A CASE STUDY: Den Duyf v. Den Duyf, 2024 BCSC 2151

Den Duyf v. Den Duyf, 2024 BCSC 2151

Judge: Justice Elwood

Judgement Rendered: November 28, 2024

Issues/ orders Sought: Mom wanted a final order to move with the child from Pemberton to Salt Spring Island. She was not successful.

Facts:

The mother and father, met in 2019, begin living together 2020, had a child December 1, 2021, married in 2022 and separated on December 6, 2023.

The father is 28 years old, works as a head mechanic for his parent’s company and has lived in Pemberton for most of his life The mother is 38 years old. She moved to Pemberton in 2018. Her parents live on Salt Spring Island. She began working for her in-laws in 2022 after the child was born and was terminated from her employment in May of 2024.

The mother and father purchased a lot in Pemberton funded by the father’s parents in 2021; the main house was completed in 2023. At the time of the application the mother was living in the main house.

Commentary: the mother’s reason for the relocation were financial and her emotional well being. The mother was not working and was feeling isolated in her Pemberton home (financed by her in-laws). The court acknowledged it is in the Child’s interest for the mother to be a well-functioning and happy parent, but as the mother worked in digital marketing she could work just as easily from Pemberton as she could from Salt Spring Island. Evidence was lacking that better employment opportunities could be found in Salt Spring and that daycare would be less expensive on Salt Spring. The court also commented on the practical difficulties of the 3 year child visiting his father in Pemberton from Salt Spring:

[99] The result, in practical terms, is that, during the regular parenting schedule, the Child would spend just one day in Pemberton every other week, and two days every other week travelling to and from Tsawwassen. Time in a moving vehicle is not meaningful parenting time with a three-year-old child. Nor would it be fun for the Child to spend such long hours in a car seat. And this does not include the time on the ferry with her mother.

This case may provide some guidance with respect to summary trial applications and paramountcy as between the Divorce Act and the Family Law Act . Justice Elwood comments on the appropriateness of summary trial in the family law context:

[38] In Ghavim v. Jamali, 2014 BCCA 21 at para. 32, the Court of Appeal sounded a note of caution with respect to determining family law claims by way of summary trial:

[32] … Care must be taken, when summarily determining claims pursuant to the Rule, to recognize the preeminent objective of determining cases fairly on their merits. Because judgment on a summary trial will deprive the parties of a full trial, it is particularly important to observe the safeguards incorporated in the Rule, which are intended to ensure the proper attainment of justice.

[40] When the court is asked to decide some, but not all, of the issues in a case—sometimes referred to as “litigating in slices”—it is important to consider carefully whether trying the issues separately will contribute, in the end, to a just, speedy, and inexpensive determination on the merits. In some cases, a summary trial may promote a more efficient determination of the case overall; in other cases, summary trial of an issue comes with significant risks, including inconsistent findings, multiple appeals, delay, and confusion: Kaler v. Kaler, 2013 BCCA 57 at para. 23; Coast Foundation v. Currie, 2003 BCSC 1781 at paras. 13, 16–18.

[42] Deciding relocation issues on a summary trial entails a number of risks. Chief among them is that a final order may be uninformed by evidence that would likely have emerged in a conventional trial. That being said, there is no presumptive rule that relocation issues can only be decided following a full-blown trial. “At the end of the day, the suitability of a matter for determination by way of summary trial is a case-specific inquiry.”: Hellberg v. Netherclift, 2017 BCCA 363 at paras. 100–102.

Although the mother relied on the Family Law Act, S.B.C. 2011 c. 25 [FLA] in general and s. 69 of the FLA in particular, as the parties were married Justice Elwood relies on the Divorce Act:

[68] The parties did not address paramountcy as between the DA and the FLA in their submissions. My view is that the doctrine of paramountcy applies so the relocation application should be considered under the DA rather than the FLA: K.S.P. v. J.T.P, 2023 BCSC 1188 at para. 282.