K.L. v. A.P., 2022 BCPC 214

Citation: K.L. v. A.P. 2022 BCPC 214 Date: 20220928 File No: F-23156 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: K.L. APPLICANT AND: A.P. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.V. SACCA Counsel for the Applicant: B. Pearce Counsel for the Respondent: J. Stamm Place of Hearing: Victoria , B.C. Dates of Hearing: May 24, 25 and 26, 2022 Date of Judgment: September 28, 2022

[ 1 ] This is Ms. A.P.’s Application seeking to relocate to Seattle, Washington with the parties’ daughter E.P.-L. (“E.P.-L.”) under s. 65 of the Family Law Act (the Act ). Mr. K.L. does not agree with the relocation. A three-day trial was held in this matter. [ 2 ] At the time of trial, Ms. A.P. was 37 years old, Mr. K.L. was 42 years old, and E.P.-L. was 3 years old. Background [ 3 ] By way of background, Ms. A.P. and Mr. K.L. met on a dating application on or about June 29, 2018. A relationship quickly ensued and Ms. A.P. became pregnant three weeks later. Mr.

K.L., a member of the Department of National Defence, was scheduled to leave on a five-month deployment. He left on July 29, 2018 two days after finding out Ms. A.P. was pregnant. They were virtual strangers to one another when Mr. K.L. left. They unfortunately came to know one another under extremely challenging circumstances. [ 4 ] They continued to communicate while Mr. K.L. was deployed however their communication quickly deteriorated. Ms. A.P. ended the relationship approximately four months into her pregnancy. Facing the remainder of her pregnancy alone, and the birth of a child as a single parent, Ms.

A.P. moved from Victoria to her hometown of Nanaimo, where she had the support of her father, two brothers, extended family, friends and the availability of less expensive housing adequate for herself and a baby. [ 5 ] Mr. K.L. returned from his deployment at the end of 2018. E.P.-L. was born on [omitted for publication]. [ 6 ] Ms. A.P. facilitated parenting time for Mr. K.L. and regularly invited him into her home to spend time with E.P.-L. She would leave her home, return to breastfeed, and leave again to give Mr. K.L. privacy and space to parent. [ 7 ] Mr.

K.L. brought an application to this Court for parenting time. Various Orders were made including:

a) Order of October 7, 2019 wherein Mr. K.L. was granted parenting time of no less than four hours per week;

b) Order of January 30, 2020 increasing parenting time to four hours on Fridays and two hours on Saturdays; and

c) Order of February 14, 2020 increasing parenting time to approximately nine hours per week. [ 8 ] Ms. A.P. moved back to Victoria from Nanaimo in the spring of 2020 to facilitate a closer relationship between E.P.-L. and Mr. K.L. She did so despite the higher cost of housing and the lack of familial supports. [ 9 ] Following Ms. A.P.’s move, parenting time increased by consent such that E.P.-L. was in Mr. K.L.’s care for a few hours almost each day before or after daycare and extended time on Saturdays. [ 10 ] Ms. A.P. entered into a new relationship in early 2020 with her now spouse, Dr.

P., who resides in Seattle, Washington. Mr. K.L. filed an Application about a Family Law Matter on January 15, 2021 seeking shared parenting time and parental responsibilities. Ms. A.P. filed a Reply and Counterclaim on February 22, 2021 providing Mr. K.L. with her notice of intention to relocate to Seattle with E.P.-L. At the time, she had E.P.-L. in her primary care. [ 11 ] By Minutes of Settlement dated April 15, 2021, the parties agreed to increase Mr. K.L.’s parenting time to include five overnights every two weeks such that he had E.P.-L. in his care approximately 35% of the time.

They further agreed to retain a Parenting Co-ordinator to assist in their parenting given the level of ongoing acrimony between them which I will describe in greater detail later in this judgment. [ 12 ] Ms. A.P. provided notice of her intention to relocate to Seattle once again by email dated October 7, 2021. The parties subsequently attended a Family Management Conference on November 18, 2021 and consented to an interim order sharing parenting time equally. The parties were ordered to stand trial on the issue of relocation. Evidence at Trial [ 13 ] Ms.

A.P. gave evidence at the trial and called the following witnesses:

a) her spouse, Dr. P.;

b) E.P.-L.’s daycare provider, D.J.; and

c) her employer, M.C. [ 14 ] Mr. K.L. gave evidence and called the following witnesses:

a) his mother, J.P.;

b) his former girlfriend, J.B.; and

c) DND [omitted for publication], D.S. Evidence of A.P. [ 15 ] Ms. A.P. is a graphic designer by trade and is employed as the head of an agency based in Nanaimo that develops software used

in the real estate sector. She has no other children other than E.P.-L. Ms. A.P. and E.P.-L. live in a basement suite in Colwood although she and her now spouse, Dr. P., have purchased a home together in Seattle where Dr. P. resides. Ms. A.P. has not relocated awaiting the outcome of the trial in this matter. [ 16 ] Ms. A.P. and Mr. K.L. were virtual strangers having dated for three weeks when she became pregnant with E.P.-L. Ms. A.P. remained in Victoria and Mr. K.L. was deployed overseas. Their relationship became acrimonious almost immediately. Ms.

A.P. described a pattern of threatening and aggressive communication from Mr. K.L. that began prior to E.P.-L.’s birth. Some examples are detailed herein. Email about Shared Parenting Before Birth – March 5, 2019 [ 17 ] Initially, Mr. K.L. was uncertain as to whether E.P.-L. was his child. Ms. A.P. left the door open for Mr. K.L. to be as involved or uninvolved as he wished. By email dated March 5, 2019, a month prior to E.P.-L.’s birth, she wrote: I’d love to share with you [K.L.]. Like I’ve said before, if you ever want to know the gender, or see a 3D ultrasound, or know how tests have gone etc.

I’d be happy to tell you. My intention has never been to exclude you. [ 18 ] Mr. K.L. responded in a subtly threatening tone stating: …if it is mine, I would like to be involved 50/50 with the decisions regarding the child and co-parent. Which means having the baby with me 50% of the time from day one. Child Support – July 21, 2019 [ 19 ] In discussing parenting time, Mr. K.L. responds: I was right all along. You wanted a baby and I was the sucker that fell for it, now you have a pay check which is all you wanted… Time and Place of Exchange – December 18, 2019 [ 20 ] Early on Ms. A.P. suggested that she and Mr.

K.L. meet at a coffee shop for exchanges of E.P.-L. She had hoped they could sit down for a few minutes at the start of Mr. K.L.’s parenting time to discuss necessary information and make the transition comfortable for E.P.-L. [ 21 ] In response, Mr. K.L. by email dated December 18, 2019 stated: …Having us both in the same room at the same time is doing more damage to [E.P.-L.] than good. She can feel the absolute hate between us and is not good for her… [ 22 ] Ms. A.P. responded asking that he at least come into the coffee shop for the exchange to which Mr. K.L. refused. Ms.

A.P. responded by stating that if he refused to be civil then the exchange would be cancelled. Mr. K.L. responded with: I can’t tell if you’re playing stupid anymore, or if you actually are stupid… [ 23 ] This message was sent by Mr. K.L. despite the existence of a Conduct Order requiring all communications between the parties to be polite and respectful. Concerns About Breastfeeding – June 27, 2019 and July 29, 2020 [ 24 ] Mr. K.L. believed that Ms. A.P. breastfed E.P.-L. as a way to control his parenting time. Moreover, he saw breastfeeding as a barrier to his development of a bond with E.P.-L.

It was evident at trial that he continued to disagree with Ms. A.P.’s decision to have breastfed E.P.-L. and believed that she could have been switched to formula much sooner thereby allowing him greater parenting time earlier on. [ 25 ] His views on breastfeeding were made quite clear both in testimony as well as by the emails and texts referred to at trial. In one such email dated June 27, 2019, when E.P.-L. was two months old, Mr. K.L. makes his view clear despite Ms. A.P.’s concerns.

He states: As for the nipple confusion and drinking of formula, I think it will be far more harmful to our daughter in the long run to not have a healthy relationship with her father and not have that bonding time as a baby with her father than the slight risk of nipple confusion and drinking of formula would have on her. [ 26 ] In an email exchange of July 29, 2020, when E.P.-L. was just over 14 months old, Mr. K.L. complained that he couldn’t soothe E.P.-L. and blamed it on her dependence on breastfeeding. Ms.

A.P. responded by pointing out that E.P.-L. is successfully soothed both in daycare and in her maternal grandmother’s care without breastfeeding. She suggested strategies such as taking E.P.-L. for a car ride and offered to meet with him to discuss soothing strategies. [ 27 ] Mr. K.L. refused responding by text message ending his response with “It’s all good. Keep the boob hand strong” implying that Ms. A.P. continue breastfeeding as a form of power over his parenting time. Mr. K.L.’s response showed no regard for E.P.-L.’s developmental needs and best interests.

Recording Parenting Exchanges – November 2019 [ 28 ] Mr. K.L. regularly recorded the exchanges of E.P.-L. Mr. K.L. deposed in his affidavit evidence that such recordings were never done without Ms. A.P.’s knowledge. In his direct testimony he acknowledged that the recordings were initially made surreptitiously and

then openly. Mr. K.L. stated on cross-examination that he recorded the exchanges for his protection in the event of a false accusation by Ms. A.P. [ 29 ] During one such exchange, Mr. K.L. came into Ms. A.P.’s residence to pick up then seven month old E.P.-L. She began to cry when she was handed to Mr. K.L. Ms. A.P. suggested she feed E.P.-L. to calm her. Mr. K.L. began recording with his cell phone. He was asked to turn the phone off and he refused. Ms. A.P. called the police who arrived and confirmed Ms. A.P. was justified in asking Mr. K.L. to stop recording her in her home without her consent. Mr.

K.L. subsequently demanded his parenting time be made-up despite his actions having caused the lost parenting time. Email Respecting Removal from Facebook – January 16, 2020 [ 30 ] Ms. A.P. removed Mr. K.L.’s great grandmother’s access on Facebook to her photographs. She followed up by sending her a text message on Facebook Messenger letting her know that she had been removed as Ms. A.P. was trying to keep her photographs more private by restricting those who would have access. She indicated no personal ill will and offered to send her photographs and updates regularly.

She asked for her email address in order to do so. Mr. K.L.’s great grandmother texted back with her email address thanking her. Ms. A.P. immediately responded indicating she would send photographs later that day. [ 31 ] Mr. K.L. subsequently messaged Ms. A.P. with the subject title “Even a new low”. Mr. K.L. described his great grandmother as “crying hysterically” over being removed access to Ms. A.P.’s Facebook photographs. He ended his message with “Even this is a new low for you. You’re an actual piece of shit. Congrats.” Unilateral Decision Making [ 32 ] Ms. A.P. further testified that Mr.

K.L. routinely either ignored her views in decision making or made unilateral decisions contrary to her views. Several examples were highlighted at trial. [ 33 ] On one occasion, when E.P.-L. was nine months of age, the parties had an altercation during one of their transitions. Mr. K.L. apparently made mention that he may be late dropping E.P.-L. off as he had a haircut booked for her. This was the first time that Ms. A.P. had been advised that E.P.-L., who had very little hair, was getting a cut and wanted to know why it would be cut. Mr. K.L. apparently refused to discuss it and matters escalated. [ 34 ] Ms.

A.P. deposed in her Affidavit evidence that Mr. K.L. shoved her during the altercation. The police attended and Ms. A.P.’s mother, who was present, prepared a statement that was attached to Ms. A.P.’s Affidavit. There was insufficient evidence led at trial to enable me to make a finding as to whether a physical assault occurred, however, I was satisfied based on the evidence before me, that a dispute between the parties occurred in the presence of E.P.-L. resulting in the police attending. [ 35 ] At the time, the parties had engaged the services of a Parenting Co-ordinator.

The issue of haircuts had previously arisen. Ms. A.P. wished to keep E.P.-L.’s hair long and Mr. K.L. wanted to have her bangs cut. E.P.-L. suffered from eye infections and Mr. K.L. stated by email that he had three physicians advise him that the length of her bangs was likely a contributor to the eye infections. [ 36 ] At trial Mr. K.L. testified on direct evidence that he had a doctor’s opinion confirming the correlation between the length of E.P.- L.’s bangs and her eye infections.

On cross-examination he admitted that he hadn’t actually ever taken her to see a doctor about the issue. [ 37 ] When E.P.-L. was just over a year old, Ms. A.P. proposed booking a hair appointment for E.P.-L.’s first haircut at a salon specializing in children’s cuts that provided a commemorate keepsake of the experience. She explained the importance to her of E.P.-L.’s first salon haircut and invited him to share this “first” with her. Mr. K.L. emailed indicating that he would not respond. The appointment was not booked. [ 38 ] Several months later, while exercising parenting time, Mr. K.L. informed Ms.

A.P. that he was on his way to get E.P.-L.’s haircut. She immediately responded asking that he wait so she could share in her first haircut. He responded that it was a medical issue due to E.P.-L.’s eyes becoming infected because of her bangs. Mr. K.L. misled Ms. A.P. about the location of the salon and suggested the appointment was spontaneous and only one parent was allowed to attend due to COVID protocols. Ms.

A.P. later ascertained, by calling the original hair salon, that the appointment had been booked a full week before, at the location she had suggested months previously, and that both parents had been welcome to attend. [ 39 ] Ms. A.P. was therefore deprived of attending E.P.-L.’s first haircut despite clearly asking Mr. K.L. that she be included in the experience as it was important to her. Evidence of D.J. [ 40 ] Ms. D.J. provided childcare for E.P.-L. at daycare for approximately two years. She testified that E.P.-L. was a happy, energetic and delightful child. Ms.

D.J. had positive experiences with both parents and felt they both wanted what was best for E.P.-L. Evidence of M.C. [ 41 ] Mr. M.C. is Ms. A.P.’s employer and owner of the business. Ms. A.P. has worked for his company for 15 years. Mr. M.C. testified that most of his staff are based in Canada however their customers are primarily in the United States. He stated that having Ms. A.P. based in the US would give the company a critical advantage by lowering travel costs and having a representative based stateside. Mr. M.C. testified that Ms.

A.P. would have more opportunities to obtain lucrative contracts for the company resulting in greater income potential for her. Evidence of J.P.

[ 42 ] Ms. J.P. is Mr. K.L.’s mother. She has two children that live in Alberta and Mr. K.L. in British Columbia. She and her spouse divide their time between her children spending half of the year in Alberta and the other half in their RV in British Columbia. [ 43 ] Ms. J.P. testified that she has a wonderful relationship with E.P.-L. She described Mr. K.L. as a great father. She testified that she has lived with lung cancer for the past five years and her husband has liver cancer. She expressed concern that if E.P.-L. moved to the Seattle she would never see her again.

She did not provide an explanation for this belief. [ 44 ] Ms. J.P. indicated that she has only been in the same room as Ms. A.P. less than a handful of times and has only reached out once to communicate with her since E.P.-L.’s birth. She felt it was not her place to get involved. She would therefore presumably not reach out to Ms. A.P. directly to make arrangements to see E.P.-L. [ 45 ] Ms. J.P. testified that when she is in town she sees E.P.-L. three or four times per week. She believes that if E.P.-L. were to relocate with Ms.

A.P. to Seattle any form of electronic contact such as FaceTime will not be an adequate substitute to in-person contact and their relationship would therefore be negatively affected. Evidence of J.B. [ 46 ] Ms. J.B. and Mr. K.L. dated for five months in 2020 and remained friends until July 2021. Ms. J.B. has two children of her own and they spent time with Mr. K.L. and E.P.-L. [ 47 ] Ms. J.B. testified that Mr. K.L. was a devoted and conscientious father. She experienced E.P.-L. as secure and loved. She saw a close and secure bond between E.P.-L. and Mr. K.L. [ 48 ] Ms.

J.B. acknowledged that she had never met Ms. A.P. She was unaware of many of the details of their relationship other than from Mr. K.L.’s perspective. For example, she was unaware of the fact that Ms. A.P. moved to Victoria from Nanaimo to encourage the relationship between E.P.-L. and Mr. K.L. Her evidence was therefore of limited assistance. Evidence of D.S. [ 49 ] Commander D.S. is the [omitted for publication] at [omitted for publication]. She is Mr. K.L.’s direct supervisor. [ 50 ] Commander D.S. confirmed that Mr. K.L. is a valued member of the forces in a high profile portfolio.

He has never been on probation and has an exemplary work record. [ 51 ] Commander D.S. recounted receiving a phone call from Mr. K. expressing concern that Mr. K.L. had received paternal leave under false pretenses. Mr. K. identified himself as the father of Ms. A.P. with whom Mr. K.L. shared a child. Commander D.S. confirmed that at no time did Mr. K. purport to speak on Ms. A.P.’s behalf or make a complaint on her behalf. [ 52 ] It was clear from Commander D.S.’s evidence that no negative repercussions to Mr. K.L.’s career or record resulted from Mr. K.’s complaint. Evidence of K.L. [ 53 ] Mr.

K.L. is an [omitted for publication] with the Department of National Defence. He has risen to the rank of [omitted for publication] in [omitted for publication]. He has been in the service for 22 years. [ 54 ] Mr. K.L. gave evidence as to his close bond with E.P.-L. and the efforts he has made during her lifetime to form such bond despite what he viewed as Ms. A.P.’s interference. Mr. K.L. characterized Ms. A.P. as combative and opposed to his involvement with E.P.-L. since her birth, if not before. [ 55 ] He deposed that Ms.

A.P. lied and deceived him on a regular basis forcing him to take protective measures such as recording their interactions. When asked for examples he cited Ms. A.P. obtaining an order for child support in his absence; agreeing to increasing parenting time and then retracting her agreement; reporting a fraudulent parental leave claim to his employer thereby trying to get him fired; and refusing him increased parenting time while he was on parental leave. Application for Child Support Heard in Default [ 56 ] In respect of child support, Mr. K.L. testified that he was unaware of the court process and believed Ms.

A.P. and he would work out child support without the necessity of attending court despite being served with Ms. A.P.’s court application. [ 57 ] Mr. K.L. did not file a reply or attend at the first appearance and an order for support was made by this Court in his absence. Mr. K.L. contended this was an example of Ms. A.P. deceiving him. He acknowledged on cross-examination that Ms. A.P. at no time gave him any indication that she would not proceed with her application for child support and that such application had been properly served upon him. [ 58 ] Mr.

K.L. indicated he was simply unaware of the court process or how child support worked; however, the emails in evidence showed that as early as February 2019, prior to E.P.-L.’s birth, Mr. K.L. raised the issue of child support with Ms. A.P. He did so in a defensive and argumentative manner and appeared to have some knowledge about child support. [ 59 ] In a message sent March 5, 2019, Ms. A.P. writes: Hi. 100% this is not about the money and from the get go I’ve been open to doing what’s best for babes. I’ve never wanted to cut you out [K.L.]. All I want is for us to be civil and cooperative.

We are going to be in each other’s lives for a long time and there is no need for such anger or hostility on either side. This should be an exciting time despite our feelings for each other. I met with my lawyer and family justice months ago and they both filled me in on how the next couple of years will go. After your messages the other night I

actually arranged to meet with them again next week to reconfirm everything… [ 60 ] Mr. K.L. promptly responded stating: Well just telling me that family maintenance is already involved is telling me that it is somewhat about the money and child support. [ 61 ] Ms. A.P. did not mention anything about family maintenance being the Family Maintenance Enforcement Plan who enforce the payment of child support orders and agreements. Her message refers to speaking with counsel and family justice presumably being the Family Justice Access Centre. Given that Mr.

K.L. immediately turned his mind to family maintenance, I find that he already had some knowledge of what child support was about, and how it may be enforced. [ 62 ] I did not believe his evidence that his failure to attend court and have an order made in his absence was based upon anything other than his own inaction. Report about Parental Leave [ 63 ] Mr. K.L. applied for parental leave through his employment. He texted Ms.

A.P. a month after E.P.-L.’s birth, stating it would “take some “imagination” on the paperwork i.e. telling them you live with me so that it’s co-custody in order to qualify” and that he would qualify for parental leave. [ 64 ] At the time of his application for parental leave, Ms. A.P. lived in Nanaimo and Mr. K.L. commuted from Victoria to exercise approximately four hours of parenting time per week. As detailed previously, Ms. A.P.’s stepfather, Mr. K., contacted Mr. K.L.’s employer to report what he believed to be improperly taken parental leave. Mr.

K.L.’s parental leave was investigated and found to be appropriate. There was no impact whatsoever upon his employment. [ 65 ] Mr. K.L. blamed Ms. A.P. despite her insistence that she was not involved in her stepfather’s actions. In retribution, Mr. K.L. threatened to report Ms.

A.P. for tax fraud; contact legal aid to have her qualification investigated; contact Service BC in respect of her childcare subsidies; draft a letter to the Nanaimo Chamber of Commerce respecting her personal integrity; and meet at the RCMP station for all further exchanges of E.P.-L. [ 66 ] At trial he continued to refer to this complaint as an example of Ms. A.P.’s deceptive behaviour in order to get him fired despite there being no evidence whatsoever that Ms. A.P. was involved in the complaint in any way. Restricting Parenting Time [ 67 ] Mr. K.L. referred to Ms.

A.P. restricting his parenting time throughout E.P.-L.’s life and his loss of what he referred to as “firsts” being E.P.-L.’s various first experiences. The evidence however was that Ms. A.P. moved from Nanaimo to Victoria to foster Mr. K.L.’s relationship with E.P.-L. She agreed to various increases in parenting time eventually leading to a shared parenting

schedule in November 2021. I did not find any efforts by Ms. A.P. to limit Mr. K.L.’s time with E.P.-L., and in fact, found quite the opposite. [ 68 ] In respect of “first” experiences, Ms. A.P. attempted to share many of those with Mr. K.L. Some examples included inviting Mr. K.L. to attend her first haircut which he usurped; inviting him to attend the library to register her for her first library card; and waiting for his birthday so he could be the one to feed E.P.-L. her first “real” food.

Disrespectful Communication [ 69 ] When asked on cross-examination about the tone and level of aggression in the text and email communications he had with Ms. A.P., Mr. K.L. was regretful describing them both as “emotional”. When asked to produce a single text or email wherein Ms. A.P. was disrespectful using a similar tone to his, Mr. K.L. was unable to produce any. Evidence of Dr. P. [ 70 ] Dr. P. testified that he and Ms. A.P. met online in early 2020. When they initially met, they were not aware of the fact that they lived in different countries.

They began dating online over COVID, eventually meeting and visiting one another between Victoria and Seattle once travel restrictions were eased. They were married on March 12, 2022. [ 71 ] Dr. P. is a [omitted for publication] employed with the [omitted for publication] specializing in [omitted for publication]. He is an [omitted for publication] at the [omitted for publication]. Dr. P. gave evidence that his area of employment is quite specialized. There are perhaps 100 other doctors specializing in his area in the United States.

This leads to few job opportunities given his degree of specialization. [ 72 ] If he were able to find a similar position, he testified that perhaps Vancouver would be the closest Canadian hospital however, there is no guarantee of such a position ever becoming available. Moreover, if a position did become available, he would need to be licenced and board certified in Canada and that may require additional years of training. Given the accessibility of the Clipper ferry, the time and distance between Victoria and Seattle, versus Victoria and Vancouver, is actually less. [ 73 ] Ms. A.P. and Dr.

P. have purchased a home together in Seattle with the intention that E.P.-L. reside with them primarily. They picked a home with three bedrooms such that E.P.-L. has her own room as opposed to the basement suite that she currently shares with Ms. A.P. in Victoria. Their new home is situated across the road from a park, near a major zoo with easy access to the Clipper ferry terminal which travels between Seattle and Victoria in less than three hours. [ 74 ] Dr. P. testified that he had never met Mr. K.L. except for his attendance in court at the within trial.

He expressed a desire to be a family and stated that Mr. K.L. is “part of that big equation”. Dr. P. and Ms. A.P. hope to have children of their own and he made clear in evidence that he in no way wished to encroach upon Mr. K.L.’s parental role or act as his substitute.

Applicable Statutory Provisions [ 75 ] The following provisions of the Family Law Act are relevant to this application: 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) 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, 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. Best Interests of Child [ 76 ] Section 37(2) of the Act mandates that in determining 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; and

j) any civil or criminal proceeding relevant to the child's safety, security or well-being. [ 77 ] Pursuant to s. 37(3) of the Act , 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. Assessing Family Violence [ 78 ]

Section 38 of the Act directs that for the purposes of s. 37 (2) (

g) and (

h) which concern family violence, a court must consider all of the following:

a) the nature and seriousness of the family violence;

b) how recently the family violence occurred;

c) the frequency of the family violence;

d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member;

e) whether the family violence was directed toward the child;

f) whether the child was exposed to family violence that was not directed toward the child;

g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence;

h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring;

i) any other relevant matter. [ 79 ] Family violence is defined in s. 1 of the Act as: "family violence" includes, with or without an intent to harm a family member, (

a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm, (

b) sexual abuse of a family member, (

c) attempts to physically or sexually abuse a family member, (

d) psychological or emotional abuse of a family member, including (

i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property, (ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy, (iii) stalking or following of the family member, and (iv)intentional damage to property, and (

e) in the case of a child, direct or indirect exposure to family violence. Substantially Equal Parenting Time – Applicable

Section [ 80 ] The essential question on a relocation application is whether the child’s best interest will be served by allowing or refusing the proposed relocation. Who bears the onus of proof is dependent upon the division of parenting time. Where parties have substantially equal parenting time, s. 69(5) applies, and the parent wishing to move must present evidence to show the move is in the child’s best interests.

Where parenting time is not substantially equal, s. 69(4) applies, and the parent opposing the move must present evidence that the move is not in the child’s best interests. [ 81 ] In considering how substantially equal parenting time should be determined, the BC Supreme Court in D.M. v. E.M., 2014 BCSC 2091 concluded that 40% should be considered a threshold figure for the purposes of s. 69(4) noting the same figure is used as a cut-off for equal parenting for child support purposes. D.M. v. E.M. , 2014 BCSC 2091 at para. 38 . [ 82 ] The court in D.T.S. v.

S.P.M., 2022 BCSC 547 applied the decision of Judge Gouge in S.H. v. J.W., 2019 BCPC 308 wherein he determined that the date for the assessment of substantially equal parenting time is the date of delivery of the notice of relocation. Moreover, in assessing substantially equal parenting time for the purpose of a relocation application, one is to consider parenting time which actually occurred “on the ground” during the 12 months preceding delivery of the notice of relocation. [ 83 ] In this case, it is clear that Ms. A.P. delivered notice of her intention to relocate twice.

Initially by her Reply and Counterclaim filed February 22, 2021 and then by email dated October 7, 2021. As set out earlier in my decision, as of the date of the first notice Ms. A.P. had E.P.-L. in her care more than 60% of the time. This changed by consent to an equal parenting

schedule as at November 18, 2021 being after the date of the second notice.

[ 84 ] Considering the parenting time that actually occurred “on the ground” during the 12 months preceding either notice, Mr. K.L. did not have “substantially equal parenting time” of E.P.-L. and s. 69(4) therefore applies. The onus as set out in s. 69(4) is therefore placed on Mr. K.L. to prove that the relocation is not in E.P.-L.’s best interest. Applying Section 69(4) of the Family Law Act [ 85 ] In accordance with s. 69(4) of the Family Law Act , I must be satisfied of the following:

a) the proposed relocation is made in good faith,

b) the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child’s other guardian and other persons who have a significant role in the child’s life, and

c) the relocation must be considered to be in the best interest of the child unless another guardian satisfies the court otherwise. Is the Proposed Relocation Made in Good Faith? [ 86 ] Good faith is a subjective state of mind. The court’s task under s. 69(6) is to consider the evidence and seek to determine the subjective state of mind of the relocating parent. D.T.S. v. S.P.M . , 2022 BCSC 547 at para. 62 . [ 87 ] Section 69(6) of the Act sets out factors for consideration in determining whether the proposed relocation is made in good faith.

The considerations listed in s. 69(6) are not exhaustive but a positive or negative finding on any of them supports an inference on the presence or absence of good faith. L.J.R. v. S.W.R., 2013 BCSC 1344 at paras. 71 to 72 . [ 88 ] Ms. A.P. proposes the relocation to be able to live with her spouse in Seattle. She will have family supports including her spouse, improved economic conditions and enhanced employment opportunities. [ 89 ] Ms. A.P. has remained in British Columbia awaiting the result of the within trial.

Despite having remarried and being separated from her spouse who lives in Seattle she has not taken any steps to move E.P.-L. pending the court’s decision. I find nothing in the conduct of Ms. A.P. to show the absence of good faith. Has Ms. A.P. Proposed “Reasonable and Workable Arrangements”? [ 90 ] Ms. A.P. has proposed E.P.-L. spending one week per month with Mr. K.L. She has agreed to bear the costs of transportation for E.P.-L. to travel from Seattle to Victoria. Additionally, she proposes paying all of the daycare costs that she will have for E.P.-L. in Seattle thereby allowing Mr.

K.L. to have additional financial resources to pay for any childcare he may need for E.P.-L. during the one week per month that she is in his care. [ 91 ] Ms. A.P. and her spouse have purchased a home in Seattle with ease of access to the ferry terminal. There is a direct ferry from Seattle to Victoria. It operates year round and can be easily access by Mr. K.L. on the Victoria side. [ 92 ] I find Ms. A.P. to have proposed reasonable and workable arrangements that would preserve the relationship between E.P.-L. and Mr. K.L.

Is the Relocation in E.P.-L.’s Best Interests? [ 93 ] The Supreme Court of Canada recently considered the best interest of the child test in relation to mobility cases in Barendregt v. Grebliunas, 2022 SCC 22 : [8] Determining the best interests of the child is a heavy responsibility, with profound impacts on children, families and society. In many cases, the answer is difficult -- the court must choose between competing and often compelling visions of how to best advance the needs and interests of the child. The challenge is even greater in mobility cases.

Geographic distance reduces flexibility, disrupts established patterns, and inevitably impacts the relationship between a parent and a child. The forward-looking nature of relocation cases requires judges to craft a disposition at a fixed point in time that is both sensitive to that child's present circumstances and can withstand the test of time and adversity. [9] The law relating to the best interests of the child has long emphasized the need for individualized and discretionary decision making. But children also need predictability and certainty.

To balance these competing interests, the law provides a framework and factors to structure a judge's discretion. This case calls on the Court to examine how some of those considerations apply in mobility cases.

In particular, I clarify that a moving parent's reasons for relocation and the "maximum contact factor" are relevant only to the extent they bear upon the best interests of the child; a parent's testimony about whether they will move regardless of the outcome of the relocation application should not be considered; and family violence is a significant factor impacting the best interests of the child. [ 94 ] Applying the best interests of the child provisions of the Act to this case, the relevant provisions include the following.

The Child’s Health and Emotional Well-being [ 95 ] The evidence of both parents is that E.P.-L. is a happy and carefree child. She is clearly well loved and looked after by all of her family. Relationships between the Child and Significant Persons in her Life [ 96 ] The two most significant people in E.P.-L.’s life are her parents. She has a strong bond with both. Additionally, she is well bonded to her extended family including her maternal and paternal grandparents. She has also developed a loving relationship with Ms. A.P.’s new spouse and his extended family and friends.

History of Childcare [ 97 ] Ms. A.P. was E.P.-L.’s primary caregiver from her birth. She regularly spent time with Mr. K.L. His parenting time gradually increased until approximately November 2021 when the parties began sharing parenting time equally as detailed earlier in my decision. The Child’s Need for Stability [ 98 ] E.P.-L. has her mother and father in Victoria. Both parents have moved since E.P.-L.’s birth with Ms. A.P. moving from Nanaimo to Victoria to be closer to Mr. K.L. She currently lives in a rented basement suite with E.P.-L. Mr. K.L. moved since her birth and recently bought a condominium. Ms.

A.P. has purchased a home with her spouse in Seattle. Both parents have housing security and stability. Ability of Guardians to Exercise Parenting Responsibilities [ 99 ] Both Ms. A.P. and Mr. K.L. have been able to exercise parenting responsibilities. There have been multiple occasions however where Mr. K.L. has either ignored or purposely overridden Ms. A.P.’s concerns in making unilateral decisions respecting E.P.-L. as detailed in my decision.

Impact of Family Violence [ 100 ] The Supreme Court in Barendregt recognized that findings of family violence are a critical consideration in the best interests analysis. This includes any violent or threatening conduct, ranging from physical abuse to psychological and financial abuse. Courts must consider family violence and its impact on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child. [ 101 ] A trial judge’s failure to consider family violence in determining best interests was held at para. 125 in K.W. v.

L.H., 2018 BCCA 204 to be “a serious error in principle” that fundamentally tainted the trial judge’s determination that the proposed relocation was not in the child’s best interest. [ 102 ] Similarly, in D.T.S. v.

S.P.M . 2022 BCSC 547 the trial judge found the father’s “pattern of aggressive behaviour” to be family violence and such history was “a relevant and ongoing consideration” in determining the best interests of the child. [ 103 ] The impact of family violence upon children was considered in Barengredt : [143] The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator's parenting ability is untenable.

Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the Context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S.

Artz et al., "A Comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth" (2014), 5 I.J.C.Y.F.S. 493, at p. 497. [ 104 ] I find Mr. K.L.’s pattern of aggressive conduct towards Ms. A.P. including but not limited to a continual pattern of harassing, aggressive and degrading text and email messages; surreptitious and unwanted video recording of Ms. A.P.; along with conflicts at exchanges with E.P.-L. present requiring police intervention; when considered collectively, constitute family violence.

It is therefore a material and relevant factor in determining the best interests of the child. Reasons for Relocating [ 105 ] The Supreme Court in Barengredt made clear that the reasons for the move often bears upon the best interests of the child. [128] Indeed, isolating the custodial parent's reasons for the move from the broad, individualized inquiry of the child's best interests has frequently proven impractical. There will often be a connection between the expected benefits of the move for the child and the relocating parent's reasons for proposing the move in the first place.

Relocation for financial reasons, for instance, will clearly carry implications for a child's material welfare. Considering the parent's reasons for moving can be relevant, and even necessary, to assess the merits of a relocation application. …. [171] These considerations all have direct or indirect bearing on the best-interests-of-the-child assessment. Relocation that provides a parent with more education, employment opportunities, and economic stability can contribute to a child's wellbeing: Larose v. Larose, 2002 BCCA 366 , 1 B.C.L.R. (4th) 262 , at paras. 6 and 19 ; H.S. v. C.S., 2006 SKCA 45 , 279 Sask.

R. 55 , at para. 26 ; see also E. El Fateh, "A Presumption for the Best?" (2009), 25 Can. J. Fam. L. 73, at pp. 80-83. [ 106 ] Ms. A.P. seeks to relocate to be able to live with her spouse. The relocation will provide her with financial security, enhanced employment opportunities and economic stability. She will have the emotional support of her spouse and his extended network of family and friends whereas she has no such support or economic stability in Victoria. These factors will all contribute to E.P.-L.’s wellbeing and her best interests. Conclusion [ 107 ] I find that Mr.

K.L. has failed to show the relocation is not in E.P.-L.’s best interests as required by s. 69(4)(

b) of the Family Law Act . Even if the onus where on Ms. A.P., I would have come to the same finding, which is that the relocation to Seattle is in E.P.-L.’s best interests. The relocation application of Ms. A.P. is therefore granted. [ 108 ] The parenting

schedule will be changed once Ms. A.P. has relocated such that:

a) E.P.-L. will spend one week per month with Mr. K.L. or such other time as agreed upon by the parties in advance in writing or by court order.

b) Ms. A.P. will be solely responsible for the cost of transportation for E.P.-L. to travel from Seattle and Victoria.

c) Ms. A.P. will be solely responsible for all of her daycare costs while E.P.-L. is in her care and Mr. K.L. will be solely responsible for all of his daycare costs while E.P.-L. is in her care.

d) Parenting time will be reviewed by the parties by May 30 th in the year preceding E.P.-L.’s full-time attendance at school. Ms. A.P. and Mr. K.L. must first attempt to mediate the parenting

schedule and only if mediation fails will they have leave to return to court to seek assistance in respect of the parenting schedule. I will remain seized of this matter. _____________________________ The Honourable Judge K.V. Sacca Provincial Court of British Columbia