled to rely on that
evidence in determining the best interests of J.  The fact that this Court may
have accorded different weight to some of the evidence, or drawn different
conclusions from the evidence, is of no moment unless it is established that
the trial judge made errors of the type identified in
Van de Perre
.  I
am not persuaded that such errors have been established with respect to the
parenting aspects of the first order.

[45]

It is evident that there was a power struggle
between these two parents which the trial judge attempted to resolve in the
best interests of J by attempting to ensure a balance between them.  At that
time, he considered it more likely that Ms. A, rather than Ms. C, would
cultivate maximum and positive contact between J and her other parent.  As events
later transpired, he had reason to question his judgment in that regard.  In
the circumstances prevailing at the time of trial, however, I am not persuaded
that he erred in any significant respect in making the first order with respect
to custody, guardianship and access.  As is often the case in contested custody
matters, however, the circumstances giving rise to the first order have been
overtaken by subsequent events leading to the variation order.

[46]

I will address the variation order
before
turning to the issue of costs.


2.
The
Variation Order

[47]

Both parties challenge the variation order.  Ms.
C challenges it on the basis that the deception practised by Ms. A on herself
and on the court demonstrates that she could not, and cannot, be relied on to
act in Js best interests, and that the only reasonable variation in the
circumstances was an award of primary care in her favour with reasonable, but
more limited, access to Ms. A.

[48]

Ms. A submits that the trial judge erred by
reducing her time with J, and that he should have continued his order of equal
parenting, but modified it to provide that J spend alternate weeks with each
parent.  She submits that the variation order does not take proper cognizance
of the trial judges prior findings, including his finding that Ms. C and
members of her family would not facilitate a good relationship between J and
Ms. A.

[49]

Both parties submit that the trial judge erred
in effectively requiring them to return to court by the end of June 2010, with
attendant emotional and financial costs, in order to address custody and access
before J enters kindergarten next September.

[50]

Like the first order, the variation order made
by the trial judge must be approached by this Court with considerable
deference.  This is particularly so, since the trial judge has had the
continuous charge of the custody and access issues involving these parties over
the past two years, with the exception of two interim orders made in his
absence.  He is well-placed to gauge the most effective manner in which to
determine the best interests of J and to protect her relationship with both
parents.  That has been a very difficult task in this case since there is every
appearance that both parents have been constantly manoeuvring for position in
order to protect their own relationship with J.  In that respect, both parents
seem to have difficulty separating their own interests from Js interests,
resulting in an ongoing tug-of-war between them.  There is some indication,
particularly in the new evidence, that J is feeling the effects of this battle,
and she will undoubtedly suffer if her parents to do not find a way to change
their attitudes.  It is a sad commentary on the inability of these parents to
settle their differences that the court has been forced into the role of
referee.

[51]

It is apparent from his reasons for judgment in
the variation proceedings that the trial judge was very concerned about the
manner in which Ms. A had apparently shifted her position from one of promoting
contact between J and Ms. C to one of unilaterally and secretly imposing her
own view of Js best interests.  It is difficult to interpret her actions in
hiding her intended move from the Comox Valley to Victoria from the court and
from Ms. C during the stay application in April 2009, and her action in
unilaterally enrolling J in a daycare facility in Victoria, as anything other
than self-serving.  She took these actions in the face of a court order (in the
case of the daycare registration) and without any regard or respect for Ms. Cs
equal parenting rights.  I see in her actions an unfortunate consistency with
her earlier failure to disclose important information to her doctors and to Dr.
Korpach in order to avoid the possibility of unfavourable opinions from them. 
There is an element of bad faith in her actions which the trial judge found
troubling, and which he could not ignore in determining the extent to which she
is willing to act in Js best interests.

[52]

Despite his concerns with respect to Ms. As
conduct, however, the trial judge remained of the view that it was in Js best
interests to continue to have as much contact with each parent as the new
circumstances permitted.  It is again important to emphasize that he had the
benefit at trial of seeing and hearing the parties testify.  He also had the
benefit of Dr. Korpachs report and testimony. It is clear from that evidence
that J had significant bonds with both parents.  In making his variation order,
the trial judge endeavoured to preserve those bonds, but he was legitimately
concerned about the amount of travelling for J which would be required to
maintain an equal parenting arrangement.  For that reason, he rejected Ms. As
suggestion of alternate week parenting.  Instead, he arrived at a compromise
which would still give J large blocks of time with each parent, but which would
cut down on the amount of travel time.  It may not have been an ideal solution,
but the new circumstances were less than ideal for maintaining equally close
ties with both parents.  In my view, the new access regime pending Js entry
into kindergarten was a reasoned compromise between the positions then being
taken by Ms. C and Ms. A.

[53]

I am also satisfied that, in making his
variation order in relation to access, the trial judge had due regard for the
rights of both parents and that he weighed the relevant factors set out in
Gordon v. Goertz
(referred to at para. 11 and following of his reasons).  I
note that one significant factor informing his variation order was the need to
foster the developing relationship between J and her younger sibling, S, who
was in the sole custody of Ms. C.  That factor does not appear to have been
given much weight at trial because of the young age of the children.

[54]

In my view, the variation order made by the
trial judge is sustainable on appeal except in two respects.  Firstly, it is
apparent that the joint custody order has not worked.  The parties have not
been communicating effectively about Js care in many significant respects.  Ms.
As actions in moving to Victoria and registering J in daycare there in the
circumstances I have described are the most significant example of the
inability of the parties to work together in Js best interests.  There was
also a recent incident at Js daycare which caused general consternation due,
in large part, to ineffective communication between the parents.
The
optimism of the trial judge has not been borne out in practice.  (
That is not to say that he erred in ordering joint custody and
encouraging the parties to work through their differences in the first instance
 it was only time that made it clear that these parties were incapable of
cooperating to the extent necessary to maintain a joint custody regime.)

[55]

Secondly, I agree with both parties that the
trial judge should have made an order which would continue during Js entry
into kindergarten in September 2010 to avoid the necessity of the parties
returning to court.  The present order encourages the parents to continue their
search for failings in the other parent with a view to demonstrating that the
primary residence of J in September 2010 should be with one of them, rather
than the other.

[56]

In order to avoid the possible confusion that
may ensue if this Court simply varies the variation order, I would set aside
the variation order and substitute the following order:

(a)

Ms. C shall have sole custody and primary care of J.

(b)

Ms. C and Ms. A shall be joint guardians of Js person and estate on
the following terms:

(i)

In the event of the death of either parent, the
remaining parent will be the sole guardian of the person and the estate of J;

(ii)

Both parents will advise the other of any
significant matters affecting J;

(iii)

Ms. C will consult with Ms. A about all
important decisions concerning J, including health, education, and religious
instruction, with a view to reaching agreement, but, in the event the parties are
unable to agree, Ms. C is entitled to make the relevant decision (except that
Ms. A shall be entitled to make any decisions of an emergency nature while J is
in her care);

(iv)

Both parents shall have the right to request
information concerning J directly from third parties, including teachers,
counsellors, medical professionals, and third-party caregivers.

(v)

Ms. C shall inform Ms. A about all important
kindergarten, school and daycare activities which involve parent participation,
with a view to enabling both parents to participate, or share, in such
activities.

(c)

The parents will continue to have access to J on the basis of the
two thirds/ one third regime established by the trial judge in the variation
order up to June 30, 2010, with the pickups and drop-offs to be as stipulated
in that order.  Thereafter, the parents will share access in July and August in
two week blocks, with J to be with Ms. C for the last two weeks of August and
the first week of September up to and including September 9, 2010 (and to the
end of the first week of September in every year following) so that she can
ensure Js smooth transition into kindergarten or school.  Apart from that
period, Ms. A shall have first choice of summer holiday access in 2010 and the
parents shall alternate choice of summer holiday periods  every summer
thereafter.

(d)

Ms. A shall have access to J every second weekend commencing Friday,
September 10 after kindergarten until Sunday at 5 p.m., with Ms. A to pick J up
at kindergarten at the beginning of the access visit and drop her off at a
mutually agreed location in Nanaimo at the end of the access visit. If either
the Friday and/or Monday of Ms. As access weekend is a statutory holiday or
professional day for both Ms. A and J, Ms. As access shall be extended to
include the extra day or days.

(e)

Commencing as of September 13, 2010, Ms. A shall also be entitled to
exercise access one Sunday per month on a weekend when Ms. A does not have
access to J, from 10 a.m. to 6 p.m., with Ms. A to pick J up and drop J off at
Ms. Cs home.

(f)

The parents shall share equally Js Christmas
holiday period, such half to include Christmas Day in even years commencing
2010 and not to include Christmas Day in odd years, commencing 2011, with Ms. A
to have the first choice of Christmas holiday time in 2010.  Ms. A shall pick
up J at the beginning of the access visit and shall drop her off at a mutually
agreed location in Nanaimo at the end of the access visit.

(g)

The parents shall equally share Js spring break vacation period
with Ms. C to have the first choice of time in 2010 and in alternating years thereafter. 
Ms. A shall pick J up at the beginning of the access visit and shall drop her
off at a mutually agreed location in Nanaimo at the end of the access visit.

(h)

Each of the parents shall be entitled to make whatever third party childcare
arrangements they may consider appropriate when J is in that parents care and,
for greater certainty, Ms. A is not required to offer Ms. C the opportunity to
care for J when Ms. A is working.

(i)

Each parent will have reasonable and generous
telephone access to J when she is in the care of the other parent.

(j)

The parents may alter any of these access
arrangements by agreement.

(k)

The parties may agree to a third party or parties doing the pick-ups
and drop offs at the beginning and end of the access periods.  Such third parties
shall include Ms. Cs parent or parents and Ms. As current partner.

(l)

Ms. A will continue to pay child support to Ms. C, to be adjusted
in accordance with the Federal Child Support Guidelines, with liberty to either
party to apply to the Supreme Court for an order in the event the parents are
unable to agree on the appropriate amount.

[57]

In my view, this order gives effect to the trial
judges intention in the variation order that Ms. C should have primary care of
J, albeit with as much contact between Ms. A and J as is reasonable consistent
with Js best interests.  It takes account of the reality that it is not
possible to have both parents play an equal parenting role in light of their
inability to effectively communicate and Ms. As new living arrangements.

[58]

I would encourage the parties to have any
disputes regarding access dealt with in the first instance by a mutually agreed
upon third party, failing which, either of the parties may apply to the Supreme
Court to have the matter determined.


3.
Costs


(i)
Ordinary
Costs

[59]

I have summarized the trial judges decision with
respect to costs at paras. 27-33,
supra.
In summary, in his first order,
the trial judge awarded Ms. A costs of the trial.  In his subsequent costs
order, he clarified his first order by awarding Ms. A costs limited to
preparation for trial and excluding her costs for preparation of Dr. Korpachs
report.  He also stated that he would have ordered double costs except for his
conclusion that he was bound by a previous decision,
Chera
, which held
that double costs in custody and access trials should only be awarded against a
party whose conduct had been egregious.  Since he found that Ms. Cs conduct
had not been egregious, he did not award double costs.

[60]

An award of costs is essentially a discretionary
order and the standard of review to be applied by this Court is strict. One
statement of the standard of review is found in
Hamilton v. Open Window
Bakery Ltd.
, 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27, which states
that A court should set aside a costs award on appeal only if the trial judge
has made an error in principle or if the costs award is plainly wrong.

[61]

Counsel have suggested that this Court should
take the opportunity to clarify the extent to which the usual rule that costs
follow the event should be applied in custody and access cases.  This has been
the subject of considerable discussion in the B.C. Supreme Court as reflected
in the authorities summarized by the trial judge in this case and by Madam
Justice Martinson in
S.D.W. v. C.W.W.
, 2006 BCSC 162, 55 B.C.L.R. (4
th
)
101.

[62]

While it is apparent there are different
approaches to the issue of costs in matters of custody and access in the B.C.
Supreme Court, this Court has previously stated that the usual rule that costs
follow the event (that is, that the successful party is entitled to costs)
applies in matrimonial proceedings, subject to a discretion to refuse costs to
the successful party in certain circumstances.  The authority for that
proposition is
Gold
, in which this Court sat with five judges in order
to determine that question.  Although
Gold
was decided in the context of
a dispute concerning the division of assets, it has been applied by this Court
in several cases where issues concerning the custody of children were involved,
albeit in the context of costs of the appeal.  See, for example,
Karpodinis
v. Kantas
, 2006 BCCA 400,
Yassin v. Loubani
, 2007 BCCA 102, 67
B.C.L.R. (4
th
), and
Falvai v. Falvai
, 2009 BCCA 387, [2009]
10 W.W.R. 453.  (As noted in
S.D.W.
, the
Gold
approach to costs
in matrimonial matters also appears to be in keeping with the approach in other
provinces, including Alberta

and Manitoba.)  In my view, it is not open
to this division of the Court to re-open the debate and come to a different
conclusion than that expressed in the prior decisions of this Court.

[63]

The first question, therefore, is whether the
trial judge erred in awarding ordinary costs to Ms. A on the basis that she was
substantially successful in the result.  In particular, did the trial judge err
in finding that this case did not fit into any of the exceptions in
Gold
,
which permit a court to exercise its discretion to refuse costs to the
successful party.  As earlier stated, the court may refuse to apply the usual
rule as to costs on the basis of factors including hardship, earning capacity,
the purpose of the particular award, the conduct of the parties to the
litigation, and the importance of not upsetting the balance achieved by the
Court.

[64]

In this case, I find that the conduct of Ms. A,
in particular, and the importance of maintaining the balance achieved by the
court, were relevant factors in determining costs which were not adequately
dealt with by the trial judge.

[65]

In my view, the trial judge failed to appreciate
that the principal reason for the prolongation of the trial in relation to Ms.
As fitness to be an equal parent to J was attributable to Ms. A, rather than
to Ms. C.  It was Ms. A who failed to disclose relevant medical information to
her treating doctor and psychiatrist.  The doctors acknowledged during
cross-examination that the information they had not been provided by Ms. A was
relevant, although it did not affect their ultimate conclusion that she was
capable of equal parenting in relation to J.  As it turned out, because of the
way the doctors affidavits were prepared (which was only revealed through
effective cross-examination by Ms. Cs counsel), their evidence was given
little weight.

[66]

The trial judge was aware that the doctors had
been misled by Ms. As non-disclosure, but he does not appear to have placed
any significance on the fact that the deception practised by Ms. A was not
simply on the doctors, but on the court.  Ms. A was obviously concerned that
her past medical history would prejudice her ability to obtain an equal
parenting arrangement.  She chose to edit the information she made available to
her doctors, much in the same way she later chose to edit the information she
made available to Ms. C and to the trial judge with respect to her plans to
move to Victoria.

[67]

While more recent events have demonstrated a pattern of behaviour
on the part of Ms. A that reflects a lack of candor, not only with Ms. C, but
also with the court, the evidence of Ms. As willingness to obscure relevant
information in order to place herself in the best possible light was there to
be seen at the time of trial.  In the circumstances, I find it difficult to see
how competent counsel had any choice but to bring Ms. As repeated
non-disclosure to the attention of the court so that the decision as to the
care of J could be made on the facts. In my view, Ms. As
lack
of candour with the doctors and, through them, with the court, is relevant
conduct which should have been taken into account by the trial judge in making
his award of costs, in accordance with one of the exceptions to the usual rule
concerning costs discussed in
Gold
.

[68]

I am also satisfied that the trial judge erred
in failing to recognize that an award of costs against Ms. C would have the
likely, and unintended, effect of forcing Ms. C, J and S out of their home in
Cumberland.  In that respect, the Court was advised that the estimated amount
of Ms. As costs is $60,000.  Ms. Cs equity in her home is approximately
$35,000.  Even if she increased her hours at work, it is unlikely she would be
able to retain her home.  Although Ms. A does not own her own home, she is
sharing a home in Victoria with her present partner and is earning a
substantially higher salary than is Ms. C.

[69]

There have been many transitions for J in the
last three years.  The latest is Ms. As move to Victoria.  To the extent that
the award of costs would require her to sell her home and move once again, I am
satisfied that it would unduly upset the balance which the trial judge found
was essential to Js best interests.

[70]

In my view, in the rather unusual circumstances
of this case, the trial judge overlooked, or underestimated, significant
factors in his award of costs.  Taking these factors into account, I find that
the appropriate order in this case would be one requiring each party to bear
her own costs of the trial.


(ii)
Double
Costs

[71]

Because I have concluded that each party should
bear her own costs of the trial, I do not find it necessary to go on to
consider the issue of double costs.  That issue will have to await another day
in this Court.


(iii)
Costs
of the Appeals

[72]

I would award Ms. C costs of all three appeals. 
Although the first appeal was effectively moot with respect to the issues of
custody and access, it was necessary to engage in a full analysis of those
issues in relation to the issue of costs.

DISPOSITION

[73]

I would dismiss the appeal from the first order
with respect to custody and access on the basis that it has been rendered moot
by the variation order.  I would allow the appeal from the first order with
respect to costs and substitute an order that each party bear her own costs of
the trial.

[74]

Having concluded that each party should bear her
own costs of the trial, I would dismiss Ms. As appeal from the order refusing
her double costs.

[75]

I would allow Ms. Cs appeal from the variation
order.  I would set aside that order and substitute the provisions set forth in
paras. 56 and 57 of these reasons for judgment.

The Honourable
Madam Justice Prowse

I Agree:

The
Honourable Chief Justice Finch

Reasons for
Judgment of the Honourable Mr. Justice Mackenzie:

[76]

I have had the opportunity to read in draft the
reasons for judgment of Madam Justice Prowse.  I agree with the result and the
reasons, with one qualification on the issue of costs.  My colleague gives two
alternative grounds for overturning the trial judges award of trial costs to
Ms. A and directing that each party bear their own costs of trial.  I would
prefer to limit the reasons for varying the costs order to the second ground as
stated by my colleague.

[77]

The trial judge concluded, at para. 23 of his
supplemental reasons on costs, that the trial was prolonged by Ms. Cs anger
towards Ms. A over the break-up of their relationship.  That anger resulted in
an attack on Ms. As fitness as a parent and her mental stability.  The trial
judge concluded that Ms. Cs accusation that Ms. A was not a fit parent
was unfounded.  As I read his reasons, he attributed the prolonged trial to Ms.
Cs misguided effort to pursue that allegation against the best interests of
the child and he awarded costs of the trial to Ms. A on that ground.  Ms. As
dissembling was apparent to the trial judge and he was in the best position to
judge its importance at the trial in the context of the issues and the trial
dynamics.  I am not persuaded that he made any reviewable error in his
assessment that it was pursued at inordinate length in a failed effort to
undermine Ms. As parental fitness.

[78]

The second ground involves the impact of a costs
order against Ms. C on the best interests of the child.  As my colleague has
noted, a costs order would likely require Ms. C to sell her home and move.  The
resulting disruption and reduced family circumstances would have a negative
effect on the child.  This implication of the costs order has come to the fore
largely as a result of post-trial developments and was not emphasized before
the trial judge.  I therefore agree that the costs order should be varied as
directed by my colleague on the ground that the variation is required in the
best interests of the child.

The
Honourable
Mr. Justice Mackenzie


