B.B. and G.B., 2022 BCPC 162

Citation: B.B. and G.B. 2022 BCPC 162 Date: 20220816 File No: 10890 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: B.B. APPLICANT AND: G.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Applicant: A. Huang Counsel for the Respondent: G. Grewal Place of Hearing: Prince Rupert , B.C. Date of Hearing: November 1, 2, 2021, June 28, 29, July 5, 7, August 11, 2022 Date of Judgment: August 16, 2022

I. INTRODUCTION [ 1 ] G.B. and B.B. are both 38 years of age . They grew up in Prince Rupert, British Columbia, attended grade school together, and started dating in August of 2001 when they were 17 years of age. In December of 2009, t hey began living together and they got married on [omitted for publication]. They have three children: L. (age [omitted for publication]), O. (age [omitted for publication]), and E. (age [omitted for publication]). The children have lived their entire lives in Prince Rupert. [ 2 ] The Mother and the Father separated in September of 2018.

They both remained living in the family home with the children until December of 2018. They sold the family home in December 2018 and split the sale proceeds. Each parent subsequently purchased a new home in Prince Rupert. [ 3 ] The Mother and the Father are both guardians of the children pursuant to s. 39 of the Family Law Act. Orders Sought [ 4 ] On October 3, 2020, the Mother gave the Father written notice as required by s. 66 of the FLA of her intention to relocate with the children from Prince Rupert to Smithers, British Columbia.

On October 13, 2020, the Father filed an s. 68 FLA application seeking an order to prevent the relocation of the children to Smithers. The Mother now seeks an order pursuant to s. 69(2) of the FLA permitting her and the children to relocate to Smithers. [ 5 ] Due to the

schedule of counsel and the court, I heard evidence on November 1 and 2, 2021, plus on four additional days in 2022: June 28, June 29, July 5, and July 7. After hearing a full day of submissions by counsel on August 11, 2022, I undertook to get my Reasons for Judgment to the parents as quickly as possible so that the parents and children would have certainty about the children’s residency and school placement for the upcoming school year that begins in September 2022. Issues [ 6 ] The major issues to be decided include: 1. Do the Mother and Father share substantially equal parenting time with the children? 2.

Is the proposed relocation by the Mother and children to Smithers likely to enhance the general quality of life of the children? 3. Is the proposed relocation by the Mother and children to Smithers in the best interests of the children? 4. Should the court grant the Mother’s application to relocate with the children to Smithers? 5. What are the parenting arrangements for the children to be after the court grants or denies the Mother’s application?

Relevant Legislation [ 7 ] As there is already a court order that sets out the parenting schedule, determination of the Mother’s application to relocate with the children to Smithers is governed by

Part 4, Division 6 of the FLA, and not

section 46 of the FLA . Furthermore, s. 37 and s. 65 to s. 71 of the FLA are relevant to the dispute in the present case. Best interests of child 37

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following: (

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 the child 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 care for 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, including whether 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.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor. Definition and application 65

(1) In this Division, "relocation" means a change in the location of the residence of a child or child's guardian that can reasonably be expected to have a significant impact on the child's relationship with (

a) a guardian, or (

b) one or more other persons having a significant role in the child's life.

(2) This Division applies if (

a) a child's guardian plans to relocate himself or herself or the child, or both, and (

b) a written agreement or an order respecting parenting arrangements or contact with the child applies to the child. Notice of relocation 66

(1) Subject to subsection (2), a child's guardian who plans to relocate himself or herself or a child, or both, must give to all other guardians and persons having contact with the child at least 60 days' written notice of (

a) the date of the relocation, and (

b) the name of the proposed location.

(2) The court may grant an exemption from all or part of the requirement to give notice under subsection (1) if satisfied that (

a) notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child, or (

b) there is no ongoing relationship between the child and the other guardian or the person having contact with the child.

(3) An application for an exemption under subsection (2) may be made in the absence of any other party. Resolving issues arising from relocation 67

(1) If notice is required under

section 66 [notice of relocation] , after the notice is given and before the date of the relocation, the child's guardians and the persons having contact with the child must use their best efforts to cooperate with one another for the purpose of resolving any issues relating to the proposed relocation.

(2) Nothing in subsection (1) prevents (

a) a guardian from making an application under

section 69 [orders respecting relocation] , or (

b) a person having contact with the child from making an application under

section 59 [orders respecting contact] or 60 [changing, suspending or terminating orders respecting contact] , as applicable, for the purpose of maintaining the relationship between the child and a person having contact with the child if relocation occurs. Child may be relocated unless guardian objects 68 If a child's guardian gives notice under

section 66 [notice of relocation] that the guardian plans to relocate the child, the relocation may occur on or after the date set out in the notice unless another guardian of the child, within 30 days after receiving the notice, files an application for an order to prohibit the relocation. Orders respecting relocation 69

(1) In this section, " relocating guardian " means a guardian who plans to relocate a child.

(2) On application by a guardian, a court may make an order permitting or prohibiting the relocation of a child by the relocating guardian.

(3) Despite section 37 (1) [best interests of child] , the court, in making an order under this section, must consider, in addition to the factors set out in section 37 (2), the factors set out in subsection (4) (

a) of this section.

(4) If an application is made under this

section and the relocating guardian and another guardian do not have substantially equal parenting time with the child,

(

a) the relocating guardian must satisfy the court that (

i) the proposed relocation is made in good faith, and (ii) t he 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, and (

b) on the court being satisfied of the factors referred to in paragraph (a), the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise.

(5) If an application is made under this

section and the relocating guardian and another guardian have substantially equal parenting time with the child, the relocating guardian must satisfy the court (

a) of the factors described in subsection (4) (a), and (

b) that the relocation is in the best interests of the child.

(6) 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.

(7) In determining whether to make an order under this section, the court must not consider whether a guardian would still relocate if the child's relocation were not permitted. If relocation permitted 70

(1) If the court makes an order under

section 69 [orders respecting relocation] that permits a child's relocation, the court may make any of the following orders: (

a) subject to subsection (2) of this section, if the order made under

section 69 affects an agreement or order that allocates parenting arrangements between the relocating guardian and another guardian, an order under

section 45 [orders respecting parenting arrangements] or 47 [changing, suspending or terminating orders respecting parenting arrangements] , as applicable; (

b) any order necessary to ensure that the relocating guardian complies with the terms of the order permitting relocation, including an order to do one or more of the following: (

i) give security in any form the court directs; (ii) transfer specific property to a trustee named by the court.

(2) In making an order under subsection (1), the court must seek to preserve, to a reasonable extent, parenting arrangements under the original agreement or order. Not a change in circumstances 71 The fact that an order is made that prohibits a child's relocation is not, in itself, a change in the child's circumstances for the purposes of

section 47 [changing, suspending or terminating orders respecting parenting arrangements] .

Summary of Decision [ 8 ] For the reasons that follow, I find that: 1. For purposes of the proposed relocation by the Mother and children to Smithers, the Mother and Father share substantially equal parenting time with the children and therefore s. 69(5) of the FLA is applicable. 2. The proposed relocation by the Mother with the children to Smithers is not likely to enhance the general quality of life of the children. 3. The proposed relocation by the Mother and children to Smithers is not in the best interests of the children. 4.

The court should not grant the Mother’s application to relocate with the children to Smithers. 5. It is in the best interests of the children that their parents continue to share equally in the parenting time of the children on a week-on / week-off basis, with the children attending school in Prince Rupert and continuing in their sports and other activities in Prince Rupert. II. BACKGROUND

[ 9 ] As discussed above, the Mother and Father separated in September 2018, although they both remained living in the family home with the children until December 2018. [ 10 ] Due to an incident of great concern to the Mother in the Fall of 2018, after the parents had separated, the Mother would not allow the Father to have parenting time with the children unless it was supervised. The Mother’s position arose after an incident in which [omitted for publication]-month old E. found a small baggie of cocaine in the house that the Mother and Father were sharing.

The Father denied that the cocaine was his, but conceded that one of his friends may have brought the cocaine into the house during a poker night. The Father also told the Mother that he had used cocaine once or twice, a fact that she did not know.

Court Orders [ 11 ] On January 9, 2019, because of the cocaine incident, Judge Stewart made an interim consent order at a Family Case Conference that the Father’s parenting time with the children would include two unsupervised weekends each month in accordance with the Father’s work schedule, plus further supervised parenting time as agreed to by the parents. [ 12 ] On March 14, 2019, Judge Stewart made a subsequent interim order, clarifying that the Father’s two weekends of unsupervised overnight parenting with the children each month must occur at the residence of the paternal grandparents, the residence of the Father’s brother and sister-in-law, or at such other location as approved of by the Mother.

Judge Stewart also ordered that the Father would have specified supervised parenting time with the children on the days he was not working from 8:30 AM until 6:30 PM. [ 13 ] Later in 2019, the parents attended mediation and reached terms for an extensive consent order, which was made on June 20, 2019 by Judge Seidemann III. The consent order provided that the parties share the parental responsibilities for the children, that the Father have parenting time with the children on his days off work, and that the Father pay to the Mother: (

a) child support in the sum of $924 bi-weekly, (

b) spousal support in the sum of $200 per month, and (

c) the cost of the children’s private school tuition.

The parents were also to meet with a Family Justice Counsellor in 2020 to review the terms of Judge Seidemann III’s order. [ 14 ] On January 28, 2021, I made an interim “without prejudice” order at a Family Case Conference that beginning February 1, 2021, that the parents share equally in the parenting time of the children on a week-on / week-off basis. [ 15 ] On May 3, 2021, Judge Struyk made a consent order suspending all enforcement measures by the Family Maintenance Enforcement Program against the Father until November 30, 2021, or as otherwise agreed to by the parents or further order of the court.

Judge Struyk also ordered on a “without prejudice” basis that every second Friday the Father pay $800 for ongoing child support and towards child support arrears, with the parties or further order of the court determining the proportion of the bi-weekly $800 payments attributable to current child support and to child support arrears. The Children [ 16 ] All three children are settled in their lives, activities, and friendships in Prince Rupert. They currently have little connection to Smithers and have not spent much time there since birth.

L. [ 17 ] In September 2022, L. will be going into [omitted for publication], a private school that he has attended since kindergarten. In his 2020-21 school report card, which was entered as an exhibit, the Teacher Overall Comment stated, [L.] is a treasured member of our class community; his gentle spirit, enthusiasm for learning and desire to do well add much to our classroom atmosphere.

He often shares his ideas and knowledge during class discussions and demonstrates growth in his ability to articulate his ideas speak with confidence. [L.] uses his class time wisely and is always motivated to do his personal best. He is responsible and takes care of his belongings. [L.] appreciates and values his friendships and treats all of his peers and teachers with respect. He is a total delight to teach. [ 18 ] L. has asthma and he uses an inhaler. L. has been experiencing some stress and anxiety, which the Father attributes to the uncertainty of where L. and his siblings will be living.

During a sleepover at his paternal grandmother’s house, L. was noted to be pretty stressed out and anxious. He was having problems falling to sleep and told his grandmother, "I'm worried about going to Smithers." L. has also told the Father’s fiancé A.S. that he really does not want to leave [omitted for publication] School or his friends in Prince Rupert. [ 19 ] L. has a close group of friends in Prince Rupert, many of whom are his classmates and teammates. L. is apparently very active, excelling in several sports, including basketball, hockey and soccer.

L. was described in the evidence as a team leader, a role model, and a supportive teammate. He was also described as being mature, well-mannered, well-spoken and funny. A responsible child. He has taken the “Home Alone Safety for Kids” course through the Red Cross and in response to his desire to get a bike, found a part-time job at the [omitted for publication]. O. [ 20 ] In September 2022, O. will be going into Grade [omitted for publication]. In his 2020-21 school report card, which was entered as an exhibit, the Teacher Overall Comment stated, [O.] continues to work hard in [omitted for publication].

He has shown improvement in all areas of his work schoolwork. He is demonstrating a new found confidence when completing his written assignments. He is excited about reading, often volunteering to go

first. This is a stark contrast to the work habits we were seeing just a few months ago. I am so encouraged by [O.’s] progress. His printing has shown improvement both in quality and quantity of writing. [O.] still struggles to stay focused during lesson times, but we will continue to move forward. He is managing his frustrations when an assignment is difficult. His self-regulation during these more challenging times has really helped him grow in his learning. [O.] is always compliant when asked to go back and fix any errors in his work. He has a desire to do well which makes all the difference.

Way to go [O.]! [ 21 ] O. was diagnosed with Attention Deficit Hyperactivity Disorder in 2020, for which he takes medication and engages in other self-regulation activities, such as box breathing which the Father taught him. O. also finds participating in organized sports to be helpful. [ 22 ] Over the past calendar year, O. has apparently progressed significantly and had an excellent grade [omitted for publication] year. O. has gained more self-confidence and now enjoys school, having gone from not wanting to do schoolwork to working hard.

Having a routine to follow has allowed his reading to improve and while he is not yet at the grade [omitted for publication] level, his reading is significantly better than it was. [ 23 ] Like his brother, O. is very engaged in team sports, including basketball, hockey and soccer. A year ago, O. had announced that he was “retiring” from hockey, but then he decided to play this past season and apparently excelled. O. has many close friends at school, on his sports teams, and in his neighbourhood. E. [ 24 ] E. is set to start kindergarten in September 2022.

Her best friend is N., who, like E. and E.’s other good friend E(2), will be attending [omitted for publication] for kindergarten next month. [ 25 ] E. was described as being very bubbly with a cute personality. By all accounts, she is a very sweet little girl, albeit a bit shy. She has tried dance and soccer, taken swimming lessons, and is a very active child. Her Mother and Father both love and care for her greatly. Extended Family [ 26 ] The Mother’s mother J.M. lives in Smithers with the Mother’s step-father D.M. The Mother also has extended family on her father’s side living in Smithers.

The Mother’s father, C.W., and the Mother’s cousins, J.W. and N.W., live in Prince Rupert. The Mother’s sister M. lives in Kitimat, British Columbia, and her sister E.(3) lives in Terrace, British Columbia. L., O. and E. are close to their maternal grandmother, maternal step-grandfather, maternal grandfather, and their cousins on their mother’s side. [ 27 ] The Father’s immediate family live in Prince Rupert, including his parents, his brother and his brother’s wife, and their two children J. and K. L., O. and E. are close to their paternal grandparents, uncle, aunt and cousins.

The Father also has other relatives who live in Prince Rupert, whom the children know and interact with regularly. Employment [ 28 ] The Mother has a university business degree. Over the past 11 years, as the couple had children, the Mother took maternity leave and acted as a full-time stay-at-home mom to the children, before returning to the workforce and employment in a number of jobs. Furthermore, she returned to school and studied diligently, earning accreditation as a human resources professional.

In December of 2021, the Mother relocated to Smithers and began a career with [omitted for publication] in Smithers, in their human resources department. Her 2021 Total Income reported to the Canada Revenue Agency was $36,704. She currently is working full-time and making $25 per hour at [omitted for publication]. With 80 hours worked every two weeks during a Monday to Friday schedule, the Mother anticipates earning a gross salary of $52,000 in 2022.

She hopes that she will soon gain a Chartered Professional Human Resources designation, which will allow her to earn an income up to and perhaps in excess of $80,000 per annum. [ 29 ] The Father attended university in the United States and Canada. Since July of 2012, the Father has been working full-time as a [omitted for publication] in Prince Rupert and is now an acting [omitted for publication]. In 2021, he earned $150,965 Total Income as reported to the Canada Revenue Agency, including $36,935 in retroactive pay for the years 2018 to 2021. The Father’s work

schedule is unusual in that he works a four-week cycle as follows: 1. Four day shifts -- Monday, Tuesday, Wednesday & Thursday 2. Seven days/nights off – Thursday (after day shift, 6:00 pm) to Thursday (start of night shift, 6:00pm) 3. Four night shifts – Thursday, Friday, Saturday, Sunday 4. Four days/nights off – Monday, Tuesday, Wednesday, Thursday 5. Three day shifts – Friday, Saturday, Sunday 6. Three night shifts – Monday, Tuesday, Wednesday 7.

Four days/nights off – Thursday (after night shift at 8:00 am), Friday, Saturday, Sunday Accordingly, in each four-week cycle, the Father works 14 days/nights total: seven-day shifts and seven-night shifts. The Father’s day shifts are from 8:00 am to 6:00 pm, while his night shifts are from 6:00 pm to 8:00 am. III ANALYSIS 1. Do the Mother and Father share substantially equal parenting time with the children? [ 30 ] The Mother argued strenuously that she was the primary caregiver for the children prior to the breakdown of the parent’s

relationship in September of 2018 and that due to the Father’s work commitments and social activities, the children were in his care less than 40% of the time. Following the parent’s breakup in September of 2018, until the order of January 28, 2021, the Mother says that she enjoyed approximately 70% of the parenting time. The Mother also submits that because the January 28, 2021, interim order I made was “without prejudice,” I should give little to no weight to the parenting time the Father has had with the children over the past 17 months.

She urges me to follow and apply the logic and law expressed by Judge Gough in S.H. v. J.W. , 2019 BCPC 308 at paragraph 42 , and find the reference date for the assessment of “substantially equal parenting time” is the date of delivery of the Mother’s notice of relocation. In other words, October 3, 2020. Accordingly, the Mother says that the Father has not had “substantially equal parenting time” with the children and therefore s. 69(4) of the FLA is the applicable

section for the court to apply and rely upon. [ 31 ] Not surprisingly, the Father disagrees with the Mother’s calculations and characterization of the parenting time he enjoyed with the children both before and after the breakdown of the parent’s relationship. Based upon the totality of the evidence, I do not accept that the Father was a distant or inactive parent before separation as the Mother testified. I find that he was involved in the children’s lives equally with that of the Mother and he did not need encouragement to take on child-care duties.

Since separation, I find that the Father has continued to be fully engaged with the children and capable, as is the Mother, of looking after the children. [ 32 ] The Father urges the court to consider that had Judge Stewart been aware in January of 2019 of the actual evidence concerning the baggie of cocaine that E. discovered and turned over to her Mother in the Fall of 2018, there would have been no need for the court to have imposed the restrictive conditions on the Father’s parenting time with the children in the first place.

A restriction that the Mother now relies upon in support of her position the Father was enjoying only 30% of the parenting time between the date of separation and January 28, 2021. Finally, the Father submits that the week-on / week-off parenting time over the past 17 months is both important to consider and a true representation of the parenting time the Father has historically enjoyed with the children. Accordingly, on the facts of the present case, the Father submits that S.H. v. J.W. is distinguishable. [ 33 ] It is important to note that unlike the situation in S.H. v.

J.W. -- where the father was inconsistent in exercising his parenting time and thus exercised significantly less than 40% of the parenting time prior to the notice of relocation being served -- I find in the present case that but for the unilateral decision of the Mother to restrict the Father’s parenting time in the Fall of 2018, combined with the January 9, 2019, and March 14, 2019, orders of Judge Stewart, the Father would have enjoyed more than 40% of the parenting time prior to October 3, 2020.

I base my findings on the fact that the evidence was clear that since the date of their separation, the Father has always wanted equal parenting time with the children and his work

schedule would not have restricted his ability to exercise 40% or more of the parenting time. [ 34 ] In listening to and considering the evidence concerning E. and the baggie of cocaine, I conclude that there is no evidence to support the theory that the baggie of cocaine belonged to the Father. Rather, it is more likely than not, that one of the Father’s friends irresponsibly brought the baggie of cocaine into the residence while attending a poker night. The Father subsequently took reasonable steps to investigate how the baggie of cocaine got into the residence.

The Father confronted his friends and made it clear that cocaine and other drugs are never welcome or permitted into his home. [ 35 ] I am of the view that the Mother’s response to the cocaine incident, while understandable, was an overreach.

By restricting the Father’s parenting time and requiring the Father to have daytime supervised parenting time and sleepovers with the children only at the Father’s parent’s residence or the residence of the Father’s brother, the Mother artificially and without just cause limited the Father’s parenting time to less than 40% for the time period leading up to her October 3, 2020, notice to relocate.

Accordingly, I am of the view that the only reason the Father did not exercise 40% or more parenting time between September of 2018 and January 28, 2021, was the overreaction to what has been quite properly characterized as a potentially life threatening situation for the then [omitted for publication]- month old E. [ 36 ] I am also of the opinion that if Judge Stewart, who made the January 9, 2019, interim order during the course of a Family Case Conference, had had the benefit of hearing the evidence I heard during the trial, he would not have made the January 9, 2019, or March 14, 2019, interim order limiting the Father’s parenting time or requiring the parenting time to be supervised. [ 37 ] Having recognized the reason for the inability of the Father to exercise 40% or more of the parenting time between the date of separation and January 28, 2021, it would be unfair of me to penalize the Father for the reduced parenting time the Mother and court allowed prior to his being served with the notice to relocate.

As noted at paragraph 41 in S.H. v. J.W. , [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 be approached 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 equal parenting. B.A.M. v. E.M. [2014] BCJ No. 2760 2014 BCSC 2091 at paragraph 38 [ 38 ] As a result, I find that s. 69(5) of the FLA is applicable in the present case and t he Father has had substantially equal parenting time with the children since the date of separation. 2.

Is the proposed relocation by the Mother and children to Smithers likely to enhance the general quality of life of the children? [ 39 ] I commented during submissions that based upon the trial evidence, I have no doubt that the Mother’s December 2021 relocation to Smithers will benefit her career aspirations and make her life more enjoyable. She is now living with her mother and step-father in their home on an acreage outside of Smithers and has what sounds to be good full-time employment with [omitted for publication] in her chosen human resources field, including a b enefits program and vacation time.

Her employment and living situation since December

2021 have allowed her to keep and maintain her residence in Prince Rupert, a convenient and safe location for her to exercise her parenting time with the children. Accordingly, she had been able to maintain the week-on / week-off parenting time schedule, despite the move to Smithers.

When she has been unable to be in Prince Rupert for her week-on with the children, her mother or step-father have made the trip and taken care of the children. [ 40 ] Travel between Smithers and Prince Rupert takes approximately four hours during the Summer months, but can be treacherous and far more time-consuming during the October to April time period.

Regardless of whether it is the Mother or Father driving between the cities, or to an approximate half-way drop off point such as Terrace, it is a reality that travel will consume a considerable amount of time for both the Mother and Father moving forward, regardless of where the children reside. [ 41 ] In reviewing the Mother’s evidence, it is apparent that she wishes the best for her children. Nevertheless, I agree with counsel for the Father that the Mother does not appear to have given due consideration to the impact that relocation to Smithers would have on the emotional well-being of the children.

The Mother is clearly of the view that children are resilient and that they will adapt to life in Smithers, make new friends, and find new sports teams to compete on. [ 42 ] The family support that the Mother has in Smithers are her mother and step-father. The Mother did not provide evidence as to alternate care for the children if her mother and step-father are away on vacation or ill, or if they are otherwise unable to care for the children.

Given that the Mother is residing on an acreage approximately 10-minutes outside of Smithers, there has been a lack of evidence concerning relatives, neighbours or other persons who could help care for the children or take them to, or pick them up, from school or their extra-curricular activities. L. and O., in particular, have multiple and diverse sporting activities which often require being at, and transported to, different places at the same time. [ 43 ] The evidence shows that while all three children love and are close to the Mother, they are equally close to and love the Father.

Prince Rupert is the only community the children have ever known and they have significant support in Prince Rupert. The paternal grandparents, the maternal grandfather, the children’s extended family -- on both the Mother’s and Father’s side -- and almost all of the children’s friends, teammates, teachers and coaches -- reside in Prince Rupert. The Mother’s cousin and good friend J.W., who has a close relationship with all three children but particularly so with O., who she calls O., now lives in Prince Rupert and she testified that she would help the Mother with the children in any way.

A move to Smithers would require all three children to start over in building their lives, which are currently very fulsome and well established in Prince Rupert. [ 44 ] So while I have no doubt that the Mother’s December 2021 move to Smithers has increased her emotional and financial well- being, t here is nothing in the evidence to support the proposition that the proposed relocation to Smithers is likely to enhance the general quality of life of the children. In fact, just the opposite.

Their lives will be disrupted, relationships severed, and in O.’s case, a real possibility exists that he could regress in his progress. In considering the history of the care of the children and the children’s relationships with others, I can reach only one conclusion: the Mother’s plan to relocate with the children to Smithers does not include a more probable than not outcome of the children’s lives being enhanced. Accordingly, I find that the Mother has not satisfied the court of the factors described in s. 69(4)(

a) of the FLA as required by s. 69(5)(

a) of the FLA. 3. Is the proposed relocation by the Mother and children to Smithers in the best interests of the children? [ 45 ] Given the evidence in the present case, I have no difficulty finding that it is in the children’s best interest to spend equal time with their Mother and Father. As such, t he limits relocation of the children to Smithers would put on their access to and parenting time with the Father weighs heavily against relocation. Section 37(1) of the FLA states that when making an order respecting parenting arrangements, the court must consider the best interests of the children.

Section 37(3) further states that an order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security, and well-being. [ 46 ] I agree with the Mother that Smithers offers many great opportunities for young children, including a ski hill with world-class powder snow and four distinct seasons of weather. However, I do not consider the opportunities in Smithers to be necessarily better than what Prince Rupert has to offer. L. and O. are living tremendously active lives as young athletes growing up in Prince Rupert.

They are living proof of Prince Rupert’s many offerings and possibilities for children. It is anticipated that E. may take after her siblings, who took after the Mother and the Father, and be an athletic powerhouse. [ 47 ] As discussed above, the children have loving and important relationships with their extended families, including relatives from both the maternal and paternal sides of the family. It is in the children’s best interest that all of these relationships be nourished, which can best be accomplished if the children remain situated in Prince Rupert and do not relocate to Smithers.

To do otherwise would ignore the actual realities of children’s lives. I find the children’s connections with their paternal grandparents and Uncle R. and his family to be particularly strong.

The variety of family and close relationships that have developed over the years between the children and their relatives in Prince Rupert is a significant factor favouring rejecting the Mother’s relocation with the children to Smithers. [ 48 ] Given the weight of the evidence, I cannot find that the children’s best interests, including their physica l, emotional and psychological safety, security and well-being, lie in relocating with their Mother to Smithers. Accordingly, I find that the Mother has not satisfied the court of the factor described in s. 69(5)(

b) of the FLA. [ 49 ] Accordingly, the Mother has not met the onus on her as set out in s. 69(5) of the FLA. 4. Should the court should grant the Mother’s application to relocate with the children to Smithers? [ 50 ] The Mother has not provided in her testimony any faults or shortcomings in the Father’s parenting of the children, save and except her assertions regarding the Father’s consumption of alcohol and illicit drugs, plus his occasional gambling. The Father denied any issues with such vices in the sense that they do or could affect his ability to care safely and fully for the children.

The Mother did not include in her parenting proposal any restrictions on the Father’s parenting of the children, nor did she refer to any incidents since separation in September 2018, in which the children were at risk of harm while in the Father’s care, with the exception of E. finding the baggie of cocaine in the Fall of 2018. Finally, I was not given a reason that the week-on / week-off parenting time arrangement cannot

continue, with the children attending school in Prince Rupert and participating in extra-curricular activities based in Prince Rupert. [ 51 ] The evidence led by both parents during the course of the trial, my conclusions set out above, and the requirements of s. 69(5) of the FLA, lead to only one conclusion: the Mother has not shown on a balance of probabilities that she should be allowed to relocate to Smithers with the children. Accordingly, pursuant to s. 69(2) of the FLA, I will be making an order prohibiting the relocation of the children to Smithers by the Mother. 5.

What are the parenting arrangements for the children to be after the court grants or denies the Mother’s application? [ 52 ] Moving forward, the Mother and the Father will continue to share equally in the parenting time of the children on a week-on / week-off basis. The children shall be enrolled in school in Prince Rupert.

The children will continue to have their sports and other extracurricular activities based out of Prince Rupert. [ 53 ] If the Mother, due to work considerations or otherwise, is unable to personally be in Prince Rupert to exercise her week-on parenting time with the children, she shall notify the Father at least 48 hours in advance and the Father shall have the right, in his sole discretion, to exercise parenting time with the children while the Mother is physically not in Prince Rupert.

If the Father declines exercising parenting time with the children during the Mother’s week-on when the Mother is not physically able to be in Prince Rupert, then it is the Mother’s responsibility to find another responsible person to look after the children until she is physically in Prince Rupert or her week-on ends. IV. CONCLUSION [ 54 ] The Mother’s application to relocate to Smithers with the children is dismissed.

Furthermore, pursuant to s. 69(2) of the FLA, the Mother is prohibited from relocating the children to Smithers. [ 55 ] The parties shall set a half-day hearing in front of me for consideration of the following issues: 1. What, if any, child support is payable by either parent? 2. What, if any, child support arrears are due and owing from the Father to the Mother? 3. What, if any, spousal support is payable by the Father to the Mother? 4. What, if any, special or extraordinary expenses exist, and who will pay for the special or ex traordinary expenses. [ 56 ] The court makes the following final orders: 1.

The January 9, 2019, interim consent order made by Judge Stewart is terminated. 2. The March 14, 2019, interim order made by Judge Stewart is terminated. 3. Paragraphs 2(b), 2(c), 3, 4, 5, 6, 7, 12, 13, 14, 19, 20, 21, and 22 of the June 20, 2019, consent order made by Judge Seidemann III, are terminated. 4. The January 28, 2021, interim consent order made by Judge Patterson is terminated. 5. Paragraph 4 of the May 3, 2021, interim consent order made by Judge Struyk is terminated. 6. The Mother and the Father will share equally in the parenting time of the children on a week-on / week-off basis.

The children shall be enrolled in school in Prince Rupert. The children will continue to have their sports and other extracurricular activities based out of Prince Rupert. 7. If the Mother, due to work considerations or otherwise, is unable to personally be in Prince Rupert to exercise her week-on parenting time with the children, she shall notify the Father at least 48 hours in advance and the Father shall have the right, in his sole discretion, to exercise parenting time with the children while the Mother is physically not in Prince Rupert.

If the Father declines exercising parenting time with the children during the Mother’s week-on when the Mother is not physically able to be in Prince Rupert, then it is the Mother’s responsibility to find another responsible person to look after the children until she is physically in Prince Rupert or her week- on ends. 8. The parties shall set a half-day for submissions in front of Judge Patterson to determine the outstanding issues related to ongoing child support, child support arrears, spousal support and determination of any special or extraordinary expenses related to the children.

All of which is ordered this 16 th day of August, 2022. The Honourable Judge D. Patterson Provincial Court of British Columbia