



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Barendregt v. Grebliunas,









2021 BCCA 11




Date: 20210113

Docket: CA46634

Between:

Ashley Suzanne
Barendregt

Respondent

(Claimant)

And

Geoff Bradley
Grebliunas

Appellant

(Respondent)




Before:



The Honourable Madam Justice Newbury

The Honourable Madam Justice DeWitt‑Van Oosten

The Honourable Mr. Justice Voith




On appeal from: An
order of the Supreme Court of British Columbia, dated December 18, 2019 (
Barendregt
v. Grebliunas
, 2019 BCSC 2192, Smithers Docket E18295).




Counsel for the Appellant (via videoconference):



G.A. Lang





Counsel for the Respondent (via videoconference):



G.E. Greene





Place and Date of Hearing:



Vancouver, British Columbia

October 8, 2020





Place and Date of Judgment:



Vancouver, British
  Columbia

January 13, 2021









Written Reasons by:





The Honourable Mr. Justice Voith





Concurred in by:





The Honourable Madam Justice Newbury

The Honourable Madam Justice DeWitt‑Van Oosten








Summary:

The judge granted the
respondent primary residence of the parties two children and allowed her to
relocate with the children from the Okanagan to the Bulkley Valley. The judge
relied on two primary considerations in favour of the move: the financial
situations of the parties and their relationship with each other. The appellant
applies to adduce new evidence of his financial situation on appeal. Held: Appeal
allowed. It is in the interests of justice to admit the new evidence as it
displaces the trial judges concerns about the parties financial positions and
the appellants ability to remain in the family home in West Kelowna. The
remaining circumstances indicate that the best interests of the children would
be served by the children returning to the Okanagan under a shared parenting
regime.

Reasons for Judgment of the
Honourable Mr. Justice Voith:

[1]

This appeal arises out of a family law action that addressed various
issues. The only aspect of the order that is appealed granted the respondent
primary residence of the parties two children and allowed her to relocate with
the children from West Kelowna to Telkwa in the Bulkley Valley of northern British
Columbia. West Kelowna and Telkwa are approximately 1,000 kilometres apart. The
outcome of this appeal turns on two questions: first, whether new evidence
filed by the appellant should be admitted; second, with that new evidence, and
accepting the trial judges findings, what is in the best interests of the
children.

Background

[2]

The parties met in Smithers, British Columbia, in the summer of 2011.
The appellant, Mr. Grebliunas, moved to Kelowna in early 2012. He was
joined by the respondent, Ms. Barendregt, in December 2012. The parties
married in March 2013. At the time, Mr. Grebliunas was 21 years old and Ms. Barendregt
was 19 years old. Their first son, K., was born in May 2014. Their second son,
M., was born in January 2016.

[3]

Each of the parties was employed during the marriage and they had almost
always shared parenting duties. Mr. Grebliunas was trained as a carpenter,
but he had, some years prior to the trial, obtained employment at a local
sawmill. Ms. Barendregt was employed in various janitorial positions.

[4]

The parties separated on November 14, 2018. This was precipitated by an
argument that, Ms. Barendregt alleged, escalated into Mr. Grebliunas
assaulting her. Mr. Grebliunas denied any such assault. Ms. Barendregt
took both her sons back to her parents home in Telkwa. She commenced a family
law action on November 26, 2018. The parties pleadings, insofar as they
related to custody or parenting issues, relied on both the
Divorce Act,
R.S.C.
1985 c. 3 and the
Family Law Act
, S.B.C. 2011, c. 25. Mr. Grebliunas
continued to live in the family home that the parties had purchased in 2013 and
that was located in West Kelowna (the Family Home).

[5]

As a result of an interim order made on December 18, 2018, Ms. Barendregt
and Mr. Grebliunas began three‑week periods of alternating parenting
time between Telkwa and West Kelowna respectively. That order was varied on
March 27, 2019, and provided for the children to be returned to the Okanagan
area, with Mr. Grebliunas to have interim primary residence, and for the
parties, once Ms. Barendregt returned to the Okanagan, to have alternating
weekly custody. The order further provided that Mr. Grebliunas would
subsidize Ms. Barendregts rent for up to one year upon her making that
move.

[6]

The children returned to West Kelowna to live with their father in the
Family Home on April 27, 2019. Mr. Grebliunass mother moved down from
Smithers to help him care for the children. Ms. Barendregt did not return
to the Okanagan and she continued to live with her parents. She did, however,
care for the children for the month of August 2019 in Telkwa.

The Trial

[7]

The trial of the action was heard for nine days commencing in late
October 2019. The central issue at trial was where the parties two children
would reside. The reasons of the trial judge also addressed issues of spousal
and child support and property division. Those reasons for judgment are indexed
at 2019 BCSC 2192.

[8]

The trial judge considered that a disproportionate amount of time at
trial was spent hearing evidence concerning particular incidents during the
marriage and post-separation. His impression was that neither party was
entirely honest and forthcoming as to these incidents. As to those specific
matters of past conduct that were relevant, and where he was able to make
findings in the face of conflicting testimony, he was in general far more
persuaded by the testimony of Ms. Barendregt. He considered that both
parties were good parents. He further commented that he had no expert opinion
evidence as to the means and abilities of the parties to parent the children,
nor as to the positive or negative consequences of the proposed relocation.

[9]

After a review of the relevant authorities, he compared the relative
advantages of the two scenarios that were advanced by the partiesthe children
living primarily with their mother in Telkwa, or parenting being shared in the
Okanagan.

[10]

Notwithstanding the various constraints in the evidence he had identified,
he concluded that there are two issues arising from the evidence that
significantly impact my analysis of the childrens best interests.  The first,
although the less significant of the two, is the parties financial situation,
particularly as it pertains to the house.

[11]

The trial judges concerns, in relation to the Family Home, were largely
tied to the parties finances. His comments and conclusions in relation to the
Family Home are interspersed throughout the judgment and occupy a significant
part of the judgment.

[12]

The parties purchased the Family Home in June 2013. The house was in
poor condition and the parties hoped that Mr. Grebliunas would be able to
renovate it using his carpentry skills. Shortly after the parties moved into
the Family Home, they had an electrical fire in an interior wall space. They
also discovered an issue with a rodent infestation. As Mr. Grebliunas
renovated the Family Home, they uncovered still further difficulties.

[13]

The trial judge found that Mr. Grebliunas worked on various
projects, often assisted by friends with carpentry and electrical skills, as he
was able. He accepted that the renovation of the Family Home had been an
ongoing construction project. The first project Mr. Grebliunas finished
was the childrens bedroom, which was clean, bright, and well insulated. He
renovated the upstairs bathroom over the course of several years. The kitchen
had been torn out in 2015 and, at the time of the trial, it still did not have
proper kitchen cupboards, sufficient counter space, or a functioning sink.

[14]

The trial judge concluded that the parties had struggled to make ends
meet. The Family Home had originally been purchased for $252,000 and had been
financed with a mortgage of $238,750. By September 2019, on account of various
reasons, including much‑needed renovation to the house and the purchase
of a new truck, the parties owed $260,100 on their mortgage and a further
$73,500 on a line of credit, for a total of $333,600.

[15]

At trial Mr. Grebliunas testified that he had, since the parties
separation, been working on the renovations at an accelerated pace, using his
credit cards and borrowing more on the line of credit. Importantly, he also
gave evidence in relation to his future plans for the Family Home. This plan had
two components.

[16]

First, Mr. Grebliunas proposed to have his parents give him
$152,000 for a half interest in the Family Home. He planned to use a part of
those monies to pay contractors. He also accepted that he would have to obtain
refinancing to pay out Ms. Barendregts interest in the Family Home.

[17]

Mr. Grebliunass father, who also gave evidence, testified that he
too was prepared to move from Smithers to the Okanagan to live with his wife,
son, and grandsons. He had spoken to his banker in Smithers and to a bank in
West Kelowna shortly before the trial about buying either a half interest in
the Family Home or purchasing it outright. He said that he and his wife had
equity of $387,000 in their home in Smithers and that they had a line of credit
for $90,000.

[18]

The trial judge also had an appraisal report and evidence of Mr. Roworth,
an appraiser who was called by Mr. Grebliunas. Though the Family Home had
a current assessed value of $490,000, Mr. Roworth fixed the value of the
Family Home at $303,000. Mr. Roworth accepted that the renovation costs
could be lower than his estimate. He also accepted that the work done to date
by Mr. Grebliunas had added some value and, for the purposes of estimating
depreciation, the work had lowered the Family Homes effective age to some
extent.

[19]

Mr. Roworth further expressed the opinion that obtaining financing
in the current market would be difficult. He estimated that the Family Home had
an effective remaining life of 24 years, and that in the current lending
environment a bank would likely deduct five years from that figure, meaning
that any mortgage loan could only be amortized over 19 years. This would, in
turn, further limit the propertys market value.

[20]

The trial judge expressed concern that he had no evidence from any bank
of a willingness to refinance given the current state of the Family Home. He
expressed this concern in relation to the evidence given by both Mr. Grebliunas
and by his father. He expressed a further concern about Mr. Grebliunass
father having waited until the eve of trial to make inquiries about financing.
He noted that Mr. Grebliunass father was equivocal about whether he was
prepared to offer any more than the amount of the debt on the Family Home.

[21]

The second component of Mr. Grebliunass plan, which is somewhat
related to the first component, had him hiring contractors to finish the work
on the Family Home. He believed that that work would cost approximately
$70,000. His father considered that a figure of $75,000 was likely on the high
side. Neither had prepared a detailed budget or had any written estimates for
the work that remained outstanding.

[22]

Based on the whole of this evidence the trial judge said:

[39]      Whether any of the financing options Mr. Grebliunas
Sr. and his son have discussed are practicable is an open question. Mr. Grebliunas
plan to continue living in the house with the boys is, for all practical
purposes, entirely dependent on the willingness and ability of his parents to
pay off the mortgage and the debt on the line of credit secured by the home,
and finance the remainder of the renovations. As of the date of trial, this all
seemed uncertain. Absent such financial support from his parents, Mr. Grebliunas
does not have the means to buy out Ms. Barendregts interest in the family
home and complete the renovations; it seems plain from the parties testimony
that they struggled to make ends meet while they were together, and Mr. Grebliunas
offered no plan for how, were both parties to remain in the Okanagan, he could
afford to take on additional debt while at the same time having obligations to
pay spousal and child support.

[40]      In summary, the
parties financial position means that the possibility of Mr. Grebliunas
being able to remain in the house, and possibly even being able to remain in
West Kelowna, are less than certain.

[23]

The trial judge described the second dominant issue that he identified
as the relationship between the parties, and the implications it has for the
children. He further concluded:

[42]

There
is therefore, I find, compelling evidence of Mr. Grebliunas continuing
animosity towards Ms. Barendregt. Three concerns arise from this evidence:

a)

First,
I find it more likely that Ms. Barendregt will work to promote in the
children a positive attitude toward their father, than the converse. This
factor weighs strongly in favour of the childrens best interests being
promoted through Ms. Barendregt having primary residence;

b)

Second,
if the parties remain in close proximity, there is a greater risk 
difficult, if not impossible, to quantify, but still significant  of
continuing conflict between the parties spilling over and directly impacting
the children; and

c)

Third, even if the parties
were never to engage in open conflict or derogatory behaviour in the presence
of the children, I find it doubtful that they will be able, in the near future
at least, to surmount the emotional issues between them and work co‑operatively
to promote the childrens best interests, which optimally is one of the desired
outcomes of a shared parenting structure.

[24]

Finally, witnesses at trial had described Ms. Barendregt as
someone who needed to be taken care of and as both stressed and
overwhelmed when taking care of her children. The trial judge said:

[44]       These glimpses seem consistent with Ms. Barendregt
having a need for emotional supports that were not available to her during the
marriage and would not be available to her in Kelowna. The emotional weight of having
to establish a new life on her own, of learning to parent independently, and
possibly of having to continue to cope with the emotional outfall of continuing
close contact with Mr. Grebliunas should she remain in the Okanagan, all
weigh in favour of a move. So does the factor of the support that will be
available to her from the family should she further her education.



[46]      I find the present case
is likely one where the children would at least indirectly benefit from their
mother residing in Telkwa, in addition to directly benefiting from close
contact with their maternal grandparents and Ms. Barendregts siblings. It
is also likely the case that they would at least suffer indirectly to some
degree if their mother remained in the Okanagan.

[25]

The trial judges ultimate conclusion was thus based on his concerns
about the Family Home and other financial issues, together with his concern
over Mr. Grebliunass interactions with Ms. Barendregt and her need
for some support. He ordered that Ms. Barendregt be awarded primary
residence of the children in the Bulkley Valley. He granted Mr. Grebliunas
parenting time at various specific times of the year.

The New Evidence

a)

The Content of the New Evidence

[26]

Mr. Grebliunas filed an appeal. That appeal was heard. At the conclusion
of the hearing of the appeal, counsel for Mr. Grebliunas stated that she
had just received material indicating that the Family Home had been refinanced
by Mr. Grebliunas and that he had purchased Ms. Barendregts interest
in the Family Home. The Court permitted counsel for Mr. Grebliunas to file
these materials and to make a new evidence application. It also permitted
counsel for Ms. Barendregt the opportunity to respond to that application.

[27]

In his new evidence affidavit, Mr. Grebliunas deposes:

2.         In
order to comply with the order of the trial judge I took steps to pay out the
respondent for her interest in the family property, including our former family
home in West Kelowna.

3.         I sold
a one‑half interest in the home to my parents, Kelly and Heather
Grebliunas, who now hold one‑half of the home in joint tenancy. The three
of us refinanced the home and obtained a mortgage from the Royal Bank of
Canada.

4.         The
completion and possession date for the transfer of the home was October 8,
2020.

5.         As a
result of the refinancing and thirty year amortization, my mortgage payment is
reduced from $1,930 a month to $1,186 a month.

6.         My
parents also increased their personal line of credit by $100,000 to facilitate
the completion of renovations on the home.

7.         Since the trial date I have
renovated the bathroom and the master bedroom. Ive also contracted with
Norelco to complete the kitchen renovation. Attached hereto and marked Exhibit
A is a copy of the drawings from Norelco for the kitchen renovation.

[28]

Mr. Grebliunas attached a number of further documents to his
affidavit. This included a copy of the RBC line of credit facility that his
parents had obtained, documents that were relevant to the transfer of the
Family Home between Mr. Grebliunas and his parents, the mortgage that had
been obtained by Mr. Grebliunas and his parents, and the relevant
Statement of Adjustments and Property Transfer Tax Form. It also included
correspondence between counsel representing Mr. Grebliunas and Ms. Barendregt
with respect to the agreement of the parties on the terms of the purchase of Ms. Barendregts
interest in the Family Home, as well as payment to her on account of her
interest in a truck the parties had owned.

b)       The Relevant Legal Framework  Admissibility of the New Evidence

[29]

There is a material difference between new evidence and fresh evidence.
The former is evidence that was not in existence at the time of trial but has
arisen as a result of events or matters that transpired subsequent to trial.
The latter is evidence that existed at the time of the trial but was not
adduced at that time:
Hellberg v. Netherclift
, 2017 BCCA 363 at para. 53
[
Hellberg No. 1
];
Jens v. Jens
, 2008 BCCA 392 at para. 24;
Struck v. Struck
, 2003 BCCA 623 at para. 37;
Scott v. Scott
,
2006 BCCA 504 at para. 22.

[30]

The admissibility of fresh evidence is subject to the well‑established
test in
Palmer v. The Queen
, [1980] 1 S.C.R. 759 at 775. Notwithstanding
some periodic imprecision in the use of language, this Court has on a number of
occasions noted that new evidence is not subject to the
Palmer
test: see
Fotsch
at paras. 1920;
Korol (Re)
, 2014 BCCA 380 at para. 36;
Jens
at para. 29.

[31]

Having said this, this Court has at times considered whether the new evidence
would change the result at trial or could reasonably be expected to do so. This
consideration is one of the factors in
Palmer
. The following are
mobility cases where the Court applied this consideration to new evidence:
Hellberg
No. 1
at para. 57;
Hellberg v. Netherclift
, 2018 BCCA 404 at
para. 36;
R.E.Q. v. G.J.K.
, 2012 BCCA 146 at para. 66.

[32]

New evidence is admitted in rare or exceptional circumstances: see
Animal
Welfare International Inc. v. W3 International Media Ltd.
, 2015 BCCA 148 at
para. 10 and
Fotsch
at para. 20, respectively. In
Jens
at para. 29, the Court used rare and exceptional interchangeably.

[33]

This high standard is on account of the importance of certainty and
finality in trial judgments:
Fotsch
at para. 21;
Struck
at para. 37.
Nevertheless, it is contrary to the interests of justice to have a decision
that is inconsistent with the known facts:
Jens
at para. 30;
Animal
Welfare
at para. 12;
Island Savings Credit Union v. Brunner
,
2014 BCCA 449 at para. 25.

[34]

One recognized exceptional circumstance, where new evidence may be
admitted, was described by the Court in
Fotsch
:

[21]      Circumstances which
might permit the admission of new evidence include where the judge made
assumptions about future events but new evidence establishes those assumptions
to be incorrect. See
North Vancouver (District) v. Lunde
, (1998), 60
B.C.L.R. (3d) 201 (C.A.) at paras. 25-26.

[35]

In
United States of America v. Wilson
, 2010 BCCA 85 at para. 34,
the Court described this assumption category as the main exception to the
general inadmissibility of new evidence on appeal.

[36]

The question becomes what the word assumption, within this context, means.
The primary meaning given to the word assume in the
Concise Oxford English
Dictionary
, 11th ed, revised, is to accept as true without proof.

[37]

There are two difficulties with applying this lay, or dictionary, meaning
to the test for admitting new evidence. First, a conclusion that is accepted by
a trial judge as true without proof would in most instances be inherently
problematic. It would not be necessary to adduce new evidence to address such a
concern.

[38]

Second, as a practical matter, this is not how the word assumption is generally
used in the authorities that address this issue. In most cases, trial judges
have made decisions based on the evidence before them. The new evidence, which
is filed on appeal, reveals that there has been a change in circumstances. The
judges, however, made no assumptions, but rather based their decisions on the
evidence before them. See, e.g.,
Garcia v. Tahoe Resources Inc.
, 2017
BCCA 39;
Stav v. Stav
, 2012 BCCA 154.

[39]

In
North Vancouver (District) v. Lunde
(1998), 60 B.C.L.R. (3d)
201 (C.A.), a decision that is often referred to, this Court limited the scope
for admitting new evidence. It was in this case that the language of an
assumption, in the context of admitting new evidence, seems to have first
emerged. Justice Lambert, for the Court, rejected the appellants new evidence
motion and said:

25        Of course, this evidence does not meet the usual
rules for the introduction of fresh evidence. It was not in existence when the
summary trial was held and so could not have affected the summary trial.
However, it is sought to be admitted under the rule applied in
Cory v. Marsh
(1993), 77 B.C.L.R. (2d) 248 (B.C. C.A.) on the basis that the fresh evidence
"falsified" the trial judgement.

26        In my opinion the rule
in
Cory v. Marsh
applies only in relation to the situation where the
trial judge made assumptions about future events in order to calculate damages
or for some other reason, and then, before an appeal was heard, the trial judge's
assumptions are shown by the course of events to be or to have become
incorrect. See also
Knutson v. Farr
(1984), 55 B.C.L.R. 145 (B.C. C.A.)
and
Christie (Guardian ad litem of) v. Insurance Corp. of British Columbia
(1993), 79 B.C.L.R. (2d) 370 (B.C. C.A.). I do not think it is a general rule
that evidence of new events which change the factual circumstances is permitted
to be given and permitted to have some kind of retroactive legal applicability
requiring this Court to apply different laws to different facts than those
which confronted the trial judge.

[40]

The concept of an assumption having been rendered inaccurate has been
expressed in various ways. In
Garcia
, the Court said that the new
evidence casts serious doubt on the conclusion of the chambers judge, and that
the facts relied on by the chambers judge had been a significant, if not
pivotal, point in the judges decision to grant a stay: at para. 61. The
Court commented that the new evidence goes to the very underpinnings of the
order under appeal and is likely to have affected the outcome: at para. 64.
Because circumstances had not unfolded as expected, contrary to the assumption
made by the judge, the Court considered the evidence should be admitted: at para. 66.

[41]

In
Animal Welfare
at para. 12, the Court said that the new
evidence revealed that the situation of the parties has been fundamentally
altered since the hearing of the application and concluded that it was in the
interests of justice to admit the new evidence.

[42]

In
Stav
at para. 103
,
the Court determined that the
new evidence revealed the trial judges understanding of the parties financial
situations was unfounded, thus, significantly undermining the significance the
trial judge placed on it in making her decision.

[43]

Accordingly, depending on the circumstances, new evidence may be
admitted if it establishes that a premise or underpinning or understanding of
the trial judge that was significant or fundamental or pivotal has been
undermined or altered.

[44]

Apart from these descriptions of the threshold criteria that are
pertinent, further considerations are relevant. New evidence has been admitted
in different kinds of cases. Two sets of circumstances, which intersect in this
case, are relevant.

[45]

First, in
Animal Welfare
, the Court observed that [e]vidence of
material alterations in the parties financial positions has occasionally been
sufficient to meet the test for the admissibility of new evidence: at para. 10.
In that case, a justice of this Court, in chambers, had dismissed the appellant
companys application for a stay of execution of the trial judgment pending
appeal. The appellant had sought a stay to prevent the sale of the companys equipment
on the basis that it required that equipment to continue operating. The
appellant applied to a division of this Court to discharge or vary the chambers
judges order. On that application, the respondents sought, and were allowed,
to adduce new evidence indicating that the preservation of the appellants
assets for use by a related third party had removed any threat of irreparable
harm to the appellant. The Court accordingly dismissed the appellants
application.

[46]

Similarly, in
Island Savings Credit Union
, a master had granted a
one‑month redemption period on an Order
Nisi
of foreclosure. This
was predicated on a lack of equity in the properties based on appraisal
evidence put before the master by the respondent: at para. 25. At the
hearing of the petition, the master had denied the appellants an adjournment so
that they might obtain further appraisal evidence. On appeal, the appellants
sought, and were permitted, to adduce new appraisal evidence that established
the properties were worth almost double the appraised value the respondent had
proffered and that the master had relied on. The Court considered that it was
in the interests of justice to allow the new evidence to be adduced, and it
remitted the matter back to the Supreme Court: at paras. 2526. See also
Korol
(Re)
at paras. 3839 for a further illustration of these principles in
this context.

[47]

Second, it is recognized that both new evidence and fresh evidence may be
admitted more flexibly in family cases:
Stav
at para. 31;
Jens
at para. 30;
Luney v. Luney
, 2007 BCCA 567 at para. 31.

[48]

The broad category of family cases has been further refined to cases
where the best interests of children are concerned:
Stav
at para. 31;
Fotsch
at para. 20. And it has been further refined to include
cases where the refusal to admit new evidence might lead to long‑term
injustice:
Jens
at para. 34; see also
Levin v. Levin
(1996),
84 B.C.A.C. 73 at para. 12 (C.A.);
Shabaga v. Shabaga
(1992), 75
B.C.L.R. (2d) 128 at para. 15 (C.A.). A relocation case is likely to
engage each of these various considerations. Furthermore, the overarching
consideration of what is in the interests of justice may have particular
resonance in a relocation case.

Standard of Review

[49]

The standard of review applicable to the trial judges findings and
conclusions was addressed by Madam Justice D. Smith in
Fotsch v. Begin
,
2015 BCCA 403:

[66]      It is well established that an appellate court may
not interfere with the exercise of discretion of a trial judge in the absence
of a demonstrated material error of law or fact, a serious misapprehension of
the evidence, or a decision that is clearly wrong. See
Van De Perre v.
Edwards
, 2001 SCC 60 at paras. 14-15;
Falvai v. Falvai
, 2008
BCCA 503 at para. 18; and
R.E.Q. v. G.J.K
., 2012 BCCA 146 at para. 33.
On appeal, matters must be reviewed as they stood at the time of trial (
Scott
at para. 25) or there would be no finality to the litigation. An appellate
court is not a court of second instance.

[67]      The parameters of this Courts jurisdiction to interfere
with an order in a family matter was helpfully summarized by Madam Justice
Newbury in
R.E.Q. v. G.J.K.
at para. 33:

The Supreme Court of Canada has said that the standard of
review is a high one, i.e., that in family cases as elsewhere, an appellate
court may not interfere with the exercise of discretion of a trial judge in the
absence of a material error (including a significant misapprehension of the
evidence, the trial judges having gone wrong in principle or [his] final
award [being]  clearly wrong): see
Moge v. Moge
[1992] 3 S.C.R. 813,
at 832; and
R.M.S. v. F.P.C.S.
2011 BCCA 53 at para. 43, citing
Hickey
v. Hickey
[1999] 2 S.C.R. 518 at para. 12 and
Van de Perre v.
Edwards
2001 SCC 60 at paras. 14-5. In the latter case the Court
wrote:

Second, an appellate court may only intervene in the
decision of a trial judge if he or she erred in law or made a material error in
the appreciation of the facts. Custody and access decisions are inherently
exercises in discretion. Case-by-case consideration of the unique circumstances
of each child is the hallmark of the process. This discretion vested in the
trial judge enables a balanced evaluation of the best interests of the child
and permits courts to respond to the spectrum of factors which can both positively
and negatively affect a child. [At para. 13].

Thus the authorities make it clear that
it is not for an
appellate court to re‑weigh the evidence or to interfere on the basis
that the appellate court would give more weight than the trial judge did to one
factor or another  or, in the words of the Court in
Hickey
, that it
would have balanced the factors differently.

[Emphasis added.]

Analysis

[50]

The foregoing legal framework supports the admission of the new evidence
Mr. Grebliunas relies on. The evidence speaks to the financial
circumstances of the parties and it arises in the context of a family case
where the long‑term best interests of the parties two children are
directly engaged.

[51]

The new evidence that Mr. Grebliunas seeks to adduce is cogent and
material. It directly addresses one of the two primary underpinnings of the
trial decision and it goes to the core of the judges analysis. Most of the
critical assumptions on which this aspect of the trial judgment rests have
been shown, by subsequent events, to be incorrect. Indeed, the new evidence
establishes that Mr. Grebliunas has done almost exactly what he originally
testified he intended to do. He has sold a half interest in the Family Home to
his parents. He did so for the very price he had planned to. The Family Home
has been refinanced with a bank. He has paid Ms. Barendregt her half
interest in the Family Home. He has continued to renovate the Family Home, on
an accelerated basis, and he has hired third party contractors to do aspects of
that work. Finally, though this issue was not addressed in the trial judgment,
refinancing the Family Home has increased the amount of disposable income that
he has available to him on a monthly basis.

[52]

Counsel for Ms. Barendregt raises two primary issues in opposing
the admission of the new evidence. The first is that this new evidence might,
with reasonable diligence, have been available to Mr. Grebliunas at trial.
There are two difficulties with this submission. First, it relies on one of the
conditions found in
Palmer
, that being the question of whether the
evidence in question could, with reasonable diligence, have been made available
at trial. Indeed, the written submissions of counsel for Ms. Barendregt
expressly rely on the
Palmer
criteria. However, the
Palmer
conditions do not, as I said earlier, strictly govern the admission of new
evidence.

[53]

Second, this submission is only partly accurate. It may be that Mr. Grebliunas,
or his father, could or should have secured some sort of commitment letter from
a bank dictating the terms on which that bank would offer financing in relation
to the Family Home. The reality, however, is that such a commitment letter
would only govern one set of circumstances, and it would not have addressed
other issues that were raised by the trial judge. For example, such a
commitment letter would have addressed one set of values when it is clear that
there were different possible fair market values for the Family Home, as well
as for the cost of renovating that home. Similarly, it would not address other
hypotheticals that were apparently put to Mr. Grebliunass father, such as
whether he was prepared to offer any more than the amount of the debt on the
Family Home.

[54]

The second issue raised on behalf of Ms. Barendregt is that the
trial judges concerns in relation to the viability of Mr. Grebliunass renovating
and remaining in the Family Home was the lesser of the two dominant
considerations that were identified by the trial judge and that grounded his
decision.

[55]

In
Hejzlar v. Mitchell‑Hejzlar
, 2011 BCCA 230 at para. 46,
Saunders J.A. emphasized the importance of considering the best interests of a
child in the round. Although that expression was used in a particular context
in
Hejzlar,
it is a concept of general application and it simply means that
a consideration of a childs best interests requires a fully rounded analysis
that takes into account all relevant factors:
Hellberg

No. 1
at
para. 72.

[56]

In this case there were several factors that were identified by the trial
judge and that militated in favour of the children staying in Kelowna. It is
not possible to glean or determine what the trial judge would have done had he
not had the various concerns he expressed in relation to both the financial
viability of Mr. Grebliunas being able to stay in the Family Home and the
finances of the parties at large.

[57]

The trial judges concern, or expectation, or assumption, that Mr. Grebliunas
might not be able to remain in the Family Home and that he might not possibly
even [be] able to remain in West Kelowna has been displaced. That concern was,
in the trial judges words, one of the two issues  that significantly
impact[ed his] analysis. It is in the interests of justice that this new
evidence be admitted.

[58]

A related consideration is pertinent. In keeping with the trial judges
concern over Mr. Grebliunass ability to both hold and renovate the Family
Home and to stay in West Kelowna
,
he expressed other concerns of a financial nature. He found that when the parties
had lived together, they had struggled to make ends meet. He also gave some
weight, but only to a slight degree, to the relative expense of Ms. Barendregt
living in the Okanagan, as opposed to her being able to live with her parents
for a time and then finding her own accommodation in the Bulkley Valley.

[59]

In this context it is relevant that the trial judge determined that Mr. Grebliunass
income pursuant to the
Federal Child Support Guidelines
was $65,270 and
that he imputed income of $33,150 to Ms. Barendregt. Accordingly, the
parties had income of nearly $100,000. There was also evidence before the trial
judge that both sets of parents were prepared to help their children
financially.

[60]

In
Stav
at paras. 93106, the Court addressed the various
ways in which the trial judge had misapprehended the evidence relating to the
financial positions of the parties. One aspect of this concern is described in
the following paragraphs:

[94]      Mr. Stav also submits that the trial judge
erred in finding that Mr. Stavs salary of $90,000 was not sufficient to
support two households if the family remained in Vancouver following the
divorce (and assuming that he continued to be unemployed). He submits that many
families live in Vancouver on incomes of substantially less than $90,000 per
year. Thus, he submits that not only did the trial judge err in her assessment
of the financial circumstances of the parties, but that she further erred in
drawing the inference from this evidence that his proposal to continue to live
and support the family in Vancouver was not a viable option.

[95]

Mr. Stav
says the extent to which the trial judges misconception of the parties
financial circumstances unduly influenced her decision is particularly evident
at paras. 53 and 56 of her reasons. At para. 53, the trial judge
states that Mr. Stavs preferred option of shared parenting in Vancouver
fails to acknowledge that these parties do not have enough money to maintain
two residences and a reasonable lifestyle in Vancouver. She reiterated this
view at para. 56, where she stated:

The experience of the Stav family in
Vancouver has not been entirely positive. They have lived beyond their means
for significant periods since they have been here. They have been unable to
purchase any assets beyond the family vehicle. Living apart in Vancouver will
necessarily increase their expenses. I find that there is no realistic chance
that the parties will be able to live within their means here.

[61]

In relation to this concern, the Court determined that the trial judge
had placed undue emphasis on her perception that the parties could not live
reasonably in Vancouver if they were restricted only to Mr. Stavs salary
(at para. 101) and that she had made unwarranted assumptions that the
parties could not afford to continue to live in Vancouver (at para. 106).
The Court further said that in the absence of circumstances in which the court
will impute income to a parent who is failing to meet his or her obligations
for child or spousal support, it is not for the courts to dictate the standards
of living of the partiesthese parties are not alone in living beyond their
income (at para. 102).

[62]

In this case the trial judge similarly appears to have been influenced,
but only to a slight degree, by the concern that the parties combined
income, of nearly $100,000, was insufficient for them to both reside in West
Kelowna. This issue appears to have been tied to and to have reinforced his
concerns about whether Mr. Grebliunas would be able to renovate and stay
in the Family Home. Neither of these concerns, particularly in light of the new
evidence, appears to be properly grounded.

The Best Interests of the Children in Light of the New Evidence

[63]

The introduction of new evidence and the ensuing reconsideration of the
determination made by a trial judge is generally either based on the trial
judge having misapprehended the evidence or because it is in the interests of
justice to do so: see e.g.
Stav
at paras. 10106, 119 and
Jens
at para. 34, respectively.

[64]

In such circumstances, it is open to this Court to either make its own
determination of the best interests of the children or to remit the matter to
the trial court. To the extent it is possible to do so, it is generally
preferable for the Court to make its own determination. Remitting the matter to
the trial court necessarily causes additional expense and delay and emotional
uncertainty for the parties and their children.

[65]

I have earlier said that the trial judges ultimate conclusion was based
on his concerns about the Family Home and other financial issues, together with
his concerns over Mr. Grebliunass interactions with Ms. Barendregt
and her need for some support. The question becomes whether his findings
continue to dictate a given result when one of two dominant considerationsalbeit
the lesser oneno longer applies to his analysis. This is not a question of
reweighing the evidence that was before the trial judge. Rather it is a
question of revisiting the parties circumstances, bearing in mind the trial judges
remaining findings, and ascertaining what result would be in the best interests
of the children.

[66]

Several core findings made by the trial judge set the framework for this
analysis. Both parents were custodial parents. Both were good parents. The
trial judge found that Mr. Grebliunas was a good father, with a strong
bond to his children, and who had taken extraordinary steps to manage his
schedule so that he could be engaged with the children. The children, who had
always lived in the Okanagan, had been with their father for most of the six
months prior to trial. There is no suggestion in the trial judges reasons that
the children were struggling in any way or that Mr. Grebliunas had made
disparaging comments to the children about Ms. Barendregt during this
time, or indeed at any time.

[67]

Unlike most child mobility cases, Ms. Barendregt did not move to
Telkwa to advance her career, for better educational opportunities, or because
she had a new partner there. It is such circumstances that are generally seen
to advance the moving parents ability to meet the best interests of the child.

[68]

Similarly, there is no suggestion that the Bulkley Valley provided the children
with any benefits that were unavailable to them in Kelowna. The trial judge
allowed Ms. Barendregt to move to the Bulkley Valley with the children because
he believed that she might require some assistance taking care of the children,
because her parents were there, and because he was concerned about Mr. Grebliunass
past and future treatment of Ms. Barendregt.

[69]

There are several reasons that these remaining considerations, standing
alone, are problematic and no longer support the ultimate result arrived at by
the trial judge.

[70]

First, the trial judges concerns about Mr. Grebliunass behaviour towards
Ms. Barendregt warrant some context. This context takes several forms.
First, the proposition that Mr. Grebliunass hostility towards Ms. Barendregt
supported her moving to Telkwa was never argued by Ms. Barendregt at
trial. Instead, her evidence was that the parties were getting along better
than they had when they first separated. Even after the trial judge asked Mr. Grebliunass
counsel about this issue during his closing submissions, Ms. Barendregts
counsel, in his reply submissions, did not rely on the issue as a matter of any
real concern.

[71]

I do not say that it was not open to the trial judge to make the
findings he did. But the seriousness of the circumstances he addressed are attenuated
by these realities. In particular, it is relevant that his dominant concern in
support of Ms. Barendregts move to Telkwa with the children was simply
not an issue that Ms. Barendregt or her counsel were significantly concerned
about at trial.

[72]

Furthermore, many of the issues the trial judge was concerned about had
taken place in the past, and there was some support in the evidence for Ms. Barendregts
belief that the relationship between the parties was improving. The trial judge
considered that Ms. Barendregt had been subject to Mr. Grebliunass overbearing
personality during the marriage and that there was a significant possibility
that she had suffered from some degree of emotional abuse at that time. He
referred to the alleged assault in November 2018, and he was inclined to accept
Ms. Barendregts evidence in relation to this issue. It was this alleged assault,
a year before trial, that had caused the parties to separate. He referred to Mr. Grebliunass
false character statements made in late January 2019 and to the fact that an
affidavit he made in June 2019 had included a nude selfie of Ms. Barendregt.
He was also concerned about the continuing acrimony in Mr. Grebliunass testimony
during trial. I do not diminish the seriousness of these conclusions, but
simply note that several of these events occurred at or around the time the
parties separated. Furthermore, there was no evidence of any event involving
the children, or taking place in the presence of the children, since the parties
had separated a year earlier.

[73]

Apart from these issues of context, it is significant that the
conclusions arrived at by the trial judge of Ms. Barendregts need for some
emotional support and the concern over Mr. Grebliunass behaviour have
generally not, on their own, supported a relocation in the case law.

[74]

There are virtually no decisions of this Court where a need, on the part
of the moving parent, for emotional support, even with some friction between
the parties, has justified a relocation.

[75]

The one exception may be
K.W. v. L.H.
, 2018 BCCA 204, leave to
appeal refd [2018] 3 S.C.R. vii. In that case, the mother, who had been her
sons primary caregiver since birth, wanted to move with her child to Nova
Scotia. She had a major depressive disorder that had kept her from working. Her
physician had recommended that she move to Nova Scotia where she had family and
other emotional support. There are some parallels to this case because the
mother was concerned she would not be able to afford to live in the same area
in Vancouver as the father. Furthermore the father had, in the past, drunk
excessively, and he had been verbally abusive to the mother in front of the
child. He apparently stopped drinking and had taken steps to reduce his abusive
behaviour since the parties separated.

[76]

Goepel J.A., at para. 135, emphasized, however, that the mother had
been the childs primary caregiver for almost all of his life and that the
child was a troubled child who would benefit from being surrounded by a
loving extended family. Both of these factors are absent in this case.

[77]

Similarly, in
McArthur v. Brown,
2008 BCSC 1061 at paras. 15062,
the trial judge allowed a mother, who was the primary caregiver for her
triplets and who suffered from depression, to relocate to where her family
lived.

[78]

A further concern, of a principled nature, arises. The relevant case law
recognizes that litigation is adversarial, that it can lead to hostility and
bitter feelings, and that this is particularly true in the case of matrimonial
litigation:
Liedtke v. Liedtke
, 1999 BCCA 364 at para. 23. This
Court has stated that generally the animosity parents feel for each other must
not be allowed to defeat either their obligation to do what is best for their
children or to avoid arrangements that are in the best interests of their
children:
Vincent v. Roche‑Vincent
, 2013 BCCA 304 at para. 27.

[79]

I do not say that there are not, or will not, be cases where the
hostility between parents interferes with their ability to jointly parent a
child. But this is not that case. This is apparent both because the trial judge
did not suggest that these children were being negatively impacted in any way
by the parties ability to communicate, and because the issue of hostility was,
again, not a significant concern to Ms. Barendregt or her counsel. At a
minimum, this must speak to the severity of that issue.

[80]

A survey of the jurisprudence of this Court indicates that, in the main,
sole custody or parenting responsibility may be awarded to one parent due to an
alienation of affection, conflict between the parties, or abuse by one or both
parents in circumstances where there is evidence that the impugned conduct is
directly harming the parties children or where the conduct is much more
egregious than the findings and circumstances in the present case.

[81]

In
Bain v. Bain
, 2008 BCCA 49 at para. 18, the Court
referred to overwhelming evidence that the parties could not communicate to
co‑parent their children. In this case, conversely, the record is replete
with references to the parties continuing to communicate in a civil manner when
discussing their children. In
A.A. v. S.N.A.
, 2007 BCCA 363 at para. 3,
the Court stated that it was certain that the parties child would suffer serious
psychological damage if she remained in the care of the mother. In
Boynton
v. Boynton
, 2014 BCCA 142 at paras. 920, 42, the Court detailed the
lack of cooperation between the parents and the mothers history of alcohol
abuse, abusing the father, and disregarding various court orders.

[82]

Conversely there are numerous cases where joint custody or shared
parenting has been ordered notwithstanding some history of acrimony or
difficulty between the parents: see e.g.
L.M.T. v. R.S.T.
, 2008 BCSC 890
at paras. 21521;
R.A.C. v. V.L.C.
, 2009 BCSC 825 at paras. 14648;
M.J.T. v. D.M.D.
, 2012 BCSC 863 at paras. 15054.

[83]

The foregoing propositions are supported when viewed through a different
lens. If Mr. Grebliunas had agreed to move to Telkwa, he and Ms. Barendregt
would have continued to share custody and parenting responsibilities. There was
no suggestion or argument from either party otherwise. This reality makes Ms. Barendregts
relocation to Telkwa with the children problematic. If the parties could both
parent in Telkwa, notwithstanding some ongoing friction, it is hard to
understand how that same friction would support a relocation order.

[84]

Unfortunately, many parents interact poorly. This is usually dealt with
through the assistance of a parenting coordinator or otherwise. But it does not,
without more, normally warrant a change in custody or parenting
responsibilities, absent extreme circumstances or absent evidence that the
parties children are being affected adversely.

[85]

Still another issue arises. I have said that a significant reason that
justified Ms. Barendregt moving to Telkwa was the concern about her need
for emotional support that was not available to her during the marriage and
that would not be available to her in the Okanagan. The trial judge considered
the children would at least indirectly benefit from their mother residing in
Telkwa, in addition to directly benefiting from close contact with their
maternal grandparents and Ms. Barendregts siblings.

[86]

With this conclusion in hand, it was necessary, however, for the trial
judge to consider whether the children should stay in Kelowna with their
father. His counsel had proposed this, albeit in passing. The trial judges
failure to do so, even while recognizing that Ms. Barendregt had said she
would move back to Kelowna if she was not permitted to relocate with the
children, was an error. This is because either custodial parent was, in concept,
able to care for the children. The fact that Ms. Barendregt indicated she
would return to the Okanagan, and that that might give rise to some conflict,
is a curious basis to suggest that she should then be able to move to Telkwa
with the children.

[87]

A consideration of the childrens best interests in the round, and of
the factors in
Gordon v. Goertz
, [1996] 2 S.C.R. 27 at paras. 4950,
suggests that the best interests of the children would be served by the
children staying in Kelowna with their mother and father. Both parents were
custodial parents. Both were good parents. The children had grown up in
Kelowna. Their friends were there. Their paternal grandparents had moved there or
were in the process of doing so. Permitting the relocation was inconsistent
with the object of maximizing contact between the children and both their
parents. Indeed the relocation was likely to permanently and profoundly alter
the relationship of the children with their father.

[88]

One last practical point is relevant. The trial judge considered that [t]he
emotional weight of having to establish a new life on her own, of learning to
parent independently, and possibly of having to continue to cope with the
emotional outfall of continuing close contact with Mr. Grebliunas all
militated in favour of Ms. Barendregt moving back to Telkwa. I leave aside
that these considerations appear to be directed to Ms. Barendregts well‑being
and not to the best interests of the children. The trial judge had earlier
indicated that he believed the children would benefit from these factors, at
least indirectly.

[89]

If, however, one considers a normal case of shared parenting
responsibilities, on a week‑on, week‑off basis, the children would
have been with their father for a week. Ms. Barendregt would not need any
assistance with the children during that period of time. During the week that
the children were with their mother, they would be in school during the week
and, if she required assistance in the evenings or on the weekend, it would be
necessary for her, as is the case with many single parents, to find that help.
The reality is that there would be relatively little need for the parties to
interact. What is hoped for in the interactions of divorced parents is civility
and respect. What is required is that those interactions not adversely affect
the well‑being and best interests of their children. Many parents in
strained circumstances interact by text or email. In the event Mr. Grebliunas
acted or expressed himself inappropriately, that could be addressed in any one
of a number of ways.

[90]

Accordingly, for the various principled reasons and practical
considerations that I have described, I do not consider that the trial judges
concerns about the relationship between the parties, or his concerns about Ms. Barendregts
need for some emotional support, outweigh the benefits to the children of
remaining in Kelowna. Instead, I consider that the best interests of the
children would be served with their primary residence being in Kelowna and with
their being parented by both their parents.

[91]

I would admit the new evidence, allow the appeal to the extent of
setting aside paragraphs 16 of the order made at trial, which concern
parenting, and order that the children be returned to Kelowna. I would further
order that the parties enter into a shared parenting and shared guardianship
regime. I am mindful that the impact of COVID‑19 may impede the ability
of the children to move back to Kelowna and the placement of the children in
new schools. Accordingly this order is to take effect as soon as reasonably
possible and, in any event, no later than three months from the date it is
made. Until the children are moved to Kelowna, those terms of the existing
order that grant Mr. Grebliunas parenting time are to remain in place.

[92]

One last matter arises. The trial judge, for reasons that were not
developed, dismissed Ms. Barendregts claim for spousal support. In light
of the orders now being made, it may, or may not, be appropriate to revisit
that issue.

[93]

The parties are to bear their own costs of the appeal.

The
Honourable Mr. Justice Voith

I AGREE:

The Honourable Madam Justice
Newbury

I AGREE:

The Honourable Madam Justice
DeWitt‑Van Oosten


