Hood, J. 2001 SKQB 64 F.L.D. A.D. 2000 No. 468 J.C. R. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: LORI ANN GLIER and BERNARD FRANK GLIER RESPONDENT Noel S. Sandomirsky, Q.C. for the petitioner Gerald B. Heinrichs for the respondent JUDGMENT KRAUS J. February 2, 2001 [1] The petitioner seeks interim custody, or primary residence of the children, pursuant to s. 6 of The Children\'s Law Act, 1997, S.S. 1997, c. C-8.2 (the "Act"). The respondent seeks a declaration declining jurisdiction, or an order of joint custody, pursuant to the Act. [2] The parties were married in 1994. They are both university graduates and teachers. The petitioner was employed as substitute teacher at Richmond, British Columbia until the time of the birth of their son when she became full time homemaker. The respondent continues to be employed as full time high school teacher in Richmond. [3] The parties have two children: their son will be six years of age in June and their daughter will four years of age in May. They have always resided in the matrimonial home with their parents in Richmond, until the 3rd day of November, 2000, when the petitioner removed them from the matrimonial home and brought them to Regina. The son had been enrolled in kindergarten in Richmond, across the street from the matrimonial home, up to the time of the move. [4] The petitioner gave no notice to the respondent of the intended move, and he deposes that he returned home from work and discovered that the petitioner and the children were gone, without any warning or note. The house was in disarray and he feared that robbery had occurred and that his wife and children had been injured or abducted. However, within few minutes of arriving home, he received telephone call from the petitioner who told him that she was in Regina with the children, but she said very little else. [5] The respondent's parents, the children's paternal grandparents, live nearby and had been greatly involved in the lives of the children. The paternal grandmother deposes that the grandparents saw the children once or twice weekly and assisted with babysitting from time to time. The petitioner often brought the children to their house when she went shopping or ran errands, and the children would have lunch at their home. The petitioner and the respondent and their children came over to their home for supper almost every Sunday, being the normal regular family important event, at which time the children interacted with their extended family and friends. Since the move, the paternal grandparents have received no calls from the petitioner, nor from the children, and they had received no notice about the move. They are ready, willing and able to assist their son in the care of the children to enable them to live normal, healthy and happy life in British Columbia. Two sisters and one brother of the respondent, aunts and uncle of the children, also live in the lower B.C. mainland and participate in family gatherings when the children play with their cousin. The family members depone that the respondent is caring and loving father of the children. [6] The petitioner has deep roots in Saskatchewan. She was born and educated here and her parents and grandmother still live here. She met the respondent when he was in training camp with the Saskatchewan Roughriders, and later followed him to his home in British Columbia. Following their marriage in 1994, she moved into his house which had been purchased by him in 1985. The petitioner initially brought the children to her parent's residence in Regina on November 3, but has since moved with the children to her grandmother's residence several weeks ago. Her grandmother is 85 years of age. The petitioner does not deny that she and the children have moved to her grandmother's residence, but she deposes in her affidavit (which is the only material filed in support of her application) that she and her children have remained guests of her parents and she has enrolled their son in kindergarten in the public school system in Regina. Beyond that, there is no evidence about the circumstances of the children. [7] According to the petitioner's evidence, the respondent is domineering and controlling, has threatened her over the past ten years of marriage, and has been "too physical" with the children. She cites two allegations of such. She asked the respondent to engage in anger management control and personal or marriage counselling, but the respondent refused. According to her, he reasoned that it was too expensive, and, if she had problems, she should visit her parents or get help for herself. Indeed, she sought counselling from psychologist in British Columbia and, in the result according to her, she brought the children with her to Regina on November 3, with the intention that she would not return to the matrimonial home nor resume cohabitation with the respondent. [8] The respondent deposes that the petitioner makes "terrible and false statements" about him. His perception is that they have the basis for good marriage. He denies being aggressive with the children, and alleges that the petitioner is the only one who ever spanked either of the children and he never spanked them. He denies injuring the children and deposes that the allegation of being domineering person is false allegation, and one that the petitioner has never made previously. He deposes that he refrained from taking proceedings in British Columbia in the hope that they could achieve reconciliation. On the basis of the petitioner's evidence that she did not intend to return to the matrimonial home when she left on November 3, he deposes that he now understands that he had been misled for two months so that the petitioner could establish legal residency in Saskatchewan. According to his evidence, the petitioner talked about reconciliation and counselling. He deposes that she left quickly and secretly to prevent him from taking any court proceedings in British Columbia to stop her move. [9] I am not satisfied that the children are habitually resident in Saskatchewan. They are not living with their mother with the implied consent or acquiescence of their father. He delayed in bringing an application for custody in British Columbia because of his mistaken belief that the petitioner was considering reconciliation, although he learned, when he received her affidavit in support of her custody application, that she never had any intention to return to the matrimonial home. accept that evidence, which is uncontradicted, and leads to the conclusion that the father did not impliedly consent, nor acquiesce, to the children living with their mother in Regina. The children have a real and substantial connection with British Columbia, and the substantial evidence concerning their best interests is available in that jurisdiction. [10] The persons who can attest to the professional, social and family circumstances of the children reside in the Province of British Columbia where they have lived all of their lives. The son had been enrolled in kindergarten there until the time that his mother moved him to Regina. It is likely that his teacher, playmates, parents of the children's friends, paternal grandparents, aunts, school professionals and others, including the petitioner's psychologist, may be called to testify about facts and circumstances bearing on the best interests of the children. On the other hand, the children have only been resident in Saskatchewan for approximately three months, during which time they have moved on two occasions. There is no evidence about the schooling of the son, nor of the career plans of the petitioner, nor of the care to be provided to the two children while she may be out of the home working. It is likely that the petitioner's parents and her grandmother may be witnesses as to facts and circumstances bearing on the best interests of the children. However, when the balance of convenience is considered between British Columbia and Saskatchewan, the factors weigh heavily in favour of the convenience of British Columbia. adopt the reasoning Helper J.A., in Holt v. Lippert (1996), 1996 CanLII 18017 (MB CA), 21 R.F.L. (4th) 241 at 242-3 (Man. C.A.): ... [T]hose individuals who have the most current information on the children are in the best position to assist the court in providing the evidence of the children's state of well-being. The people who have developed social, educational and professional relationship with the children in the past two and one-half years are in Manitoba. To require those persons to travel to Ontario to provide that evidence is not in the best interests of these children. also adopt the reasoning of Wimmer J. in Breker v. Breker, [1995] S.J. No. 37 (QL) (Q.B.) that the forum of convenience is where evidence will be most easily accessible concerning the routine, habits and proclivities of the children, being necessary considerations to determine the best interests of the children. [11] If I had determined that the court has jurisdiction for purposes of making a custody order under the Act, I would decline to exercise it, pursuant to s. 16 of the Act, since it is more appropriate for jurisdiction to be exercised in British Columbia. [12] I make these determinations on the assumption that the respondent will not disturb the status quo as to the residence of the children unless and until court authorization has been obtained. He is directed to forthwith file such undertaking, failing which counsel have leave to make further representations.
The mother sought interim custody of their 3 and 5 year olds or primary residence of the children pursuant to s.6 of the Children's Law Act.  The father sought a declaration declining jurisdiction, or an order for joint custody. HELD: The children had a real and substantial connection with British Columbia and evidence of their best interests was available there. They were not habitually resident in Saskatchewan and had been here only 3 months. They were not living with their mother with the implied consent or acquiescence of their father. The uncontradicted evidence that the mother never had any intention to return to the matrimonial home was accepted. The Court would have declined to exercise jurisdiction in any event pursuant to s.16 since it was more appropriate for jurisdiction to be exercised in BC. The father was directed to forthwith file an undertaking to not disturb the status quo until court authorization has been obtained.