M.S. v. N.H. Date:, 2017 BCPC 299

Citation: M.S. v. N.H. Date: 20170731 2017 BCPC 299 File No: F-9470 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: M.S. APPLICANT AND: N.H. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CHALLENGER Appearing on his own behalf: M. Sadler

Counsel for the Respondent: W. McLachlan Place of Hearing: North Vancouver , B.C. Dates of Hearing: July 24 to 27, 2017 Date of Judgment: July 31, 2017 [ 1 ] These reasons relate to an application by Father for a change in the parenting time regime and an application by Mother for permission to relocate with the children from the North Shore to a mid-size city in the Interior. If Mother’s application to relocate is denied, Mother is opposed to any change to the current parenting time regime.

The parents managed to co-parent for many years without a formal agreement or order until the issues before the court arose. Thus, s. 46 of the Family Law Act applies to Mother’s application. There are also issues relating to child support and s. 7 expenses which will be dealt with in separate reasons. [ 2 ] These reasons will be brief and to some degree in

summary form due to the urgent need for a decision about the relocation issue. [ 3 ] The parties began cohabiting in 2003 and separated in 2008. There are two female children of the union born in 2007 and 2009. They are now 12 and 9 years of age. The older child will be entering grade 8 this fall and the younger child will be entering grade 5. The children do not have any special needs and both are thriving in all aspects of their lives. Mother has been the primary caregiver to the children since birth and the children have resided primarily with her since separation with Father enjoying generous parenting time.

Since early 2014, Father has had the children for five night weekends every two weeks. [ 4 ] Father testified. He called as witnesses a family friend and his young adult daughter who was raised by her mother and who is a half-sister to the two girls. Mother, her current partner, and her mother testified. A full s. 211 report prepared by Dr. England was before the court. [ 5 ] Throughout their working lives both parents, who are themselves indigenous, have worked in an executive capacity dealing with issues relating to indigenous people. Each parent is well educated and highly respected.

Neither have any health or current behavioral concerns which impact their capacity to parent. Father is not prepared to leave the North Shore and relocate to the city Mother wishes to move to. [ 6 ] Father was a teacher for a brief period until age 24 or 25 when he engaged in sexual exploitation of a 16 year old student. He was convicted and received a one year jail sentence. Ten years later, while acting in an administrative position in the education department of an indigenous Nation, he engaged in a sexual relationship with a 16 year old female who was a student in the educational programs.

He was dismissed from his employment as a result. Although dated, these events are of relevance in this matter with respect to Father’s credibility and his attitudes toward females, including Mother. I do not find these matters substantially affect any factor to be considered in determining the best interests of the children. [ 7 ] Father never informed Mother about his conviction. On one occasion he was turned back at the border while on his way with the children to Disneyland.

I accept that he was not truthful with Mother at that time by first saying his name was on a terrorist list and later mislead her through omission by saying it was due to an issue in his past which she understood to have been a criminal conviction. She was unaware of the serious nature of that conviction until she recently did an online search under his previous legal name. [ 8 ] When cross-examined about these matters, Father minimized the seriousness of his conduct and was clearly irritated by the matters being addressed at all.

In the s. 211 report, his comments about his criminal conduct similarly did not reflect any shame or remorse. It does not appear Dr. England was informed about the later inappropriate conduct. The following day at trial, after some time for reflection, Father expressed somewhat more acceptance of responsibility. [ 9 ] Father’s testimony, both in terms of what he said and how he said it and his written communications with Mother, evinced a patronizing attitude toward Mother, implicit gender bias and objectification. This was echoed in his comments to Dr. England.

He is at times somewhat belligerent and often domineering. Since receiving Mother’s notice of her desire to relocate, Father has engaged in unnecessary berating of Mother and gratuitous personal attacks in his written communications with her. This is consistent with Mother’s description of his conduct on an ongoing basis throughout their relationship to date and with the testing results and conclusions of Dr. England in the s. 211 report.

Despite these shortcomings, these parents have been able to effectively co-parent and Father is able to meet the needs of his children and to parent adequately. [ 10 ] Father was inconsistent in some areas of his testimony. I do not find he intentionally intended to mislead the court, however, I do find his personality causes him to interpret events and conversations in a self-serving manner. As an example, he could not provide an explanation for why he and Mother continued to pursue finalizing a family agreement which was inconsistent with what he said had been agreed to respecting child support.

He also insisted that he engaged in a reading program and nightly reading with his youngest child. However, the child advised Dr. England that there were no books at her father’s house except a book about Bobby Orr and that he fails to engage in reading with her even when she reminds him of the need to do so. [ 11 ] I find that Father tends to make parenting decisions which are based on convenience and ease for him. As examples, he testified that it was a completely positive experience to have co-parented during the times when he lived in the basement of Mother’s residence. In

summary, Mother’s testimony was that Father had the best of both worlds as he had day to day contact with the children without having to assume the responsibility of maintaining a home for them or for doing the hard work of parenting. He also failed to respect her privacy or any boundaries she attempted to set. Father was also free to come and go as he pleased and did so by frequently travelling for pleasure or golfing.

During his parenting time presently, while accepting the children of each family are close friends, Father and the children spend an inordinate amount of time at the home of his witness and her husband, who are also “hockey parents”. As they both described this time it involves the parents socializing while the children play together with the result that Father is not

directly engaged with the children for much of his limited parenting time with them. [ 12 ] Dr. England described his parenting as “more self-centered than child-centered” and that his attitude toward meeting the children’s needs was “somewhat negligent and cavalier”. I agree with this opinion. I find that Father’s position with respect to his parenting time is premised on meeting or exceeding 40% so that he will be excused from paying guideline child support rather than being focused on the best interests of the children.

Nevertheless, Father and the children are bonded, enjoy a good relationship, and he is able to meet their needs. [ 13 ] Mother testified in a manner consistent with the testing results and conclusions of Dr. England. She was consistent, thoughtful, careful, calm, and fair. I accept her explanation for why she did not pursue various matters, including child support, being that Father would become belligerent and domineering whenever confronted with any position he did not agree with. I also accept that Father was dismissive of and disinterested in many issues she has attempted to address with him.

Where Mother’s and Father’s evidence differs on material points, I accept the evidence of Mother. [ 14 ] I find that the reason these parents have been able to effectively co-parent is because Mother has chosen not to press Father on many issues or has chosen to deal with them on her own. Father asserts that Mother is now fabricating issues to support her application to relocate. I do not accept this to be true.

I find these issues have always existed and Mother is only now addressing them as she finally feels able to do so in the context of the court process. [ 15 ] I find Mother is an excellent parent who is dedicated to nurturing her children and who puts their needs before her own. The opinion of Dr. England is that any of her failings in parenting relate only to a lack of assertiveness and a need to set boundaries and follow through with the children to ensure they observe them. Mother should follow up with the counselling recommendations of Dr. England to address these issues.

The Law [ 16 ] I have reviewed and considered the relocation provisions of the FLA in s. 46 and

Part 4, Division 6 and s. 37(2) with respect to the best interest of the children. I have also considered D.A.M v. E.G.M. , 2014 BCSC 2091 , Fotsch v. Begin , 2015 BCCA 403 and Hefter v. HefterI, 2016 BCSC 1504 . Although s. 46 governs this application, I agree with the court in D.M. that all of the jurisprudence relating to relocation is of assistance as the application of the best interest test is consistently applied throughout. Mother is not entitled to rely on the presumption set out in 69 (4) and Father is not entitled to rely on any presumption in favour of the status quo.

I must apply “the relatively straightforward” test under s. 46 and consider Mother’s reasons for relocating and whether that relocation is in the best interests of the children (see: A.J.D. v. E.A.E. , 2013 BCSC 2160 ). However, this situation is unique in that these parents have been separated for 8 years without an agreement or order and Father has had substantial parenting time. As a result, in fairness to Father, I have been mindful of the high onus which Mother would have had to meet under s. 69(5).

Reasons for Relocation [ 17 ] Mother’s request to relocate is one based on a committed relationship with a man who is bound by heritage to the area around the city to which Mother wishes to take the children. Her partner has a young child of his own who lives with that child’s mother in the Lower Mainland and he travels frequently to see him. He impressed me as a forthright and reasonable person who will be a support for Mother and a positive influence in the children’s lives. I find he will also continue to foster Father’s relationship with the children.

Mother and her new partner have not yet cohabited on a full time basis. [ 18 ] Mother’s previous employment in the Lower Mainland required a lengthy commute. In addition, her work environment had become toxic. Through her partner, she became aware of an opportunity and then secured employment which in the long term will require her to reside in the community to which she wishes to relocate. Mother is highly valued by her current employer and I accept that her employment would continue even if she were to end her personal relationship with her current partner.

On the other hand, there is no evidence to suggest that Mother could not find suitable employment in the Lower Mainland. [ 19 ] Mother said that she was unable to continue to service the mortgage on her home and wished to be able to reduce her expenses in order to save for the education of her children. She sold her home on the North Shore and purchased a townhouse in Port Coquitlam to provide a temporary residence while her relocation application proceeded through the courts. She has also purchased a house in the community to which she wishes to relocate which is located close to good schools for both girls.

I accept that Mother was naïve and not attempting to manipulate any decision in this matter in doing so. If she is permitted to relocate, she would have a modest mortgage payment after selling the townhouse and would be in a position to begin saving for the private school and post-secondary educational opportunities she expects the girls to pursue. In contrast, Father is accumulating debt and yet recently leased a luxury automobile “to reduce his monthly car payment”.

He is able to play golf regularly and yet is not contributing to the children’s education savings plan. [ 20 ] I accept that Mother’s wish to relocate is to better the current and long term lifestyle of the children, to allow her to continue with remunerative and rewarding employment, and to pursue a relationship with her new partner. I do not find, as Father suggests, that she is motivated by any desire to diminish his relationship with the children.

Arrangements to Preserve the Relationship between Father and the Children [ 21 ] Mother is prepared to ensure Father continues to have generous parenting time and will ensure the children are brought to the Lower Mainland to spend time with their father whenever workable. She is also prepared to accommodate Father if he wishes to exercise his parenting time in the city where she would be residing by permitting him to stay in her home.

She and her partner have access to another residence in the area and I infer the parents are familiar with what this will entail given their history of sharing homes post separation. [ 22 ] It is a four-hour drive between the North Shore and the city to which Mother wishes to relocate. Her partner regularly attends to Hope on Fridays and Sundays every second weekend to effect a parenting time exchange with his son’s mother. Mother and her new partner attend to the Lower Mainland with some frequency for work purposes. Mother is prepared to absorb some of the extra costs

which will be incurred by Father to exercise his parenting time which will result from the relocation. Best Interests of the Children [ 23 ] As noted above, these parents have been successful in co-parenting. The children “presented as being strongly attached to both parents in a way that was uncomplicated and without conflict” according to the s. 211 report. [ 24 ] The children have lived all their lives on the North Shore. They are each concerned with maintaining their relationships with Father, their half-sister, extended family, and their friends.

Mother’s extended family is in a community about two hours away and the girls are bonded with them. Father’s mother resides in the same community. Maternal Grandmother said that if the girls move, she will go to them in their new home for longer visits over the fall, winter and spring and they will still be able to spend a month with her and their extended family in the summers as they do now. They would also be able to continue to visit their extended family during Father’s parenting time at his home on the North Shore.

Similarly, they will be able to visit their current friends when staying at their father’s home. [ 25 ] Their half-sister lives in Vancouver. She is a young adult who is very busy with her education, job, and social life. She sees the girls more than once a month for dinners and outings. The girls would be able to maintain the same level of contact with her during any parenting time with Father. [ 26 ] The girls are both deeply involved in the North Shore hockey community and are avid players. Many of their friends are also involved in hockey.

The city to which mother wishes to relocate offers hockey programs for girls and the “social capital” they currently enjoy through this sport could be reestablished. [ 27 ] Not surprisingly the children do not have a desire to face the challenges of adapting to a new environment, a new school, a new hockey community, and making new friends. A transition from one community to another will be difficult for them, but I infer they are resilient and well socialized and would easily integrate into any new environment.

Analysis [ 28 ] I have carefully instructed myself not to consider whether Mother would move without the children and have also disabused myself of any information in this regard in the s.211 report. I am considering Mother’s prior purchases of real estate only as it pertains to the lifestyle the children might enjoy. I am considering Mother’s prior acceptance of employment only as it pertains to the reasons for her application to relocate and security of tenure in the new community.

I find she acted in good faith when taking these decisions. [ 29 ] I find that there are compelling reasons to allow Mother to relocate and to continue to provide the primary care for the children. Mother, who has been the primary care giver, best serves the children in terms of their health and emotional well-being and development. Simply put, she engages in substantially more of the hard work of parenting than Father. [ 30 ] The reasons for Mother’s relocation are focused on enhancing the general quality of life of the children including financial and educational opportunities.

I find that the relationship between the children and their Father will be preserved and fostered. In making this finding, I recognize that these are the factors upon which the presumption in s. 69(4) arises. I wish to be clear that I am not applying that presumption but rather my findings on these factors weigh in favour of allowing Mother’s application.

Indeed, my conclusion is one which I would have reached had I been required to apply s. 69(5) respecting the application of a relocating guardian with substantially equal parenting time exercised pursuant to a written agreement or order. [ 31 ] I intend to put in place, with the assistance of Mother and Father, a school term parenting time regime which will allow the children to be with their father whenever practicable to do so and their school holiday time will be allocated substantially in Father’s favour. [ 32 ] I do not find that the children’s involvement in hockey should be given undue weight with respect to Mother’s application to relocate.

Clearly, the relationship between the children and Father is far more important than this activity and the children may have to forgo some games and practices so that they can spend time with him. If the children continue to pursue this activity in a dedicated way, then Father may have to accommodate them by travelling to their home city during hockey season. [ 33 ] I find Father does not accept or have insight into his weaknesses as a parent and as a result it is difficult to accept he will benefit from further parenting programs or therapy to address them.

The s. 211 report was released on December 4 th of 2016. In the 7 months since Father has engaged in one parenting course involving 6 sessions. He did not inquire of Dr. England what a “parenting therapist” is or deal with her direction that such a therapist be in contact mother or other collateral references. In any event, I do not find that the concerns about his parenting identified in the s.211 report have been ameliorated by the parenting course taken. In the s. 211 report, Dr.

England observed that her recommendation that the children not be relocated was not clear cut and said at page 40, “If he shows resistance to improving certain aspects of his parenting, then this could weigh more in the direction of being less opposed to the children being relocated”. For this reason and for the reasons identified above, I do not accept the recommendation in the s. 211 report. It is regrettable that Father has not taken the opportunity presented by the report to self-reflect, accept the findings of Dr. England, and take steps to address the concerns she identified.

Instead, he has chosen to deflect responsibility by suggesting that any concerns are the result of Mother’s efforts to undermine him in order to succeed in her application. [ 34 ] I regret that the children will be uprooted and do not wish to relocate.

However, I infer their stated opposition to this has more to do with being averse to change and fear of the unknown than any substantive issue given that they will continue to enjoy their significant relationships although in a different manner. [ 35 ] As noted in the s. 211 report, both parents have consistently committed themselves to co-parenting and I have every expectation they will continue to do so. The communications between them which pre-date Mother’s notice to relocate reflect a capacity to work collaboratively to ensure the best interests of their children.

The resolution of this matter, although clearly not to Father’s satisfaction, will hopefully allow these parents to resume their previously amicable co-parenting relationship. Both parents should be proud of their

respective good work as parents and can look to their well-adjusted and happy children as living proof of that. [ 36 ] I grant Mother’s application to relocate and I dismiss Father’s application for a change to the parenting time regime except to the extent it must be changed as a result of the relocation. ______________________________ The Honourable Judge J. Challenger Provincial Court of British Columbia