T.S. v. J.R.S., 2024 BCPC 2

Citation: T.S. v. J.R.S. 2024 BCPC 2 Date: 20240103 File No: F19654 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: T.S. APPLICANT AND: J.R.S. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Counsel for the Applicant: K. Brar Counsel for the Respondent: R. Chambers Place of Hearing: Port Coquitlam , B.C.

Dates of Hearing: August 30-31, September 1, November 20 and December 8, 2023 Date of Judgment: January 3, 2024 Introduction [ 1 ] T.S. is the mother and J.R.S. is the father of triplets, currently aged six years. [ 2 ] On February 1, 2023, T.S. gave notice to J.R.S. of her intention to move to the Okanagan with the children. [ 3 ] On February 6, 2023, J.R.S. filed an Application for Order Prohibiting the Relocation of a Child. This is my decision regarding that application. Witnesses and Caselaw [ 4 ] I heard from the following witnesses:

a) J.R.S;

b) M.S.;

c) M.A.;

d) R.S.M.;

e) B.S.;

f) A.Y.;

g) M.J.; and

h) T.S. [ 5 ] Each party referred me to several cases that I have listed in an Appendix attached to this decision. I asked counsel to provide me with their caselaw before I heard submissions so that I could review them. Some of the cases referred to me dealt with the Divorce Act rather than the Family Law Act, or they were not mentioned in submissions. As a matter of general practice, because a Court’s time is constrained by many other matters, a judge should not have to spend time reviewing materials that serve no purpose. Background [ 6 ] I will set out a

summary of the evidence. I will not refer to matters that were irrelevant to the relocation application. [ 7 ] In 2010, the parties began to live together in Okanagan Falls, B.C. [ 8 ] In 2011, T.S. commenced studies in the Interior Design program at the Centre for Arts and Technology, located in Kelowna, B.C. [ 9 ] In or about 2012, J.R.S. commenced work as an engineer for his current employer at their Penticton office. [ 10 ] The parties married in June 2013. [ 11 ] T.S. completed her studies in the summer of 2013 and received a diploma in Interior Design.

T.S. then obtained a job selling furniture in Kelowna. [ 12 ] The parties moved to New Westminster in 2014. The parties disagree on the reason for the move. J.R.S. said they moved at T.S.’s request so that she could improve her career opportunities. T.S. said the move was to allow J.R.S. to advance his career working for his employer at their Burnaby office. [ 13 ] In 2015, T.S. found work as a labourer but quit in 2016 when she became pregnant. [ 14 ] The children were born in 2017.

The parties agreed that T.S. would remain at home to care for the children. [ 15 ] In April 2017, the parties purchased a home in Maple Ridge. [ 16 ] For approximately eight months after the children were born, family and friends came to help the parties. After that, T.S. said when she needed help with the children, she was “sent away.” I understand that T.S. meant she went to the home of her mother, A.Y., in [omitted for publication], B.C. J.R.S. denied sending T.S. away.

The parties do agree that there were times when T.S. and the children went to stay with A.Y. [ 17 ] T.S. alleged that on June 10, 2022, J.R.S. assaulted her. J.R.S. disputed the allegation. I will discuss the allegations later in my Reasons. [ 18 ] On June 11, 2022, T.S. and the children went to stay with T.S.’s mother. They remained with A.Y. until August 2022.

[ 19 ] On August 19, 2022, T.S. filed an Application About a Protection Order against J.R.S. Judge Smith heard the application, which was made without notice to J.R.S. Judge Smith granted an indefinite protection order restricting J.R.S.’s contact with T.S. and the children, and requiring J.R.S. to leave the Maple Ridge home. [ 20 ] At the same time, on his own motion, Judge Smith made an interim, without prejudice order for payment of child and spousal support. T.S. had not applied for support at the time.

Indeed, T.S. has never filed a formal application for support. [ 21 ] J.R.S. put into evidence a letter from the Ministry of Children and Family Development confirming that the Ministry closed its file on September 16, 2022. I accept this letter as confirmation that the Ministry did not find any basis to conclude that the children required protection. [ 22 ] On September 14, 2022, J.R.S. applied to set aside only the protection order and not the support order. [ 23 ] Judge McQuillan heard the application to set aside the protection order on December 14, 2022.

On December 15, 2022, Judge McQuillan gave his decision and ordered that the protection order be set aside. In its place, Judge McQuillan made an order governing the conduct of the parties. I have the benefit of a transcript of Judge McQuillan’s decision. [ 24 ] Although T.S. was present at court on December 14, 2022, she chose not to be present on December 15, 2022. T.S. said she had already planned to travel to the Okanagan. In cross-examination, T.S. said she felt it best at the time to go to her mother’s home.

I think it is likely that T.S. chose not to be in court to hear Judge McQuillan’s decision and to be physically away from the Lower Mainland with the children. [ 25 ] Following Judge McQuillan’s decision, J.R.S. reached out to T.S. to seek parenting time. There were challenges in arranging this, since T.S. and the children were now in the Okanagan. The parties arrived at a written agreement made on December 23, 2022, that allowed J.R.S. parenting time from December 25 to 29, 2022.

This agreement was never filed with the Court, although counsel signed it for both parties. [ 26 ] J.R.S. exercised parenting time as set out in the agreement, taking the children to Armstrong, B.C., where one of his brothers lived. [ 27 ] On February 1, 2023, T.S. sent J.R.S. written notice of her intention to move with the children to the Okanagan after the sale of the family home in Maple Ridge. [ 28 ] According to the notice, T.S. planned to purchase a home in the Okanagan area with her uncle, M.J., and her mother. M.J. testified that he did offer to purchase a home in Lumby but the deal fell through.

He is now looking to buy a home in the North Okanagan, where A.Y. could live. If I permit the children to relocate, T.S. and the children will also live in the home. I will review the reasons for the move later in my decision. [ 29 ] T.S. testified that although she received about $130,000 from the proceeds from the sale of the family home, there is only about $9,000 left after paying various debts and legal fees. As such, T.S. is no longer in a position to purchase an interest in any property. A.Y. also said she would not join in purchasing a new home.

M.J. would be the only purchaser of the home. [ 30 ] On February 6, 2023, J.R.S. filed an Application for Order Prohibiting the Relocation of a Child. [ 31 ] On February 23, 2023, Judge Campbell made an order under Family Law Act s. 64(1) that T.S. was not to change the residence of the children from the Lower Mainland without first obtaining written consent from J.R.S. or a court order. [ 32 ] To date, there has been no formal court order for parenting time. J.R.S. maintains that his wish is for equal parenting time to which T.S. objects. [ 33 ] In April 2023, the parties sold their Maple Ridge home.

T.S. moved to Mission, B.C. J.R.S. had previously moved to North Vancouver. [ 34 ] In August 2023, T.S. had a dispute with her landlord. As a result, on September 1, 2023, T.S. and the children moved from Mission to her current home in Port Coquitlam. During this month, J.R.S. and T.S. had virtually equal parenting time. [ 35 ] On September 1, 2023, the parties consented to an order to allow the children to attend a Port Coquitlam school.

Previously, they were attending a school in Maple Ridge. [ 36 ] On September 15, 2023, J.R.S. filed an Application About a Family Law Matter to seek a parenting arrangement order and to change the August 19, 2022 support order. On November 14, 2023, T.S. filed a Reply . A Family Management Conference is set for January 30, 2024. [ 37 ] In October 2023, J.R.S. moved to Port Coquitlam. He currently resides a few hundred metres from T.S.’s home. The Family Law Act [ 38 ] Both parties are the biological parents of the children and lived together with the children.

As such, they are presumed to be guardians of the children: Family Law Act s. 39. [ 39 ]

Section 65 of the Family Law Act defines a “relocation” as “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.” [ 40 ]

Section 69 of the Family Law Act governs an application about relocation, and states:

(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. [ 41 ] If the relocating parent is not acting in good faith, the proposed relocation may still be in the best interests of the children such that the Court could still permit the move. In the decision A.J.D. v. E.A.E. , 2013 BCSC 2160 , the Court stated: [37] I also agree that a finding that the relocating parent has not acted in good faith does not necessarily mean the proposed relocation is not in the best interests of the child.

In all cases the court must determine if the proposed relocation is in the child's best interests. [ 42 ] In the decision C.M.B. v. B.D.G. , 2014 BCSC 780 , Justice Fleming stated: [78] To summarize, I have concluded that the correct approach under s. 69(4) and (5) is for the court to consider whether the proposed relocation is made in good faith and whether reasonable and workable arrangements have been proposed. If one or both of these criteria are not met, the court must still go on to consider whether the proposed relocation is in the child’s best interests.

Satisfaction of good faith and reasonable workable arrangements is necessary in order for a relocating guardian to benefit from the presumption under s. 69(4) (

b) that the move is in the best interests of the child. [ 43 ] In determining the best interests of the child, I must consider all the needs and circumstances of the child, including those matters listed at s. 37(2) of the Family Law Act as follows: (

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 the person's 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 the person's 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. Is this a relocation? [ 44 ] The relocation application came before me for a pre-trial conference on August 2, 2023. At the time, the parties did not inform me that on December 23, 2022, they signed an agreement dealing with parenting arrangements. The relocation provisions of the Family Law Act, found at

Part 4, Division 6, apply where there is an existing written agreement or order respecting parenting arrangements. If there is no such written agreement or order, then the change in the location of the children’s residence falls within the definition of a “priority parenting matter” found at Rule 2 of the Provincial Court Family Rules and would be governed by s. 46 of the Family Law Act . [ 45 ] As I was not aware of any written agreement respecting parenting arrangements, I understood that the move of the children was not a “relocation” within the meaning of the Family Law Act .

As such, I made an order pursuant to Rule 157 of the Provincial Court Family Rules to treat J.R.S.’s Application for Order Prohibiting the Relocation of a Child as an Application About a Priority Parenting Matter. [ 46 ] It was not until the commencement of this trial on August 30, 2023, that I learned of the written agreement dealing with parenting arrangements. [ 47 ] The parties agree that the relocation provisions of the Act should apply to this case. I recognize that the parties cannot agree to grant me jurisdiction that I lack: see for instance Ward v. Ward , 2002 BCSC 252 at para. 10 .

However, I am also not aware of any caselaw preventing the application of relocation provisions of the Family Law Act when a parenting arrangement agreement has expired. I leave this issue to be decided in another proceeding and I will proceed under

Part 4, Division 6 of the Family Law Act . Do the guardians have substantially equal parenting time? ( FLA s. 69(4)) [ 48 ] J.R.S. submitted that before separation, the parties had equal parenting time such that s. 69(5) applies. [ 49 ]

Section 42 of the Family Law Act refers to “parenting time” as the time allocated under an agreement or order. By its very nature, parenting time is time spent with the children after separation. [ 50 ] For the majority of the time since separation, the parenting time arrangement has not been substantially equal. J.R.S. testified that his wish has been for equal parenting time throughout but that is not enough. The actual arrangement in place does not provide for substantially equal parenting time and as such, I find that s. 69(4) governs. Accordingly, if both the factors listed at s. 69(4)(

a) exist, I must presume that the relocation is in the best interests of the children. The onus then shifts to J.R.S. to rebut the presumption. If one or both of the factors listed at s. 69(4)(

a) does not exist, the onus is on T.S. to show that the relocation is in the best interests of the children. [ 51 ] I stress that the focus is on the best interests of the children and not either guardian. Was the proposal to relocate made in good faith? ( FLA s. 69(4)(a)(i)) [ 52 ] To determine if T.S. made her proposal to move in good faith, I must consider all relevant factors including those listed at s. 69(6). What are the reasons for the proposed relocation? ( FLA s. 69(6)(a)) [ 53 ] I will set out T.S.’s reasons for the relocation.

Stable Housing [ 54 ] Since the date of separation, T.S. and the children have had unstable housing. They moved from the family home in Maple Ridge to rental accommodations in Mission, and then to Port Coquitlam. T.S. expressed concerns that she cannot afford the rent of her Port Coquitlam home and may have to move again. [ 55 ] If T.S. relocates, she will first move to [omitted for publication], B.C. to live with her mother, A.Y., and her uncle, M.J. M.J. has employment in Kelowna and he plans to purchase a home in the North Okanagan, possibly in Vernon, Enderby or Lumby.

M.J. is waiting to hear if T.S. will relocate before he decides on the size of the home to purchase. If I allow relocation, T.S. and the children would reside with M.J. and A.Y. M.J. has no children and he plans to bequeath the home to T.S. upon his passing. [ 56 ] There is still much uncertainty about where the children will live and what the living arrangements will be. Education [ 57 ] In 2011, T.S. started a diploma program in Interior Design at the Centre for Arts and Technology in Kelowna, B.C.

This program is normally for three years and T.S. finished it in 2013 after two years. [ 58 ] T.S. has not been employed in the interior design field and she believes she must upgrade her education to be employable. T.S. wishes to attend an in-person class at the Centre for Arts and Technology to upgrade her skills using a computer program called

AutoCAD. [ 59 ] T.S. said she suffers from Attention Deficit Disorder and it takes her longer to learn and take tests. She is a visual learner and has difficulty with online courses.

As an example, T.S. said it took her much longer to complete the online Parenting After Separation course required by the Court. [ 60 ] A.Y. confirmed that T.S. has had a learning disability since she was a child. [ 61 ] T.S. did not provide any medical evidence to confirm a learning disability. [ 62 ] Any reported difficulty in completing the interior design course is tempered by the fact T.S. completed the three-year program in two years.

I must take into account the compressed course load when considering how difficult it was for T.S. to complete the program. [ 63 ] T.S. said the Centre for Arts and Technology offers an in-person course for $585. T.S. contacted the Visual College of Art and Design (VCAD) in Vancouver and she was told VCAD does not offer single courses to someone who had not previously graduated with them. A full course load would cost $45,940, which T.S. cannot afford. [ 64 ] T.S. did not provide any cost estimates from any other schools for a single AutoCAD course, such as from a local college or technical school.

T.S. has tendered the Centre for Arts and Technology as the only possible option. [ 65 ] J.R.S. suggested that T.S. could take online classes to upgrade her education. Given the evidence that T.S. has difficulty completing online studies, I find this is not a reasonable option. Childcare [ 66 ] If T.S. can relocate and live with her mother and uncle, she said they could provide childcare while she attends school. The childcare would also allow T.S. to search for and obtain employment. [ 67 ] A.Y. has certainly cared for the children before. She does not work full-time and is available to assist T.S.

Because A.Y. lives in [omitted for publication], her availability to help T.S. while she lives in the Lower Mainland is limited. [ 68 ] M.J. works full-time in Kelowna and he has never cared for the children before. I think he is unlikely able to provide much childcare help, whether in the Lower Mainland or the Okanagan. [ 69 ] T.S. said she is unable to find affordable childcare in Port Coquitlam. [ 70 ] T.S. lacks family support in the Lower Mainland.

She has a friend living across the street who has on occasion helped T.S. with childcare, but that friend also works, has her own family and home schools one child. T.S. said she is unable to rely upon her friend for consistent childcare. [ 71 ] J.R.S. said he could provide some childcare but T.S. will not consider this option. J.R.S. does work full-time although his employer testified that they do have some flexibility at work.

J.R.S.’s ability to offer childcare is still limited at best. [ 72 ] T.S. said she offered J.R.S. additional time with the children over the Thanksgiving weekend in 2023, which he turned down. T.S. cites this as a reason she does not consider J.R.S. to be a reliable childcare option. However, J.R.S. turned the offer down, not because he did not want to see the children, but because of the short notice. [ 73 ] T.S. said she needed J.R.S.’s help caring for the children in August 2023, when she had to move from the Mission home, and that J.R.S. was reluctant to do so.

Nevertheless, he did have the children for at least half of the month. [ 74 ] T.S. has never asked J.R.S. about providing additional care for the children so that she could look for employment. It appears to me that T.S. assumed that J.R.S. would refuse because of his employment, and has not pursued this option. [ 75 ] J.R.S.’s mother B.S. is available to provide childcare. This is a limited option though since B.S. lives on Vancouver Island.

Employment [ 76 ] T.S. said once she has upgraded her skills, and with the added support from her mother and uncle, she can seek part-time employment. [ 77 ] T.S. has not worked since the separation. She had an opportunity at a bakery job in the Okanagan if she had relocated sooner but that job offer fell through. Aside from this, T.S. has not attempted to seek employment. T.S. said it would be unfair to an employer if she had to move again. [ 78 ] T.S. has not attempted to seek employment in the Lower Mainland even though the children are now in school.

At a minimum, she could seek employment during school hours. It might be that such a job does not exist, but T.S. has not made an effort to discover this. Is the proposed relocation likely to enhance the general quality of life of the children and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities? ( FLA s. 69(6)(b)) [ 79 ] Aside from the matters set out above, I have considered a number of other factors. Cost of Living

[80] I am prepared to take judicial notice that the cost of living in the Lower Mainland is greater than the cost of living in theOkanagan. I cannot ignore the fact that rental costs in Vancouver are among the highest in Canada. Although those costs are less in PortCoquitlam given its distance from Vancouver, they remain high. [81] Given that a home in the Okanagan has not yet been purchased, it would also be speculation that T.S.’s living expenses would bereduced. Income [82] At trial, T.S. was unable to confirm her income.

Her sources of income include support, income assistance and the governmentChild Care Benefit. [83] J.R.S. was ordered to pay child support of $2,151 a month and spousal support of $879 a month. However, J.R.S. had also beenpaying certain expenses that he deducted from the amount of support payable. Neither party provided me with any record of the amountof support arrears although T.S. thought it was about $19,000.

I understood that after the BC Family Maintenance Agency becameinvolved, J.R.S. only recently began to pay the full court-ordered support, which totals $3,030 a month. [84] T.S. said she was not aware of the amount she receives from the Child Care Benefit or income assistance. [85] In a review of the court file, I see T.S.’s Financial Statement filed September 28, 2022. The Financial Statement refers to incomeassistance benefits of $1,516.34 a month, or $18,196.08 per year.

The Financial Statement does not refer to the Child Care Benefit, childsupport or spousal support. [86] Because T.S. has not provided me with any current income information, I am unable to assess her financial ability. Her level ofincome would not change though even if she relocated. T.S.’s income would presumably increase if she obtained employment, which isonly speculation at this point. Stability [87] Since the separation, T.S. and the children have moved twice.

If the relocation were permitted, T.S. and the children would stillhave to relocate twice, once to [omitted for publication] and then finally to the new home once purchased. At least in the short run, thisstill presents a period of instability for the children. Benefit to T.S. [88] Considering the close ties T.S. has with her mother and uncle, I find that a relocation would benefit T.S.’s emotional well-being. [89] T.S. referred me to the decision Kennedy v. Kennedy, at para. 31, where the Court cited an unreported 1997BCSC decision called Creighton v.

Creighton for the proposition that the “welfare of the mother” may be a factor in determining the bestinterests of the child. I am mindful that in Creighton v. Creighton, the mother of two young girls wished to move from White Rock to theUnited States to be with her new husband, and the Court considered the impact on the children if the mother was forced to live apartfrom her husband. It appears to me that such a consideration slips into the “double bind” that courts must avoid. The “double bind” isreferred to in such cases as Stav v. Stav, 2012 BCCA 154 at para. 62, or S.S.L. v.

J.W.W., 2010 BCCA 55 at para. 28, where the Courtstated: [28] This approach to the evidence of both parents avoids the problem of the “double bind” described recently in Bourgeois v.Plante, 2009 PEICA 12 at para. 32: ... Various courts have cautioned that it is problematic to rely on representations made by the custodial parent that he or she will notmove without the children should an application to relocate be denied.

This inquiry is commonly called the “classic double bind.” If aparent responds by stating they are not willing to remain behind with the children, this raises the prospect of the parent looking after theirown interests and not having the interests of the children paramount. Then, on the other side of the equation, if a parent advises the courtthat they are willing to forego a move if unsuccessful, this suggests that such a move is not necessary for the well being of the parent orthe children.

If a trial judge mistakenly relies on a parent's willingness to stay behind “for the sake of the children”, the status quobecomes an attractive option for a judge to favour because it avoids the difficult decision the application presents. See: Spencer v.Spencer, supra. [90] Section 69(6)(

b) permits me to consider whether the proposed relocation will enhance the general quality of life for T.S., but Imust be cautious in doing so because of the need to avoid the problem of the “double bind” and to maintain the focus on the children. Place of Relocation [91] T.S.’s notice of her intent to relocate dated February 1, 2023, referred to a move to the Okanagan. T.S. filed an Amended WrittenResponse to Application on June 23, 2023, to respond to J.R.S.’s application to prohibit the relocation.

In the Written Response, T.S. saidshe intended to relocate to “Okanagan Falls or surrounding areas” or “the Okanagan or surrounding areas.” At trial, I heard evidence thatthe intention was to relocate to [omitted for publication], and then likely somewhere in the north Okanagan. [92] There remains much uncertainty about where the children will relocate. Conclusion Regarding FLA s. 69(6)(b) [93] Given the various factors I have discussed, including the uncertainty about where the children will be living, I cannot find thatthe relocation would likely enhance the general quality of life for the children.

Has notice of relocation was given under

section 66? (FLA s. 69(6)(c))

[ 94 ] On February 1, 2023, T.S. gave written notice to J.R.S. of her intention to move to the Okanagan with the children. Are there a ny restrictions on relocation contained in a written agreement or an order? ( FLA s. 69(6)(d)) [ 95 ] After J.R.S. applied to prohibit relocation, Judge Campbell made an order on February 23, 2023, that T.S. was not to change the residence of the children from the Lower Mainland without first obtaining written consent from J.R.S. or a court order. This order was made to maintain the status quo until a decision was made on J.R.S.’s application.

Are there any other relevant factors? [ 96 ] The parties have not referred me to any other relevant factors. Conclusion - Was the proposal to relocate made in good faith? [ 97 ] Having considered the above, I conclude that T.S. did not make her proposal to move in good faith. I make this finding based on the following:

a) Moving to [omitted for publication] will not provide stable housing because T.S. and the children will be required to move again after M.J. purchases a home. It is only then that the opportunity for stable housing presents itself.

b) The proposal to return for schooling at the Centre for Arts and Technology in Kelowna is not convincing since T.S. has not presented any evidence that there are no in-person AutoCad courses available in the Lower Mainland.

c) A.Y. is a secure option for childcare. However, T.S. has not made a serious attempt at using J.R.S. for childcare. She cites the one failed attempt at arranging extra parenting time at Thanksgiving as the basis for her belief, but this was after giving short notice to J.R.S.

d) T.S. has not attempted to seek employment in the Lower Mainland and she is not in a position to declare that there are no job opportunities here.

e) I am unable to find that the relocation would likely enhance the general quality of life of the children, especially given the uncertainty about where the children would relocate. [ 98 ] In concluding that T.S. did not act in good faith, I am using the language found in the Family Law Act . I do not mean to imply that T.S. is seeking to relocate out of any malice or ill intent. However, I am of the view that T.S. has not made reasonable efforts to remain in the Lower Mainland and to prioritize the children’s relationship with J.R.S.

Has T.S. proposed reasonable and workable arrangements to preserve the relationship the children have with J.R.S. and with other persons who have a significant role in the children's lives? ( FLA s. 69(4)(a)(ii)) [ 99 ] At present, J.R.S. has parenting time on alternating weekends and such other times as agreed to. [ 100 ] T.S. proposed that if she relocates, J.R.S. would have parenting time as follows: (

a) Every second weekend, from after school on Friday to Monday morning before school. (

b) If school is not in session on a Monday, J.R.S.’s parenting time would end on Tuesday before school. (

c) If school is not in session on a Friday, J.R.S.’s parenting time would start Thursday after school. (

d) All of the two-week spring break. (

e) Three of the four weeks each July and August. (

f) The first week of the school winter break starting from the last day of school before the school’s winter break. (

g) Hallowe’en night. (

h) Such additional parenting time as agreed to by the parties. [ 101 ] T.S. proposed that the parties exchange the children at some halfway point between each parent’s home. [ 102 ] T.S.’s proposal that J.R.S. have parenting time on Hallowe’en night appears unrealistic given that J.R.S. would have to travel from the Lower Mainland. [ 103 ] The travel time involved in picking up the children can hardly be considered quality parenting time, and I must consider this. [ 104 ] An arrangement to end J.R.S.’s parenting before the commencement of a school day may not be reasonable, since it would require J.R.S. to drive the children to the exchange point in the early hours of the day or force J.R.S. to find overnight accommodations to avoid an early morning drive. [ 105 ] On a relocation application, the task for me is to assess whether T.S. has proposed reasonable and workable arrangements to preserve the relationship between the children and J.R.S., as well as with other persons who are entitled to have contact with the child, or who play a significant role in the children’s lives.

At this time, there are no persons entitled to contact with the children. J.R.S.’s mother has played a role in the children’s lives but I do not consider that role as significant given her limited time with the children.

[ 106 ] I am also mindful of J.R.S.’s stated intention to seek equal parenting time. J.R.S. referred to this intention in his affidavit filed September 14, 2022, at para. 71. T.S. suggested that J.R.S.’s desire for equal parenting time only arose after she testified at this trial, but that was clearly not the case. [ 107 ] T.S.’s proposal does offer additional time to J.R.S., albeit not the equal time he seeks. Given the promise of additional parenting time, I find that the proposal does present a reasonable and workable arrangement to preserve the relationship between the children and J.R.S.

This is not to say that the proposal is without issues, which I have noted. Furthermore, my conclusion only relates to the reasonableness of the proposal and is not a finding that the proposed arrangement is in the best interests of the children. Is there a presumption that the relocation is in the best interests of the children? ( FLA s. 69(4)(b)) [ 108 ] Because I found that T.S. has not made the proposed move in good faith, there is no presumption that the relocation is in the best interests of the children. The burden then is on T.S. to show that the relocation is in the best interests of the children.

Best interests of the children [ 109 ] To determine the best interests of the children, I must consider all their needs and circumstances, including those factors listed at s. 37(2) of the Family Law Act . I will review each of those factors. The children's health and emotional well-being ( FLA s. 37(2)(a)) [ 110 ] I heard relatively little evidence about the children’s health and emotional well-being, as well as the benefits and disadvantages of their remaining in the Lower Mainland or moving to the Okanagan.

Most of the evidence focused on T.S. [ 111 ] I did hear that the three children had an excessive number of absences from school. This occurred when the children were attending school in Maple Ridge and residing in Mission. T.S. said if she were required to take one child home from school due to illness, she would take all three children home rather than return to the school later in the day to pick up the remaining children. This did make practical sense although it affected the children’s education. The issue of school absences is no longer a concern as the children are now attending a school close to home.

The children’s views, unless it would be inappropriate to consider them ( FLA s. 37(2)(b)) [ 112 ] The children are six years old and it would not be appropriate to consider their views. The nature and strength of the relationships between the children and significant persons in the children’s lives ( FLA s. 37(2)(c)) [ 113 ] I am satisfied that both parents have a strong relationship with the children. [ 114 ] T.S. downplayed J.R.S.’s role in raising the children. There is some basis for this because the parties agreed that T.S. would remain at home to raise the children while J.R.S. worked.

T.S. was the primary caregiver during the marriage and remains so now. Despite this, I find that J.R.S. does love the children and wishes to have an equal role in their lives. The fact that J.R.S. moved to Port Coquitlam to be close to the children demonstrates this commitment. [ 115 ] I also acknowledge that both grandmothers have a relationship with the children, although B.S. does not have as much contact with the children as A.Y.

The history of the children's care ( FLA s. 37(2)(d)) [ 116 ] During the marriage, J.R.S. provided care for the children on weekday evenings and weekends, but overall T.S. was the primary caregiver. T.S. remained the primary caregiver following the separation. The children’s need for stability, given their age and stage of development ( FLA s. 37(2)(e)) [ 117 ] I received little or no evidence about this consideration. [ 118 ] The children are six years old.

They are old enough to be adaptable. [ 119 ] I was not told that the children were involved in any activities that would be affected by a relocation. [ 120 ] The children have changed homes twice now since the parties separated. If they relocate, they will have two further changes in their home within a short time.

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 their responsibilities ( FLA s. 37(2)(f)) [ 121 ] I did not hear any evidence to suggest that either party was not capable of exercising parental responsibilities. [ 122 ] T.S. suggested that J.R.S. put the children in jeopardy when he taught them to swim.

I am not satisfied this was the case as he supervised the children during the lessons. [ 123 ] J.R.S. suggested that T.S.’s use of noise-cancelling headphones caused her to ignore the children. T.S. denies this. There was no evidence that the children were ever at risk though. [ 124 ] Although J.R.S. discussed T.S.’s use of alcohol and cannabis, he also never believed that the children were at risk from this.

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 ( FLA s. 37(2)(g)) [ 125 ] On December 15, 2022, Judge McQuillan said that the protection order had run its course. More importantly, he preceded that comment by saying there was likely no basis for the order in the first place. The protection order was then set aside. [ 126 ] As Judge McQuillan found that J.R.S. did not commit family violence, the impact of family violence is not a relevant consideration.

Whe ther the actions of a person responsible for family violence indicate that the person may be impaired in the person's ability to care for the child and meet the child's needs ( FLA s. 37(2)(h)) [ 127 ] As stated, there has not been any family violence.

T he 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 ( FLA s. 37(2)(i)) [ 128 ] This consideration is more relevant when deciding on parental responsibilities rather than relocation. [ 129 ] The parties were able to agree on parenting time schedules in December 2022 and August 2023. In September 2023, they agreed on the children’s school. When required, the parties can cooperate.

Any civil or criminal proceeding relevant to the child's safety, security or well-being ( FLA s. 37(2)(j)) [ 130 ] There are no such proceedings. Any Other Relevant Factors [ 131 ] The other relevant factors include T.S.’s hope for stable housing, employment and increased family support, all of which I discussed earlier. Conclusion [ 132 ] In any relocation application, a balancing of interests is required. J.R.S. seeks equal parenting time, which would be impossible if I allowed the relocation. T.S. seeks greater stability, education, employment and childcare.

The onus is on T.S. to satisfy me on the balance of probabilities that a relocation to the Okanagan would be in the best interests of the children. [ 133 ] Taking into account the best interests of the children, I have concluded that I must prohibit the relocation. My reasons include the following:

a) The relocation will still require the children to move twice, once to [omitted for publication] and once more from [omitted for publication]. This does not provide stability for the children.

b) The need to attend in-person classes in Kelowna is not convincing since there has been no attempt to locate an in-person class in the Lower Mainland.

c) The promise of employment in the Okanagan is not convincing because there have been no attempts to explore employment opportunities in the Lower Mainland.

d) T.S. has not sought to utilize J.R.S. for ongoing childcare.

e) There is no certainty about where the children would live after moving from [omitted for publication]. As such, I cannot assess whether such a move would be in the best interests of the children. [ 134 ] Ultimately, the burden is on T.S. to prove that it is in the best interests of the children to relocate. She has failed to do so. Accordingly, I order as follows: Pursuant to s. 69(2) of the Family Law Act , T.S. is prohibited from relocating the children from the Lower Mainland of British Columbia. [ 135 ] I decline to make any parenting time orders.

Section 70 of the Family Law Act permits me to change an existing parenting time order if I make an order allowing relocation. Since I have not made an order allowing for relocation, I lack the authority to make a parenting time order. Parenting time is an issue that can be dealt with in the Application About a Family Law Matter proceedings. A Last Word on Jurisdiction [ 136 ] Although this case proceeded under the relocation provisions of the Family Law Act , I am also of the view that there should be no change in the children’s residence pursuant to s. 46 of the Family Law Act . This

section deals with an application to change a child’s residence if there is no written agreement or order respecting parenting arrangements. The considerations under s. 46 involve the best interests of the children. As I set out earlier, I am not satisfied it is in the best interests of the children to change their place of residence. Preparation of Court Order [ 137 ] I direct Ms. Chambers to draft the order for Ms. Brar’s approval as to form. I remind counsel of the time requirements for the

preparation of the court order as set out at Rule 168 of the Provincial Court Family Rules. _____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia Appendix – Caselaw J.R.S.’s Caselaw 1. R.P. v. G.U., 2021 BCSC 1636 2. R.P. v. G.U., 2022 BCCA 255 T.S.’s Caselaw 1. One v. One, 2000 BCSC 1584 2. A.J.D. v. E.A.E., 2013 BCSC 2160 3. Gordon v. Goertz, (SCC), [1996] 2 SCR 27 4. Pepin v. McCormack, 2014 BCSC 2230 5. McIntosh v. Kaulbach, 2014 BCCA 299 6. Kennedy v. Kennedy, 7. Doro v. Doro, 8. Duggan v. White, 2019 BCCA 200