Interim Vancouver Family Orders and Applications can include temporary BC family law decisions relating to the payment of spousal support, child support, control and access to property, control of bank accounts, and often most importantly, access and custody of children.
Vancouver Supreme Court Makes Emergency Interim Family Law Order for Child Custody & Access when Mother Moves to Winnipeg with Young Child without Father’s Knowledge or Consent – Best Interests of Child
Our BC family law clients in Vancouver, Surrey, Kelowna, Fort St John, or Calgary wonder what to do if they need the family Court to make an immediate interim (temporary) decision relating to the preservation of family property, spouse and/or child support payments, access and custody of children while the parties wait for their actual trial? Have our top rated lawyers help you on an urgent basis.
Do the parties have to wait until the actual trial before some of these often-urgent matters are decided? The answer is no. The Court can, and frequently does, make precisely these types of decisions, which are just as binding or enforceable as any other Order of the Court, but usually only until the actual trial occurs.
Interim Orders can include temporary decisions relating to the payment of spousal support, child support, control and access to property, control of bank accounts, and access and custody of children, among other things. In the very recent Supreme Court of British Columbia decision of A.S. v. V.S., 2012 BCSC 1776 the Court was asked to make an Interim Order relating to several very complicated issues which came up when the mother of a young child suddenly and secretly moved from New Westminster, BC to Winnipeg, MB with the young child in order to escape the allegedly violent behavior of the father. Further, the mother made this move without the knowledge or consent of the father after he was arrested, detained, and then released on bail (and ultimately found not guilty) following an alleged death threat he made in respect of the young child.
The question the Court faced was whether or not the mother should be ordered to immediately return from Manitoba to British Columbia along with the young child so that the father could have ongoing access to the child. It was acknowledged, however, that custody had already been awarded to the mother, also on an interim basis, and that, notwithstanding the acquittal from the alleged death threat against the child, the father was still under a restraining (“no contact”) order with respect to the mother.
Ultimately the Court based its decision, as it was bound to do, on what is in the best interests of the child. In particular, the Court put significant weight on the following factors:
- the mother was able to find full-time employment in Winnipeg – something that had been difficult for her to do in New Westminster;
- the father had failed to make any of the spousal or child support payments due under a previous interim order;
- the mother alleged that she feared for her own safety and the safety of the child;
- the father claiming that the criminal charge was simply part of a ruse or conspiracy intended to frustrate his access to child;
- the history of the father’s actual involvement in the upbringing of the child prior to the move;
- the mother and child having already been in Winnipeg for several months and the child having now made new friends and having establish new relationships and routines; and,
- the ability of the father and the paternal grandparents to have telephone conversations or Skype conversations with the young child until such time as custody, access, and final living arrangements are determined at trial.
The Court noted as follows:
[3] The [mother] alleges that the [father] was violent throughout the relationship, that his actions were known to his extended family and that they condoned, if not encouraged, such treatment. It is alleged that the intimidation and violent behaviour was directed at both the [mother] and [the young child].
[4] … The [father] acknowledges that he did strike the [mother] on [one] occasion; he says that he hit her accidentally but nonetheless entered a plea of guilty to a charge of assault at a very early stage of that process. He received a term of probation, a condition of which provided that he have no contact with the [mother] and/or [the young child] if he was consuming or had consumed alcohol.
[7] The [mother] alleges that the restraining order did little to curtail the [father’s] actions and… that there was at the very least excessive coincidental contact between the parties. I have concluded that there was very likely more than that and that the [father] continued his attempts to contact and monitor the [mother] after the restraining order was in place. This conclusion is supported by the extensive texting records exhibited to the various affidavits as well as the evidence of [witnesses].
[14] The [mother] has obtained employment in Winnipeg, Manitoba; she and [the young child] are settled in… [the young child] attends a daycare weekdays from 8:30 a.m. until 4:30 p.m. and appears to have established a good circle of friends in her age group. The [mother] says that her life in Winnipeg is free from the fear and stress which she faced from the [father] in BC and that as a result she is a much better caregiver and mother to [the young child] than she was in BC. She is willing for [the young child] to travel to BC to spend extended periods of time with the [father] but she wishes to remain resident in Winnipeg with [the young child].
[17] Regardless … I am bound by and agree with the statutory mandate that I must consider the best interests of [the young child] to be of paramount importance in reaching my decision…
[18] …I am satisfied that the [mother] was and has remained the primary care parent…
[19] The [mother] has now obtained employment security in Winnipeg, something which she did not enjoy to the same extent in BC. This is a significant issue when considered alongside the [father’s] failure to pay child support as had been agreed between the parties. The [mother] was left to her own devices in terms of providing for [the young child] while at the same time living under a cloud of stress related to the long-standing and persistent stalking activities of the [father]. In addition, and although the [father] was ultimately acquitted of the criminal charges, the [mother] was also operating in the knowledge that some form of threat may well have been made by the [father] against [the young child]. That threat has been scrutinized at the criminal test level of beyond a reasonable doubt; until this trial proceeds, it will not have been assessed in light of the civil burden of the balance of probabilities.
[20] [the young child] has much less access to her extended family, particularly her paternal grandparents, with whom she lived for a large part of her life. That is an issue which can be addressed on an interim basis by telephone or Skype contact and by [the young child] spending extended periods of time with the [father] and his parents [during various school holidays].
[21] …The [father] has not paid child support since separation, although there appears to have been an agreement reached that he would do so at a rate of approximately $165 per month. Assuming his obligation to pay support arose at the time of separation, the notional amount which should have been paid to date is just short of $4,000, a sum which should be sufficient to cover a large portion of the travel costs associated with extended access visits between now and trial.
[22] An order that [the young child] be returned to BC pending trial would significantly disrupt her now established and existing social interactions, community support system and routines. She is well established in daycare for the time being and has an appropriate social circle of friends; the assessment of whether it is better, over the long run, to maintain the existing regime or to have [the young child] move back to BC can appropriately, and should, be made at trial in the Supreme Court of BC as early in 2013 as can be arranged.
[23] In all of the circumstances I have concluded that it is not in [the young child]’s best interests to be ordered returned to BC… It is in her best interests that a process be put in place to begin to re-establish a meaningful relationship between her and the [father] before trial. That process should include immediate institution of telephone and Skype contact…, an initial extended access visit in Winnipeg before Christmas and two longer extended access visits here in BC in the new year prior to trial.
Thus, the Court has ordered that, for now, the child and her mother will remain in Winnipeg. It is worth noting, however, that all of this may change once an actual trial is concluded. These interim orders are just that – being temporary. During the trial, following the examination of all of the evidence, the opportunity for witnesses to testify, and experts to prepare and submit reports, the trial Judge will be entitled to change or rescind any of these interim (temporary) measures. Therefore this case is not yet settled and we will keep you posted as the final outcome.
If you are concerned about an interim order that has been made either against you or in your favour, it is a good idea to consult with an experienced family lawyer to help to sort through all of the options and strategies that will ensure the best possible outcome for you and your children. Keep in mind, interim orders are only temporary and everything can change following a full trial. The experienced family lawyers of the MacLean Law in Kelowna, Calgary, Fort St John, Vancouver and Surrey are here to help. Please call us toll free at 1 877 602 9900 now to schedule your initial consultation.
