P. V. P. v. E. P. Date:, 2013 BCPC 377

Citation: P. V. P. v. E. P. Date: 20130827 2013 BCPC 0377 File No: 35582 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: P. V. P. APPLICANT AND: E. P. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. E. ROUNTHWAITE

Counsel for the Applicant: Self-Represented Counsel for the Respondent: Self-Represented Date of Hearing: August 14, 2013 Date of Judgment: August 27, 2013 [ 1 ] PVP is the mother and EP is the father of two children: a son, TP, born October 21, 1999, and a daughter, AP, born December 6, 2004. The children are now 13 and 8 years old respectively.

Their mother wishes them to move to join her in Calgary, Alberta, while the father wishes them to remain with him in Surrey. [ 2 ] The parents separated in November 2009 and the following Provincial Court orders were made about guardianship, custody, access and residence of the children. An interim consent order on October 28, 2010, established joint guardianship with liberal access to the father.

An order made on April 7, 2011, provided that the parents be joint guardians with guardianship defined according to the Master Joyce model; the mother have sole custody and primary residence; and the father have reasonable access “such that whenever PVP requires someone to care for the children, she will offer that to EP first”, specified access every second weekend and alternate Wednesdays, and share the children’s holidays.

On June 4, 2013, that order was varied to provide that the father have primary residence, and on July 29, 2013, an interim variation order confirmed joint guardianship, with the father having primary residence and the children to be re-registered in the same school as they attended in June 2013. [ 3 ] In September 2012, the mother moved to Calgary, after arranging for the children to remain in the Lower Mainland, living with the family of her sister, WB. On January 4, 2013, the father filed an application to vary custody, primary residence, and child support.

The mother filed a Reply opposing this application on March 5, 2013. On or about May 3, 2013, the mother gave the father written notice of her intention to move the children to Calgary as required by s. 66 of the new B.C. Family Law Act (“the Act ”) and he filed a Notice of Motion seeking an order that the children not be removed on May 24, 2013. [ 4 ] The new Act replaces concepts of custody and access with guardianship and parenting time, and establishes new rules for deciding relocation issues.

I must apply the provisions of the new Act and decide whether the children should be relocated, what their parenting arrangements should be, and what child support should be paid. Relocation [ 5 ] Only a guardian has legal standing to object to another guardian changing a child’s residence. Here, both parents are guardians under s. 251 of the Act because of the 2011 order making them joint guardians. Thus, as a guardian, the father has the legal right to make an application under s. 68 of the Act to prohibit relocation. [ 6 ] As mentioned above, there are court orders in place respecting parenting arrangements.

Where there is such an order, s. 69 of the Act establishes different tests for relocation depending on whether or not the objecting guardian and the relocating guardian have substantially equal parenting time. [ 7 ] Where the relocating guardian has the majority of the time with the children, has “good faith” reasons for the move, and has a reasonable plan to maintain the children’s relationship with their other guardian, s. 69 creates a presumption in favour of the move unless the objecting guardian establishes that it is not in the children’s best interests.

Where guardians have substantially equal parenting time, the threshold is higher and the relocating guardian must establish that in addition to the factors mentioned above, the move is in the children’s best interests. [ 8 ] Here, the mother had more parenting time than the father under the April 2011 order. However, in September 2012, she placed the children with her sister when she left the province, and since then the children have spent more time with their father.

From September until June 4, 2013, he spent alternating weekends and Wednesday afternoons with the children while their mother saw them only about five times, generally for a weekend or long weekend, although she kept in regular contact with them by telephone and internet. Since June 4, the children have resided full time with their father and had only a brief visit with their mother. [ 9 ] Because the father has had not just equal parenting time, but the majority of parenting time since September 2012, I believe the higher threshold test should apply in this case.

I will therefore apply s. 69(5) and consider the following factors:

a) whether the proposed relocation is made in good faith;

b) whether the mother has proposed reasonable and workable arrangements to preserve the relationship between the children and their father and others with a significant role in their lives; and

c) whether the relocation is in the children’s best interests. Good Faith [ 10 ] I accept that the mother’s move to Calgary was made in good faith. She moved to obtain employment and because her fiancé lives there. In May 2012, she had what she described as a “meltdown” in a workplace that had become very stressful and she was diagnosed with depression and adjustment disorder. She left that job in the summer of 2012 and was unable to find employment as an accountant by September although she is a CGA and has a Masters in Administration. She had previously been looking for alternate

employment in BC for two years without success. Within two months of moving to Calgary, she obtained employment with a company that provides temporary accounting professionals to other businesses and she has worked steadily since then. She is now planning to marry her fiancé next month and also hopes to pursue post-graduate education in Calgary. [ 11 ] She did not try to move the children with her in September because they were registered in school and she couldn’t disrupt their father’s access.

However, she did not comply with the provision of the 2011 order requiring that the father be given the first opportunity to care for the children if she needed someone to care for them. On the other hand, in May 2013 she gave the father appropriate notice of her intention to move the children, and there were no restrictions on relocation in the court orders existing at that time. [ 12 ] The move has enhanced the mother’s quality of life and improved her emotional and financial well-being. She has a less stressful job. Her fiancée works for a railroad and travels during the week but spends weekends with her.

He provides emotional and financial support. She is comfortable with the congregation of the church she attends and happy that it includes other Jamaican- Canadians. Her mother is staying in Calgary at present and working as a childcare provider. [ 13 ] I will deal with whether a move is likely to enhance the children’s quality of life when I consider their best interests. Reasonable Arrangements [ 14 ] The mother proposes that the children spend part, or if I consider it necessary, all of their holidays with their father if they move to Calgary.

Given the distance and the fact that they are in school, this is the only possible arrangement to continue their relationship with their other guardian, and if the children remain in Surrey the father proposes a similar arrangement to maintain their relationship with their mother. Children’s Best Interests [ 15 ] s. 37(2) of the Act requires a judge to consider all of the children’s needs and circumstances when determining their best interests, and specifies a number of factors that must be considered.

After outlining each parent’s plan for the children, I will deal with each of those factors that are relevant in this case. [ 16 ] When the mother moved to Calgary, she helped her sister move to a large house that would accommodate the children, paid for the children’s support including their school fees, kept her sister instructed on matters concerning the children, and maintained telephone and/or internet contact with the children. Both parents are members of the Seventh Day Adventist Church; the children have always attended an Adventist school and church-related activities play an important

part in their lives. [ 17 ] The mother and her fiancée have rented a two bedroom basement suite in Calgary in a family neighbourhood near a recreation centre and church. The church has a number of Jamaican-Canadians in the congregation and the mother believes this will help keep alive the children’s Jamaican roots. She has registered the children in an Adventist Academy in Calgary. After the wedding, her husband will be home on weekends but be away during the week.

The time the mother can spend with the children is limited by her work responsibilities: she would require before and after school childcare provided by her mother at the home of a friend where her mother works during the week. [ 18 ] The father remarried in December 2012 and the children are now living with him, his wife, their eight month old son, and her 13 year old daughter and 14 year old son in a three bedroom townhouse. The school the children attend offers both elementary and secondary school.

The father works for a local school board as a teaching assistant or support worker and finishes work at 3:00 p.m. His wife is a church member and she will be working three evenings a week for a security firm. He or his wife can generally provide the necessary before and after school care for the children. His family spends Saturdays at church. [ 19 ] The following are the s.37(2) factors that are relevant to the children’s best interests. (

a) The children's views, unless it would be inappropriate to consider them [ 20 ] The father tendered letters addressed to the judge written by the children while they were living with their aunt. Both children say they love both their parents but want to stay in B.C. with their father. There is no evidence that the father attempted to influence the children’s views, but that is always a concern when a parent presents letters from their children.

Moreover, as the mother points out, the children know nothing about what their life would be like in Calgary so it is not surprising that they would choose the known over the unknown. [ 21 ] Nevertheless, in his letter, TP speaks eloquently about his wish to remain in the school he has attended since Grade 1. He says he wants to continue the relationships he has built with friends and teachers in that school as he goes into Grade 9.

He also mentions the fact that most of his relations are in BC and says he wants to live with his father and new half brother. [ 22 ] AP writes that she was upset when her mother went to Calgary and she wanted to live with a parent rather than with her aunt. She mentions her step-mother’s children and her baby half brother positively.

However, her letter sounds as if she could be repeating things she has heard others say, and she is still quite young. [ 23 ] Given their ages and the content of their letters, it is appropriate to consider the children’s views, giving more weight to those of the older child because of his greater maturity, but bearing in mind that the caveats expressed above limit the weight to be accorded to their views. (

b) The children's health and emotional well-being [ 24 ] The children appear to be in good health physically and emotionally. AP wrote that she was upset when her mother left and will miss her but she has gotten used to not seeing her. Her godmother, GW, testified that she sees the children at church three times a month and thought AP seemed unhappy. However, her basis for concluding this was that AP used to come and talk to her but has stopped. On

cross examination she said this began a year ago, so the change in behaviour coincided with the mother’s departure and the children’s move to their aunt’s home, rather than with their move to their father’s home. Ms. GW also acknowledged that AP’s behaviour could be explained by children’s desire to be with their friends as they grow older. [ 25 ] AP obtains above average marks at school and TP’s marks have improved. His father helps him with math and science and his mother helps him with English homework.

He is very involved with sports at school and attends Pathfinders, a church club that develops leadership skills. AP has attended the club as well although her parents disagree about whether she is old enough for it. The father says she doesn’t enjoy it; she cries and says she doesn’t want to go; and he thinks she is still too young; while the mother considers the club important for both children. (

c) The nature and strength of the relationships between the children and significant persons in their lives [ 26 ] The children get along very well with their step-mother’s children and enjoy their young half brother. Their aunt, Ms. B, has had considerable involvement in their lives and they spent the last school year living with her, her husband and their son. The mother’s brother and his family also live in the Lower Mainland and the children have spent time with them since they moved to their father’s. The father does not have extended family in BC but his mother visits on occasion, spending several months here in 2011. (

d) The history of the children's care [ 27 ] The children lived with both parents until the separation in 2009. Ms. B joined the family in January 2007 as a live-in care- giver for the children. Their mother worked as an accounting professional in a job that became increasingly stressful in the period from 2008 to 2012. Their father’s work day ended at 3:00 pm and he was able to spend time with the children after work.

The three adults shared parenting duties, although the mother was at home less because of her work hours. [ 28 ] Following the separation, the children lived primarily with their mother, while their aunt continued to provide childcare, until September 2012. Under the April 2011 order, they spent alternate weekends and alternate Wednesday afternoons and evenings with their father. From September 2012 through June 2013, they resided with their aunt and her family, and their father’s parenting time continued on the same basis.

For June and July 2013, they have lived full time with their father and had only a brief visit with their mother. (

e) The children's need for stability, given their ages and stages of development [ 29 ] The father and the children say they have adjusted to the mother’s absence and they wish to maintain stability by remaining in their current school and environment. (

f) The ability of each guardian to exercise his or her responsibilities [ 30 ] The mother is a well-educated professional woman. Reflecting her own values and personality, the mother offers the children a highly structured life, in which church, education and social development are priorities. She wants both children to attend church on Saturdays and participate in the Pathfinders club on Saturday afternoon or Sunday.

She demonstrated her commitment to their education by maintaining communication with the children’s school after she moved to Calgary and arranging for the son to participate in an instructional programme in English this summer because that is his worst subject. However, she unfortunately didn’t tell the father about the programme, and TP was upset when he found out. The mother also supports her son’s involvement in school sports and activities. [ 31 ] At the time of the mother’s breakdown, various medications were prescribed for her and her doctor recommended counselling.

She has been able to stop taking most of the medications, but continues to take one for hypertension. She says she is supposed to avoid stressful situations. She did not follow her physician’s recommendation to seek counselling but she found talking to family members helpful. [ 32 ] The mother has not fostered the children’s relationship with their father to the extent required by the 2011 court order. The order required her to offer the father the opportunity to care for the children when she decided to move to Calgary. Instead, she unilaterally placed them with her sister.

Furthermore, on the mother’s instructions the aunt unilaterally cancelled the father’s parenting time when there were weekend activities associated with the children’s club and sports. The mother did not appreciate that the children’s relationship with their father was a priority, and through her sister did not attempt to agree with the father on a plan for weekends that might accommodate the activities the children wished to participate in without depriving the father of his parenting time. Although Ms.

B said she offered make up time when she cancelled the father’s access, I accept the testimony of the father and step-mother that make up time did not happen. [ 33 ] The father has encountered recurring difficulties in obtaining his access to the children. In the past, the mother denied the children holiday time with their father on more than one occasion, saying she needed them to help her move. She also encroached on the father’s summer holiday time with the children in 2012.

She was uncooperative with regard to arrangements for the children to miss school for an afternoon in order to attend their father’s wedding in December 2012. In addition, when the mother believed the father had spent more than half the 2012 Christmas holidays with the children she instructed the aunt to cancel one of the father’s weekends in January 2013 even though she was in Calgary and the children would spend the weekend with their aunt’s family. The father sought assistance from police to exercise his access that weekend.

The mother’s action on this occasion appears punitive. [ 34 ] Moreover she has involved the children in disputes with the father; for example, telling TP if he didn’t pack and come home when she wanted him to, she would stop him seeing his father. The father believes that on various occasions she has also told the children he wasn’t paying child support, and told TP his father didn’t love him anymore because he had another woman and was taking care of her kids. On March 15, 2012, the mother sent the father a text message saying “I will keep the kids this weekend, so you can have them next week … TP resent(

s) you already for not paying child support … I let him know what is going on especially when I

cannot affor(

d) to give him the things he desire(s)”. [ 35 ] The mother plans to marry next month. She has known her fiancé as a friend for three years; he provides emotional support and was instrumental in her move by providing financial help. She said her fiancé is “pretty comfortable and OK with having the children; in fact, he’s hoping for it”. But the children do not know her fiancé well; they are only familiar with him from visits he has made to their mother over the years.

The father did not know about her impending marriage until she mentioned it in testimony and it appears likely that the children did not know about it. [ 36 ] The father obtained a diploma in secondary education in Jamaica and a certificate in autism support in Canada. He worked for six years as a teacher in Jamaica and now works full time, six hours a day, as learning support staff for a Lower Mainland school board, assisting children with disabilities, especially autism.

Although the mother believes the father, and particularly the step mother, do not share her strong values and commitment to church, education and social development for the children, the evidence does not support her belief. The father and step mother attend the same church as the mother attended in the Lower Mainland, and they take the children to church. The family spends Saturdays at church.

The mother is concerned that the step mother’s children withdrew from the Adventist Academy but the father explained that as resulting from their having been bullied at that school rather than from any reduced commitment to the church. [ 37 ] The father acknowledges that he has not attended parent teacher interviews at school and that the mother is best equipped to help the children with English and French homework but he helps with science, socials and math and he is also committed to the children’s education.

He says he didn’t attend parent teacher interviews because the mother didn’t share that information but he has telephone and in-person conversations with their teachers. The mother says it has been difficult to get TP to do school work since he began to live with his father in June, but I note that this period coincides with summer holidays and it is not surprising that TP is less committed to school work during the holidays. The father sent TP to the English programme this summer after finding out about it.

He believes the children should have some time off in the summer, and he prepares them for school by doing an hour of school work a day with them for the three weeks before school starts. [ 38 ] With regard to the children’s social development, the father sometimes took the children to Pathfinders on Saturday afternoon or Sunday morning during his parenting time, but doing so reduced his unstructured time with them to alternate Sunday and Wednesday afternoons. Because of his limited parenting time, he sometimes did not take them to Pathfinders.

Moreover, the father said he was taking the children to a Pathfinders club in Surrey and the mother moved them to a club she attends in New Westminster which was less convenient for him. I accept that he behaved reasonably with regard to Pathfinders attendance. [ 39 ] Under our law, child support issues are not relevant to parenting arrangements, but the mother says the father’s child support payments have fallen into arrears a number of times. He explains the arrears as resulting from confusion about his obligation to pay during the summer months when he does not work and had the children with him.

At present he has prepaid support until the end of August. [ 40 ] The mother considers the father’s attitude to education to be carefree. The father says he and the children have fun together and the children have fun with his wife’s children. His wife testified and said she was impressed from the beginning with how good the father was with his children. She gives her step-children the same rules and the same love she gives her own children. TL, a long-time friend of the father’s who met him at church, testified that he is a very interactive parent, good not only with his own children but with her two sons.

She has observed that the five children in the father’s blended family get along extremely well. Before the children lived with their step-siblings, they spent considerable time connecting with them by Facetime. She considers them a really good blended family. (

g) The impact of any family violence on the children's safety, security or well-being [ 41 ] All witnesses agree that the parents do not have healthy communication with each other. They disagree and both become angry and aggressive. Ms. B testified about an incident before the separation in which TP woke her during the night for help, saying “Dad’s choking Mum” but when she arrived the parents were standing, facing each other with their hands on each other’s bodies, “being physical with each other” and arguing. His wife says the father uses talking or time outs to discipline the children.

The evidence is not sufficient to prove that either parent was responsible for family violence, nor does it establish that either parent may be impaired in his or her ability to care for the child and meet their needs because of violence. Conclusion [ 42 ] s. 37(3) states that a court order will not be in a child’s best interests unless it protects the child's physical, psychological and emotional safety, security and well-being to the greatest extent possible.

While both parents love their children, and are loved by them, I conclude that remaining with their father in the Lower Mainland of B.C. will best protect the children’s emotional security and well- being and will be in their best interests. [ 43 ] The evidence satisfies me that the father is a nurturing parent, better equipped to meet the children’s emotional needs than their mother. While she offers a more highly structured life, his more relaxed attitude does not compromise the children’s spiritual, educational and social needs.

The mother has shown rigidity and a tendency to undervalue the importance to the children’s well-being of a good relationship with their father. She has also involved them in disputes with their father, to their detriment. I conclude that the evidence establishes that it would not be in the children’s best interests to move to Calgary with their mother. [ 44 ] Even if the father were required to rebut a presumption in favour of the move, I would find he has met that test.

A move would require the children to build a relationship with a step-father they do not know well, whose enthusiasm for step-parenting as described by the mother appears somewhat tepid. Based on her past conduct, the mother seems unlikely to provide the father with all the parenting time she now offers if conflicts arise with activities in which she enrols the children. A move would deprive the children of the emotional nurturing they receive from their father for most of the year.

[ 45 ] The new Family Law Act no longer provides for custody of children but allows a judge to allocate parenting time and parental responsibilities. Because the children will be residing primarily with their father, because their mother resides at a distance from them, and because the parents have difficulty communicating effectively, I will allocate to the father parental responsibilities intended to minimize conflict between the parents and ensure that the father can parent effectively. I will order that the parents share responsibilities where the mother’s input will be valuable to the children.

The parents agreed that the non-residential parent should pay child support based on their guideline incomes, which were not disputed. [ 46 ] For all these reasons I make the following order. I note that the interim variation order made July 29, 2013, is replaced by this order. THIS COURT ORDERS THAT: 1. The Order of the Honourable Judge Cohen, made June 4, 2013, and the Order of the Honourable Judge Davis, made April 7, 2011, are varied as follows. 2. Under s. 251 of the Family Law Act, PVP and EP are the guardians of the children: TP born October 21, 1999 AP born December 6, 2004 3.

EP will have the following parental responsibilities: (

a) making day-to-day decisions affecting the Children and having day-to-day care, control and supervision of the Children; (

b) making decisions respecting where the Children will reside; (

c) making decisions respecting with whom the Children will live and associate; (

d) subject to

section 17 of the Infants Act , giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the Children, provided that he shall consult PVP about all such treatments other than emergency treatments; (

e) applying for a passport, licence, permit, benefit, privilege or other thing for the Children; and (

f) giving, refusing or withdrawing consents for the Children, if consent is required; (

g) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive. 4. The Guardians will share the following parental responsibilities: (

a) making decisions respecting the Children's education and participation in extracurricular activities, including the nature, extent and location; (

b) making decisions respecting the Children's cultural, linguistic, religious and spiritual upbringing and heritage; (

c) requesting and receiving from third parties health, education or other information respecting the Children; (

d) subject to any applicable provincial legislation, (

i) starting, defending, compromising or settling any proceeding relating to the Children, and, (ii) identifying, advancing and protecting the Children's legal and financial interests; (

e) exercising any other responsibilities reasonably necessary to nurture the Children's development. 5. During a Guardian’s parenting time, that Guardian may exercise the parental responsibility of making day-to-day decisions affecting the Children provided, however, that such Guardian must advise the other Guardian of any matters of a significant nature affecting the Children occurring during his or her parenting time. 6. In the event that the Guardians cannot reach agreement with respect to any major decision despite their best efforts, EP is authorized to decide the issue in dispute. 7. EP will provide the Children’s primary residence.

8. PVP will have generous parenting time with the children whenever she is in the Lower Mainland of British Columbia; for two thirds of the Children’s summer, Christmas, spring, and Easter school holidays; and such other parenting time as the Guardians may agree upon, including parenting time by telephone, Skype, and Facetime. 9. The Children shall spend Christmas Day with their father in odd-numbered years and with their mother in even-numbered years unless otherwise agreed between the Guardians. 10.

PVP will pay to EP support for the two children in the amount of $760 a month, commencing July 1, 2013, and continuing on the first of each month thereafter for as long as each child is a child within the definition of the Family Law Act , based on the finding that she is a resident of Alberta and has a Guideline income of $53,900. 11. EP’s obligation to pay child support to PVP is terminated effective June 30, 2013. Any overpayment of child support by EP shall be refunded to him. 12.

For as long as either of the Children is eligible for child support, the Guardians will exchange copies of their previous year’s Canada Revenue Agency Notice of Assessment on or before June 1 st each year in order to determine their Guideline incomes. 13. PVP will pay to EP her proportional share of the Children’s Special Expenses, being their school tuition and fees, medical and dental expenses not covered by insurance, and extra-curricular activities, provided that she has agreed to the school, treatment or activity, within two weeks of receiving a receipt for such expense. 14.

Until June 1, 2013, PVP will pay to EP 66% of the Children’s special expenses, based on her Guideline income of $53,900 and his Guideline income of $26,706. Thereafter her proportional share will be calculated annually on June 1st based on the Guardians’ Guideline incomes for the previous year. The Honourable Judge A.E. Rounthwaite Provincial Court of British Columbia