S.H. v. J.W., 2019 BCPC 308

Citation: S.H. v. J.W. 2019 BCPC 308 Date: 20191205 File No: F85940 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.H. APPLICANT AND: J.W. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T. GOUGE

Counsel for the Applicant: S.E. Allan Counsel for the Respondent: F. Williams Place of Hearing: Nanaimo , B.C. Date of Hearing: July 19, 22, 23, October 9, 10, November 29, 2019 Date of Judgment: December 5, 2019 THE ISSUES [ 1 ] Ms. H. and Mr. W. are the parents of a daughter, J., now age 6. Ms. H. has married since she and Mr. W. separated, and has taken her husband’s surname. In accordance with her expressed preference, I will refer to her as Ms. R. hereafter. Mr. & Ms. R. propose to move with J. to Ontario. Mr.

W. wishes J. to remain in British Columbia, where she now resides. [ 2 ] The governing statute is the Family Law Act SBC 2011, c 25 (“the FLA ”). [ 3 ] The essential question on a relocation application is whether the child’s best interest will be served by allowing or forbidding relocation. The FLA provides that, in relation to this issue: (

i) if the parents shared “substantially equal parenting time”, the parent proposing relocation carries the onus of proof; and (ii) if the parents did not share “substantially equal parenting time”, the non-custodial parent carries the onus of proof. Three subsidiary issues arise: a. What does “substantially equal” mean in this context? b. For this purpose, is parenting time to be measured by reference to: (

i) the proportions of parenting time allocated to each parent by an existing court order or separation agreement; or (ii) parenting time actually spent with the child “on the ground”? c. As of what date, or by reference to which time period, is “substantially equal parenting time” to be measured? [ 4 ] The FLA requires a parent who wishes to change the child’s residence to give written notice of such an intention. If the other parent opposes the relocation, she or he must apply to the court for an order forbidding relocation within 30 days of receipt of the notice.

In this case, 78 days elapsed between the date on which Mr. W. received Ms. R.’s notice of relocation and the date on which he filed his application for an order prohibiting relocation. The question is what consequences should follow from the failure to file the application within the statutory time period. [ 5 ] Relocation cases are notoriously difficult. In many, perhaps most, relocation cases, there is no answer which is fair to everyone. For that reason, it is important to develop and apply clear principles to be applied in all cases.

CHRONOLOGY [ 6 ] Between [omitted for publication], 2013, when J. was born, and July, 2014, when Mr. W. and Ms. R. separated, they lived with J. as a family unit in Gibsons, British Columbia. Mr. W. and Ms. R. shared parenting duties and responsibilities. Ms. R. points out that she was a stay-at-home mom and Mr. W. was employed full-time during this period. For that reason, she suggests that they did not have substantially equal parenting time. For the reasons given below (paragraphs 44 - 46), I need not decide that question. [ 7 ] Between July, 2014 and June, 2015, Mr. W. lived next door to Ms.

R. and J. in Gibsons, British Columbia. J. was in Mr. W.’s care for 2 – 3 days each week. [ 8 ] In June, 2015, Ms. R. moved to Ladysmith, on Vancouver Island (about 30 minutes south of Nanaimo), and Mr. W. moved to his parents’ home in Gibsons. [ 9 ] The usual mode of travel from Gibsons to Vancouver Island is to take a ferry from Gibsons to Horseshoe Bay, west of Vancouver, and a second ferry from Horseshoe Bay to Nanaimo, on Vancouver Island. The ferry trip takes about 5 hours. The trip can also be made by float plane, but the cost is prohibitive for most people [ 10 ] On June 24, 2015, Mr. W. and Ms.

R. signed a separation agreement.

Article 3 of the agreement provides: … the parties will share parenting time equally on a one week on/off rotating schedule. The exchange will take place at Horseshoe Bay on Wednesday. The specific times will be agreed upon by the parties based on work and ferry schedules. [ 11 ] From June, 2015 to March, 2017, J. spent alternate weeks with each parent, one week on Vancouver Island and the following week in Gibsons. During that period, Mr. W.’s mother (who is the proprietor of a licensed home day-care) provided care for J. during Mr. W.’s work hours in the weeks when J. was in Gibsons. [ 12 ] In March, 2017, Mr.

W. moved out of his parents’ home. He was of the opinion that his new residence was not a suitable place for J. For that reason, he asked Ms. R. to suspend the parenting time regime established by the separation agreement. Ms. R. agreed. During the period March – November, 2017, Mr. W.’s parenting time with J. did not follow any regular schedule. On average, he visited J. about two weekends each month. [ 13 ] In November, 2017, Mr. W. informed Ms. R. that he had found suitable rental accommodation in Gibsons. He expressed a wish to revert to the parenting

schedule set out in the separation agreement. Ms. R. did not agree. [ 14 ] On November 9, 2017, Mr. W. filed an application to enforce the separation agreement. [ 15 ] On January 18, 2018, His Honour Judge Milne of this court made an interim order, directing that Mr. W. have parenting time “… every weekend from Friday morning until Sunday evening …” and “… at other such times as may be agreed by the parties …”.

[ 16 ] During the period January – March, 2018, with the exception of one weekend, the parties followed the parenting

schedule set out in Judge Milne’s order. [ 17 ] Judge Milne’s interim order was replaced by a consent order pronounced by His Honour Judge Meyers on March 27, 2018. That order provided that: a. “… each parent’s parenting time shall commence Saturday morning and continue until the following Saturday morning on alternate weeks”; b. “… if J.W. relocates to the Ladysmith area, the parties shall maintain an equal parenting

schedule with the details to be decided upon at a later date”; c. the parenting

schedule established by the order would expire on August 31, 2018 (when J. would be enrolled in kindergarten for the first time). The order did not specify where Mr. W. was to have his parenting time. [ 18 ] During the period March, 2018 to July, 2018, with one week-long exception, the parties followed the parenting

schedule set out in Judge Meyers’ order. [ 19 ] On July 19, 2018, Mr. W. telephoned Ms. R. to say that he was unable to care for J. because he did not have access to suitable daycare for J. while he was at work. As a consequence, he did not have parenting time with J. between July 14 and August 31, 2018. [ 20 ] J. started kindergarten in Ladysmith at the beginning of September, 2018. Mr. W. did not have parenting time with J. between August 31 and December 29, 2018. He did speak with J. on the telephone, but his telephone contact was sporadic. Sometimes, weeks would pass without any communication between Mr.

W. and J. [ 21 ] Mr. W. complains that Ms. R. frustrated his attempts to have parenting time during September - November, 2018. For the reasons given below (paragraph 39), I do not think it necessary to decide this issue. However, I think that I should state my conclusions from the evidence because an appellate court may take a different view on the question of relevance. During this period, the governing parenting regime was uncertain. Judge Meyers’ order had expired. Even if it had continued in effect, it was impractical because J. was enrolled in kindergarten in Ladysmith and Mr. W. lived in Gibsons.

It might be said that, upon the expiry of Judge Meyers’ order, the order of Judge Milne was revived, and that Mr. W. was to have parenting time every weekend. The parties behaved as if that were so. The primary bone of contention between the parents was whether Mr. W. should have his parenting time in Gibsons or in Ladysmith. Ms. R. offered him parenting time in Ladysmith. He demanded parenting time in Gibsons. Each was resolute. Neither applied to the court to resolve the question. Neither proposed any of the obvious compromises.

For example, they might reasonably have agreed that Mr W. have his parenting time in Gibsons on one visit and in Ladysmith on the next. In the result, Mr. W. did not see J. Were it necessary to reach a conclusion on the question, I would conclude that each parent failed to work cooperatively with the other to facilitate Mr. W.’s parenting time, and that each was equally responsible for the interruption of Mr. W.’s relationship with J. [ 22 ] Mr. W.’s parents visited J. in Ladysmith on five weekends between August and November, 2018. Mr. W. did not participate in those visits.

No explanation for that omission was offered in evidence. [ 23 ] During a visit on November 12, 2018, Ms. R. informed Mr. W.’s parents that Ms. R. intended to move to Ontario with J. Mr. W.’s parents informed Mr. W. of that conversation on their return to Gibsons, within a few days after November 12, 2018. [ 24 ] On November 14, 2018, Ms. R. sent an e-mail to Mr. W.

In that e-mail, she said: Due to recent circumstances, financial hardship, increased housing and living costs, and my mother’s retirement this month, we have made the decision to relocate south of Ottawa (near the Kemptville area) for March, 2019. * * * We propose you visit every 2 – 3 months, and stay for a week or so to spend quality time with [J.]. There are furnished accommodations in the area for $100 or less per night, and my sister has business plans for a b&b, so we can accommodate visits for everyone. * * * J. can eventually visit BC, if she wishes, and if [Mr. W.] maintains a contact

schedule and provides adequate and approved housing. This would likely be twice a year when we come back to visit other family members (therefore sharing some of the cost of J.’s visit). My proposal amounts to about 8 visits per year, for extended periods …. Mr. W. acknowledges that he received this e-mail on November 14, 2018, and that he read it sometime before the end of the day on November 16, 2018. [ 25 ] On November, 26, 2018, Ms. R. filed an application for an order that J. reside with her, that she exercise all parental responsibilities in relation to J., that Mr.

W.’s parenting time be at her discretion and that Mr. W. pay child support. The application was served upon Mr. W. on November 26, 2018. Under Rule 3(1) of the Provincial Court Family Rules , Mr. W. was required to file his reply to the application within 30 days; i.e. by December 27, 2018. He did not file a reply by that date. [ 26 ] Mr. W. says that he did not file his reply within the time required because he was confused about the court process. For the reasons given in paragraph 34, below, no adverse consequence resulted from his omission, which may be ignored for the purposes of this decision. [ 27 ] Mr.

W. accompanied his parents on a visit with J. on Vancouver Island on December 29 - 31, 2018. That was the first face-to-

face contact between J. and Mr. W. since July 14, 2018. [ 28 ] On December 31, 2018, Ms. R. appeared before His Honour Judge Cowling of this court to address the issues raised by her application filed on November 26, 2018 (paragraph 25, above). Mr. W. did not attend at the hearing of the application. Judge Cowling ordered that: a. Ms. R. have all of the parental responsibilities set out in

section 41 of the Family Law Act ; b. Ms. R. “… have the majority of the parenting time ..” with J.; c. Mr. W. have parenting time “… as agreed upon by the parties from time to time …”; and d. Mr. W. pay child support in the amount of $378 per month and 64% of J.’s special & extraordinary expenses. Judge Cowling’s order was expressed to be a “final order”. [ 29 ] On January 17, 2019, Mr. W. filed: a. his reply to Ms. R.’s application, opposing the relief which she sought; and b. an application to set aside Judge Cowling’s order and restore the order of Judge Meyers. The latter application was brought under the authority of

section 200 of the FLA : If an order was made in the absence of a party, the court … may change, suspend or set aside the order. [ 30 ] On January 26, 2019, Mr. W. informed Ms. R. that Mr. W. had moved to rented accommodations in Nanaimo. [ 31 ] On January 31, 2019, Mr. W. filed an application for: (

i) parenting time; and (ii) an order to prohibit the proposed relocation to Ontario. [ 32 ] On February 4, 2019, Ms. R. and Mr. W. appeared before His Honour Judge Lamperson of this court. Judge Lamperson made an interim order that Mr. W. have parenting time from 5:30 p.m. to 7:00 p.m. on February 6 and from 10:00 a.m. to 4:00 p.m. on February 10, and that the matter come back before the court for a review of parenting time on February 11. On that day, the parties appeared again before Judge Lamperson, who ordered that Mr.

W. have parenting time: a. every Wednesday and Friday from 5:45 p.m. to 7:00 p.m.; b. every Sunday from 9:00 a.m. to 1:00 p.m.; and c. “such other parenting time, including overnight visits, as may be agreed upon by the parties”. [ 33 ] On March 11, 2019, Ms. R. and Mr. W. appeared before Judge Cowling, who ordered that Mr. W. have parenting time: a. for the month of March, from Wednesday at 3:00 p.m. to Thursday morning; b. for the month of April, from Wednesday at 3:00 p.m. to Friday morning and on Saturday from 9:00 a.m. to 1:00 p.m.; and c. thereafter, from Wednesday at 3:00 p.m. to Saturday at 1:00 p.m.

Judge Cowling’s order also includes the following term: The order of Judge Cowling, pronounced December 31, 2018 will not be a final order, but an interim “without prejudice” order. In his oral reasons for judgment, Judge Cowling explained the change from a “final” order to an “interim without prejudice order” in the following terms: I do not think that we go back to week on, week off, under Judge Meyers’ orders, because that is not reflective of what has gone on.

And I think that by just declaring the December 31 st order an interim without prejudice order, that leaves it open to the trial judge at the relocation hearing to do with that what they want. It does not really resolve the question, but I will put it this way, it lets the judge push that door whatever way they want, as opposed to having sort of prejudged it. [ 34 ] I am of the opinion that the orders made by Judges Lamperson and Cowling in February and March, 2019 are to be ignored when addressing the relocation issue before me. I n K.W. v.

L.H. [2018] BCJ No. 977 ; 2018 BCCA 204 ; 11 BCLR (6 th ) 119 ; 9 RFL (8 th ) 23, Justice Goepel said @ paragraph 91: Parties involved in mobility litigation are entitled to know from the outset the legal framework that will govern their dispute. This allows them to take appropriate steps to prepare for the hearing. The framework is not dependent on whether an interim order is made while the mobility dispute is pending. An interim order made after notice of relocation has been given does not change the fundamental issues which the court has to determine on an initial application.

Such an interim order does not give rise to any legitimate expectations as to final parenting arrangements. For that reason, I need not address the complaints of procedural misconduct (in relation to those proceedings) which each parent makes about the other.

[ 35 ] The parties have complied with the parenting time provisions of the orders of Judges Cowling and Lamperson, with the result that Mr. W. has had parenting time with J. as contemplated by those orders. MR. W.’S PARENTING TIME [ 36 ] In this case: a. On the date that Ms. R. delivered notice of her intention to relocate (November 14, 2018): i. Judge Meyers’ order had expired, and not been replaced by another court order. It might be said that, upon the expiry of Judge Meyers’ order: (

i) there was no court order in effect, with the consequence that Mr. W.’s right to parenting time was that conferred by the separation agreement (i.e. week on/week off); or (ii) Mr. W.’s right to parenting time was governed by Judge Milne’s order (i.e. every weekend). In their correspondence in September – November, 2018, the parties proceeded as if the latter were correct. ii. In fact, Mr. W. had not seen J. in the previous 4 months, and had spoken with her on the telephone relatively rarely during that period. b. On the date that Mr.

W. filed his application for an order to prevent the proposed relocation (January 31, 2019): i. Mr. W.’s right to parenting time was governed by Judge Cowling’s order first order (pronounced on December 31, 2018), which entitled him to parenting time as agreed between the parties. ii. Mr. W. had seen J. only once in the preceding 6 months. c. When this application came on for hearing before me (July 19, 2019): i. Mr. W.’s right to parenting time was governed by Judge Cowling’s second order (pronounced on March 11, 2019), which provided for equal parenting time commencing May 1, 2019; ii. Mr.

W. had seen J. frequently during the period March – April, 2019 and from Wednesday to Saturday every week since May 1, 2019. As a consequence, the question whether there has been “substantially equal parenting time” depends critically on which time interval should be considered. APPLICABLE STATUTORY PROVISIONS [ 37 ] In this case, there is both an existing separation agreement and a number of existing orders which govern parenting time with J. For that reason, the governing statutory provisions are sections 65 – 71 of the FLA . To summarize: a.

Where, as in this case, there is an existing court order on the subject of parenting time, and one of the child’s guardians proposes to change the child’s residence in a manner which can reasonably be expected to materially affect the child’s relationship with another guardian, the guardian who proposes to move must give 60 days’ notice to the other guardian: sections 65 – 66. b. If the other guardian does not file an application for an order to prohibit the move within 30 days of receipt of notice of intention to relocate, “… the relocation may occur …”:

section 68. c. On an application to prohibit a relocation, the onus of proof depends on whether the opposing guardians “… have substantially equal parenting time …” with the child:

section 69. i. If the guardians do not have “… substantially equal parenting time with the child …”, the relocating guardian must satisfy the court that the proposed relocation is made in good faith, and that the relocating guardian has proposed “… reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life …”.

If the relocating guardian discharges that onus , the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise: section 69(4). ii. If the guardians have “… substantially equal parenting time with the child …”, the guardian who proposes to move carries the additional onus of proving that the proposed relocation is in the best interests of the child: section 69(5). d. The factors to be considered in determining the best interests of the child are set out in

section 37. They are: (

a) the child's health and emotional well-being; (

b) the child's views, unless it would be inappropriate to consider them; (

c) the nature and strength of the relationships between the child and significant persons in the child's life; (

d) the history of the child's care; (

e) the child's need for stability, given the child's age and stage of development; (

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(

g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward thechild or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to carefor the child and meet the child's needs; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, includingwhether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being. “SUBSTANTIALLY EQUAL PARENTING TIME” [38] The FLA does not define this phrase. [39] In M.A. v. E.O. [2018] BCJ No. 2869; 2018 BCSC 1269 @ paragraph 108, Justice Steeves concluded that the proportions ofparenting time enjoyed by each guardian should be assessed by reference to: a. time actually spent with the child; rather than b. entitlement to time with the child, as conferred by a separation agreement or court order. Mr. Williams says that: (

i) I have misconstrued Justice Steeves’ decision; (ii) it is necessary to consider both vested rights to parentingtime and parenting time “on the ground”; and (iii) where each leads to a different conclusion, it is necessary to consider why parentingtime did not occur as provided for by the applicable agreement or order. I disagree, for the following reasons: c. I think it important that relocation applications be governed by a clear set of principles of general application. d. Relocation applications are to be adjudicated under

Part 4 of the FLA.

Section 37 of the FLA provides that, in consideringapplications under

Part 4, “… the court must consider the best interests of the child only” (underlining added). Leave to relocate isrequired only where a proposed change in the child’s residence is likely to have significant impact on the child’s relationship with aguardian or other person having a significant role in the child’s life: FLA, section 64(2). So, a primary consideration on a relocationapplication is the probable effect of relocation on the child’s relationship with such people.

In the case of young children, the strength ofthe relationship is strongly correlated with the amount of time the child has spent with a particular adult. Children attach to adults whoare present, and attentive to the child’s physical and emotional needs, during the child’s early years. Separation from an adult who hasbeen a frequent, regular, consistent and supportive caregiver often has severe adverse consequences for the child. Separation from anadult who has not is less likely to give rise to such consequences.

The existence of a separation agreement or court order which has notbeen complied with is irrelevant from the child’s point of view. e. I acknowledge Mr. Williams’ observation that different considerations may apply where one parent has wrongfully preventedthe other from exercising parenting time, but this is not such a case. On the contrary, Mr. W. was, for reasons of his own, unable orunwilling to exercise his parenting time during significant periods in J.’s life. [40] By contrast, when the issue is the assessment of child support in shared-custody situations under

section 9 of the Federal ChildSupport Guidelines SOR 97 -175, the governing provisions of the FLA are found in

Part 7, to which

section 37 does not apply. Under theFederal Child Support Guidelines, the proportions of parenting time are to be determined by reference to legal entitlement, as establishedby a court order or separation agreement, rather than by actual parenting time “on the ground”: Maultsaid v. Blair 2009 BCCA 102 , [2009] BCJ No. 467; 2009 BCCA 102; 99 BCLR (4th) 147; 78 RFL (6th) 45. [41] With that acknowledged: The 40% figure, as set out in s. 9 of the Child Support Guidelines, is a useful guide for relocation purposes. … it should not beapproached as a cut-off figure in relation to relocation applications.

Rather, it is a rough guide as to the lower end of the range for equalparenting. B.A.M. v. E.M. [2014] BCJ No. 2760 2014 BCSC 2091 @ paragraph 38 [42] Mr. W.’s parenting time with J. has been inconsistent. During some periods, he has had parenting time with J. for approximately50% of the time. During other periods, he has not seen J. at all. It is therefore necessary to identify the time period, or point in time, byreference to which Mr. W.’s parenting time is to be measured. On that point, I think that I am bound to follow K.W. v.

L.H., quoted inparagraph 34, above, and to conclude that reference date for the assessment of “substantially equal” parenting time is the date of deliveryof notice of relocation. In this case, that was November 14, 2018. [43] It is to be noted that the child’s relationship with the non-custodial parent may evolve significantly between the date of deliveryof notice of relocation and the date on which a decision is rendered on an application to prohibit relocation.

For that reason, suchapplications should be brought on for hearing and concluded as soon as possible. [44] It would be absurd to consider the question by reference to a single day (November 14, 2018). If that were so: (

i) two parentswho shared a week-on, week-off parenting arrangement would not have “substantially equal parenting time”; and (ii) a parent who hadparenting time only one day per week would have “substantially equal parenting time” if notice of relocation happened to be delivered onthat day. [45]

Section 9 of the Federal Child Support Guidelines defines a shared-custody situation to be one in which each parent hasparenting time for at least 40% of the time “… over the course of a year …”. Taking that as a useful guide, I think it right to say that, in

assessing “substantially equal parenting time” for the purpose of a relocation application, one ought to consider parenting time which actually occurred “on the ground” during the 12 months preceding delivery of the notice of relocation. [ 46 ] It is clear that Mr. W. actually exercised parenting time with J. for significantly less than 40% of the time during the 12 months preceding November 14, 2018. For that reason, he carries the onus of proof on the issue of J.’s best interest. ISSUES ON WHICH MS. R. CARRIES THE ONUS [ 47 ] Ms.

R. must satisfy the court that the relocation proposal is made in good faith, and that she has proposed “… reasonable and workable arrangements to preserve the relationship between …” J. and Mr. W.. If she discharges that onus , the relocation must be considered to be in J.’s best interests unless Mr. W. satisfies the court otherwise: FLA , section 69(4) . [ 48 ] Section 69(6) of the FLA provides: For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following: (

a) the reasons for the proposed relocation; (

b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities; (

c) whether notice was given under

section 66 [notice of relocation] ; (

d) any restrictions on relocation contained in a written agreement or an order. [ 49 ] Good faith is a subjectively held state of mind. It involves an assessment of whether the reasons asserted by [the parent proposing relocation] for the proposed relocation are the real reasons for the move. If so, and if the court determines on an objective basis that relocation will likely enhance [the child’s] general quality of life, then the decision to relocate will normally be found to have been made in good faith. Pepin v. McCormack [2014] BCJ No. 2911 2014 BCSC 2230 @ paragraph 69 [ 50 ] In this case, Ms.

R. says that she wishes to move to Ontario because: a. her employment opportunities in Ontario are superior to her opportunities in British Columbia; b. her husband’s employment opportunities in Ontario are at least as good, and probably somewhat better, in Ontario than they are in British Columbia; c. the cost of housing in particular, and the cost of living generally, are lower in the small town in Ontario than they are on Vancouver Island; and d. she will have the support and assistance of her extended family in Ontario. I am satisfied that each of those assertions is probably true, and that Ms.

R. honestly and reasonably believes them to be true. [ 51 ] It is probable that the family income of Mr. & Ms. R. will be materially higher in Ontario than it has been in British Columbia. J.’s access to educational opportunities is likely to be equal in each locale. The evidence does not provide a basis for an inference as to her emotional well-being in each location. She is too young to be consulted about the decision.

She certainly has a loving relationship with her father and her paternal grandparents, but there is no evidentiary basis for a conclusion respecting the maintenance of those relationships if she relocates to Ontario. [ 52 ] Proper notice of relocation was given to Mr. W. [ 53 ] There are no terms of any existing order or agreement restricting relocation. [ 54 ] I am therefore satisfied that Ms. R.’s proposal for relocation is made in good faith. [ 55 ] The arrangements proposed by Ms. R. are too vague to allow me to assess whether they are reasonable.

However, I think that reasonable and workable arrangements can be made, and that the vagueness of Ms. R.’s proposal should not be an insuperable barrier to relocation. [ 56 ] A large part of the problem is financial. Mr. W., Ms. R. and Mr. R. are people of modest means. Travel between British Columbia and Ottawa is expensive, particularly during peak travel periods such as Christmas and statutory holidays. For that reason, frequent visits by Mr. W. will not be possible if relocation is permitted.

However, for many children, longer but less frequent visits can be equally effective in fostering the relationship between child and non-custodial parent. If the child knows that she will spend a particular time with the non-custodial parent in each year, and if the non-custodial parent arranges for that time to be spent in activities which the child enjoys, the annual ritual of visits to the non-custodial parent can be a positive force in the child’s development. [ 57 ] Mr. W.’s parents own a cottage in the Caribou region of British Columbia - an outdoor paradise.

If J. knew that she would spend a month there each year, it would be a summer holiday to look forward to. Such visits would also serve to foster her relationship with her paternal grandparents, a factor of some importance in this case. THE CONSEQUENCES OF DELAY IN FILING THE APPLICATION [ 58 ] As noted above, Mr. W.’s application for an order to prohibit relocation was filed 78 days after he received Ms. R.’s notice of

intention to relocate. The FLA required Mr. W. to file his application within 30 days of receipt of the notice of intention to relocate. [ 59 ] Mr. W. says that, although he read Ms. R.’s e-mail dated November 14, 2018 within a day or two of receiving it, he did not understand it, and so did not recognize it as an expression of intention to move to Ontario with J. Mr. Williams points out that it was a long e-mail which addressed a variety of subjects, and that the subject line at the top of the e-mail made no reference to relocation. For the following reasons, I do not accept that explanation: a. Mr.

W. says that he suffers from a cognitive deficit which impairs his ability to read. At the request of his counsel, he read a number of documents out loud during his evidence in chief. He had no difficulty reading them, and appeared to understand them fully and readily. b. Ms. R.’s e-mail (quoted in paragraph 24, above) is written in plain English, and is not difficult to understand. c. Within a few days of delivery of the e-mail, Mr. W.’s parents told him about their conversation with Ms. R. on November 12, and of her expressed intention to move to Ontario with J. If Mr.

W. were in any doubt as to the meaning of the e-mail, that communication must have made it perfectly clear to him. That being so, I need not consider the legal question whether a parent may be excused from the obligation to file an application for an order to prohibit relocation within the statutory time limit because that parent did not understand the notice of relocation. [ 60 ] The consequences of late filing were articulated by His Honour Judge Morgan in S.B. v.

N.L. [2013] BCJ No. 2028 ; 2013 BCPC 233 ; 40 RFL (7 th ) 242 @ paragraph 24: To allow a full hearing of an application to prohibit relocation that was filed after the 30 day time limit, the court will consider the reasonableness of the explanation for the late filing of the objection, the length of delay in filing, and the degree to which the relocating guardian would be prejudiced by allowing the late filed application to be heard. The degree of prejudice will relate to, among other things, the date of the proposed relocation and the planning already undertaken.

In the absence of a reasonable explanation, the court should require cogent and compelling evidence indicating relocation is not in the children's best interests. This should be a significant test to meet, and not simply a road bump that would nullify the intent of the legislature. That passage contemplates the trial of a preliminary issue; i.e. whether the court should decline to hear the application to prohibit relocation on its merits because of delay in filing the application. In this case, Ms.

R. did not ask for a determination of that preliminary issue, and allowed the application to proceed on its merits without objection. However, there remains the enhanced onus described by Judge Morgan. Because of the failure to file the application within the time provided by the statute, it is not sufficient for Mr. W. to prove, on a balance of probabilities, that relocation is not in J.’s best interest. He must provide “cogent and compelling evidence” in support of that inference.

J.’S BEST INTERESTS [ 61 ] There is no indication in the evidence that J. suffered emotionally during the period July 14 – December 29, 2018, during which she had only sporadic telephone contact with her father. By all accounts, she is a happy child who is doing well in her life. [ 62 ] It is very probable that the proposed relocation would materially enhance J.’s standard of living and that of her parents. Parents who are under financial stress often find it difficult to parent well. [ 63 ] Which is the best choice for J.? There is no clear answer to that question.

Because the answer cannot be determined with any confidence, the onus which Mr. W. carries on this application is undischarged. DISPOSITION [ 64 ] Mr. W.’s application to prohibit relocation is dismissed. Ms. R. is at liberty to relocate to Ontario with J. [ 65 ] The parties asked me to establish a

schedule for Mr. W.’s parenting time if I were inclined to permit relocation. Mr. W. will have parenting time as follows: a. each year, from the first Wednesday in July to the first Wednesday in August; b. in each even-numbered year, from December 21 to December 30. Ms. R. will bear the cost of J.’s travel during July and August each year, and will arrange for her to be accompanied by a responsible adult while travelling if such accompaniment is required. Mr.

W. will pay J.’s travel costs during the Christmas holiday in even- numbered years, and will arrange for her to be accompanied by a responsible adult while travelling if such accompaniment is required. [ 66 ] One would have thought that Mr. W. and Ms. R. could agree on a

schedule for telephone or Skype communication between Mr. W. and J. However, their history gives little reason for optimism on that subject. Absent agreement on the point, Mr. W. will be entitled to a telephone or Skype call with J. every Sunday from 1:00 p.m. to 1:30 p.m. (Pacific time) when J. is in the care of Ms. R., and Ms. R. will have the same entitlement when J. is in the care of Mr. W. _____________________________ The Honourable Judge Gouge

Provincial Court of British Columbia