A CASE STUDY Barendregt v. Grebliunas, 2019 BCSC 2192

Judge: A. Saunders

Trial Location:  Kelowna

Place of Judgement Smithers 

 Judgement Date: December 18, 2019

Issue: the mother wanted to move from Kelowna to Northern BC with her two boys.

Outcome: the mother was successful

Facts:

 The mother and father met in northern British Columbia (Buckley Valley) in 2011. They were both very young, the mother was still in high school. The father moved to Kelowna, and the mother followed him to Kelowna in 2012. Soon after, they got married (March 2013), bought a house (the “Kelowna House”), and had two boys. The mother moved back to the Buckley Valley  (Telkwa) following separation and sought an order to have the boys live with her.

The Kelowna House (were the father continued to reside) played a central role in the litigation:

[6] Shortly after the parties moved into the house, they had an electrical fire in an interior wall space. In the course of repair, they discovered an issue with rodent infestation, which led to Mr. Grebliunas tearing out drywall throughout the house, and then attempting to gradually renovate it room by room. As the work progressed further issues were identified, including other issues with rodents, water ingress, mould, and compromise of a structural floor joist.

[8] Mr. Grebliunas tore out the kitchen in 2015; since then there have been no proper kitchen cupboards and only very limited counter space, with a plastic utility tub serving as the sink, and, as Ms. Barendregt described them, cabinets of the type used to store tools. The kitchen is still in that condition today. Similarly, he tore out the upstairs bathroom in 2014; he drywalled, and installed a toilet in 2016, but the bathroom had no tub or shower until this September, and no vanity until this November. Mr. Grebliunas said in cross-examination that since the separation he has been working on the renovations at an “accelerated pace”, using his credit cards and borrowing more on the line of credit.

The Kelowna House was in such poor shape that Justice Saunders concluded

[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.

In addition to the Kelowna House, Justice Saunders focussed on the volatile relationship between the mother and father:

a) As I have described, there was friction during their marriage: likely some element at least of one personality overbearing the other, and possibly some degree of emotional abuse;

b) Given her demeanour while testifying, I largely accept Ms. Barendregt’s account of being assaulted by Mr. Grebliunas during the argument that precipitated the separation. At trial she found it extremely upsetting to give her evidence of the assault. It is likely she was assaulted and traumatized emotionally. Further, there is in evidence a medical record of her attendance at the Bulkley Valley District Hospital on November 16, 2018, for assessment of bruising over her left eye. Mr. Grebliunas’ evidence of the argument did not account for this bruising, and I do not accept his counsel’s argument in closing submissions that the bruising may simply have been caused by them “wrestling”. Mr. Grebliunas’ continuing blame of Ms. Barendregt for the argument, his portrayal of her as the aggressor, and his insistence that her story of being assaulted was a fiction concocted by Ms. Barendregt and her mother to provide a pretext for the separation, seem likely to be an ongoing source of acrimony;

c) In support of his application to have the boys returned to his care, Mr. Grebliunas swore an affidavit dated January 28, 2019, attached to which were letters – one co-signed by his parents, one from his aunt, and three from his friends who were witnesses at trial – attesting to his character; the letters from his parents, and one from a friend, are entitled “Character Reference”. The letters are suspiciously similar in their content, which in each letter was more or less equal parts character reference for Mr. Grebliunas, and criticism of Ms. Barendregt. Mr. Grebliunas Sr. and Mr. Grebliunas’ aunt acknowledged in cross-examination that some of the content of their letters, in particular passages critical of Ms. Barendregt, does not in fact reflect their own personal knowledge, but is information provided to them by Mr. Grebliunas. Compounding this deception, Mr. Grebliunas described these letters in his affidavit as “Will Say” statements, falsely implying that they contain admissible evidence the letter writers would be able to give under oath; and

d) Mr. Grebliunas attached to his June 14, 2019 affidavit, filed with the court, an undated nude “selfie” that Ms. Barendregt texted to him in March. Ms. Barendregt testified – understandably – that she was humiliated by the photo being put in court documents. Given her demeanour as she testified concerning this, I have no hesitation in accepting that this was so. She said that after she learned that Mr. Grebliunas had done this, she had no doubt that she needed out of the relationship. This violation of Ms. Barendregt’s privacy served no purpose but to humiliate her. It was abusive, and profoundly offensive.

Justice Saunders makes the following findings:

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 children’s 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 children’s best interests, which optimally is one of the desired outcomes of a shared parenting structure.

The court of appeal allowed the father to bring in new evidence with respect to his finances.

The SCC found the Court of Appeal was wrong to have intervened with the decision of Justice Saunders. The Court’s focus was:

1.      on the Palmer test; the SCC clarified that if a party wants to rely on new evidence at the Appeal level there will be a tough row to hoe. A party can’t do an end run around the Palmer test and due diligence by claiming it is in the interest of justice that the new evidence be heard especially in the context of family law where there are variation procedures designed to address any material change in circumstances:

[72] To be clear, such exceptional circumstances do not dispense with the other Palmer criteria — the evidence still must be relevant, credible, and have some material bearing on the outcome. Similarly, the best interests of the child cannot be routinely leveraged to ignore the due diligence criterion and admit additional evidence on appeal. An appeal is not the continuation of a trial. Rather, the party must satisfy the judge that the interest of finality and order is clearly outweighed by the need to reach a just result in the context of the proceedings. In such circumstances, the interests of justice may demand additional evidence to be admitted on appeal.

2.      Justice Saunders did not err in his relocation analysis