S.J.O. v. A.R.J.P., 2013 BCSC 425

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: S.J.O. v. A.R.J.P., 2013 BCSC 425 Date: 20130313 Docket: [redacted] Registry: [redacted] Between: S.J.O. Claimant And A.R.J.P. Respondent Corrected Judgment: The judgment was edited for publication purposes on March 22, 2013 Before: The Honourable Madam Justice Loryl Russell Reasons for Judgment Counsel for Claimant: S. Parkin J.W. Horn, Q.C. Counsel for Respondent: P.W. Avis Place and Dates of Trial: [redacted], B.C. January 15-18, 2013 February 12, 2013 Place and Date of Judgment: [redacted], B.C.

March 13, 2013 Introduction [ 1 ] This application concerns issues of custody, access and mobility. [ 2 ] The applicant A.R.J.P. and the respondent S.J.O. were married on October 31, 2004. An order for their divorce was entered on February 12, 2013 that will take effect on March 15, 2013. [ 3 ] S.J.O. and A.R.J.P. have a daughter together. “L.” was born in 2006 and she is now six and a half years old. She is the subject of this proceeding. L.’s older sibling A. will soon be 15 years old. A. is S.J.O.’s child by her first marriage. She has sole custody and guardianship of A.

A.R.J.P. raises no issues with respect to A. [ 4 ] Under a separation agreement between the parties, dated May 20, 2009, the parties agreed they would have joint custody and guardianship of L., with S.J.O. having primary residence and day-to-day care of L. Until January 2013, L. lived in [redacted], British Columbia with her mother and spent regular time with her father. [ 5 ] On August 31, 2012, S.J.O. was dismissed from her position she held at a law firm in [redacted]. She secured new employment in [redacted] with the [redacted] in November and soon after informed A.R.J.P. that she intended to relocate with L.

On November 19, 2012, A.R.J.P.’s counsel advised S.J.O. that A.R.J.P. would not consent to her relocation. This consent is at issue. [ 6 ] A.R.J.P. filed an application on November 28, 2012 for the claimant to be restrained from changing the residential address of L. to a location outside the boundaries of [redacted]. He seeks an order for the parties to share joint custody and joint guardianship. He further seeks an order that L. not be relocated and that he share care of L. on an equal basis. If S.J.O. chooses to remain in [redacted], he applies for L. to remain in his primary care.

In support of this position, he has argued the separation agreement is unenforceable. Counsel for A.R.J.P. states the custody issue should be decided as if this were an originating application. [ 7 ] On December 5, 2012, S.J.O. filed an application response, opposing the orders sought by A.R.J.P.. She counters by seeking an order that she be allowed to change the residential address of L. from [redacted] to the [redacted] region.

[ 8 ] Even though S.J.O. is responsible for the primary residence and care of L., she must bring this application because the separation agreement provides: 13. Neither party will move the residence of the Children from Vancouver Island without the written consent of the other or a court order, such consent not to be unreasonably withheld. [ 9 ] On December 10, 2012, MacKenzie J. ordered that S.J.O. was entitled to have L. with her in [redacted] from December 31, 2012 until the issues of custody, access and mobility were determined. [ 10 ] Accordingly, there are several issues for determination in this matter.

I will first examine whether the separation agreement is binding on the parties. I will make findings with regard to the reasonableness of S.J.O.’s decision to relocate and whether A.R.J.P. misled her with regard to whether he consented to her relocation. Finally, I will consider whether it is in the best interests of the child to relocate her primary residence to [redacted] or remain with her father. Analysis The Validity of the Separation Agreement [ 11 ] Two issues arise with respect to the validity of the separation agreement.

First, A.R.J.P. maintains this agreement does not reflect the actual arrangement between the parties. Second, he alleges the agreement is unfair. Both of these arguments serve to buttress A.R.J.P.’s position that he never intended for the separation agreement to be binding upon him.

I will dispose of these issues in that order. [ 12 ] In considering these arguments, I note A.R.J.P. has adopted the contradictory position of making use of the separation agreement paragraph restricting mobility while resisting S.J.O.’s designation as the parent with primary residence and day-to-day care of L. provided for in that agreement.

Whether the Agreement reflects the Nature of the Relationship [ 13 ] S.J.O. maintains the parties remained separate and apart after August 31, 2007. [ 14 ] A.R.J.P. submits the parties attempted reconciliation in March 2009 and that they remained together, sharing care of the children, until January 2011. After that point, A.R.J.P. claims he had regular and frequent access to L. and A.

He further claims he informed S.J.O. at one point in time that he wished to have a shared care arrangement for parenting and that he has consistently taken this position since the commencement of the family claim by S.J.O. on August 22, 2011. [ 15 ] I make the following findings with respect to whether the separation agreement reflects the nature of their arrangement between 2007 and the trial of this matter. [ 16 ] Following the 2007 separation, A.R.J.P. kept his belongings at a residence on [address redacted] and he received his mail at that residence.

However, he also lodged at S.J.O.’s residence, initially located on [address redacted] and later on [address redacted], [redacted]. A.R.J.P. would stay at her house, arriving after work to take over from the nanny at 4:00 p.m. and assisting until S.J.O. arrived home from work. He often made or helped in the preparation of dinner. A.R.J.P. slept on the couch, with his clothes in a suitcase or folded in the laundry room. [ 17 ] S.J.O. or A. would put L. to bed. Sometimes A.R.J.P. would be there for story time and to help with bedtime. [ 18 ] A.R.J.P. had no permanent living arrangement with S.J.O..

Occasionally she would send him away to stay at his residence on [address redacted] and she took the children to visit him there. [ 19 ] Their finances were also kept separate. For instance, A.R.J.P. indicated on his income tax returns for the period of 2007 - 2011 that he was separated. He also indicated on his sworn bankruptcy statement in 2010 that he was separated. [ 20 ] It is difficult to capture the nature of their personal relationship after their separation in 2007. A.R.J.P. and S.J.O. very occasionally had sexual relations while he was permitted to stay at her [address redacted] residence.

However, she was actively dating during this period and I cannot call their relationship “marriage-like”. S.J.O. conducted herself as a single woman. Both parties identified themselves to third parties as separated. To their credit, they were clearly friends who were able to deal comfortably and cooperatively with each other. Their affection and respect for one another appear to have continued right up to this proceeding. In my observation, the relationship remains one where S.J.O. is the leader and A.R.J.P. the passive-aggressive follower, a pattern which has endured throughout.

I mention this observation because it is relevant to A.R.J.P.’s attempt to characterize the separation agreement as having been foisted on him in such a way that I should ignore it. [ 21 ] It appears that after S.J.O. terminated a relationship with a former boyfriend in February 2009, she and A.R.J.P. discussed a possible reconciliation. [ 22 ] A.R.J.P. says that in the period of 2009 - 2011, they attempted reconciliation. S.J.O. agrees but she says she told A.R.J.P. he could not live with her.

At the time, she felt hopeful they could at some point resume their marriage because he had begun to take responsibility for his psychiatric problems and to accept the need for daily medication. He had also addressed his lack of personal hygiene, a serious issue between them when his depression was most acute during 2007 - 2008. [ 23 ] S.J.O. indeed attended counselling with A.R.J.P. during 2009. However, during this period of 2009 - 2011, she remained firm with A.R.J.P.’s family that he was not living with her. As well, when she talked to A.R.J.P.’s doctor during this period, she described

herself as A.R.J.P.’s “former wife”.

A.R.J.P. also described himself as “separated”. [ 24 ] I should also point out that A.R.J.P. was in a relationship with a woman named [redacted] between 2010 and 2011 ─ not something I would expect of a man who considered himself in a married relationship with someone else. [ 25 ] S.J.O. is unequivocal in her evidence that she did not permit A.R.J.P. to move in and that the relationship was never marriage- like again before she determined in January 2011 that her decision not to include him in her future was final. [ 26 ] The accommodation of a possible reconciliation is set out in the separation agreement at paragraph 48.

It reads as follows: 48. If the parties cohabit for a continuous period of more than 90 days, (

a) the following provisions of this Agreement will be suspended until the parties again have been separated for a continuous period of more than 30 days: (

i) the child support provisions, (ii) the provisions regarding the care of the Children, and (iii) the agreement to live separate and apart, and (

b) the remainder of this Agreement will continue in effect. [ 27 ] In my view, this provision of the separation agreement was never triggered by the permissive way in which A.R.J.P. was allowed to stay at the [address redacted] residence. At all times while he was there, he was subject to S.J.O.’s consent and she could and did request him to leave from time to time. I accept that they were close friends during and after the time they executed the separation agreement in May 2009 and I also accept that A.R.J.P. spent a good deal of time at the house on [address redacted] after S.J.O. moved into it in July 2009.

But it is quite possible for a couple to be separated and still spend time together, even in the same house. [ 28 ] A.R.J.P. further argues that the separation agreement was only prepared to allow S.J.O. to obtain a mortgage.

S.J.O.’s bank had required that any financial obligations she might owe to a spouse be determined for the purpose of analyzing her complete financial situation. [ 29 ] S.J.O. agrees that her need for a mortgage dictated the need for a separation agreement but she also observes that it was her advice to the Canadian Western Bank that she was separated that had triggered the requirement for a separation agreement. She says the formation of the separation agreement was also motivated by her view that the time had come to separate their finances and detail obligations between them.

Had they actually reconciled in March 2009, she would not have needed a separation agreement. [ 30 ] I find the parties separated in 2007. The parties were never reconciled. [ 31 ] I make the following findings with respect to the history of their arrangement for care of L. [ 32 ] I note the terms of joint guardianship were set out as follows in the separation agreement at paragraph 6: 6. Joint guardianship, for the purposes of this Agreement, means: (

a) the parents are to be the joint guardians of the estate of the child; (

b) in the event of the death of either parent, the remaining parent will be the sole guardian of the person of the child; (

c) the parent who has the primary responsibility for the day to day care of the child will have the obligation to advise the other parent of any matters of a significant nature affecting the child; (

d) the parent who has primary care will have the obligation to discuss with the other parent any significant decisions which have to be made concerning the child, including significant decisions concerning the health (except emergency decision), education, religious instruction, and general welfare of the child; (

e) the parent who does not have primary care will have the obligation to discuss the foregoing issues with the parent and each parent shall have the obligation to try to reach agreement on those major decisions; (

f) in the event that the parents cannot reach agreement with respect to any major decision despite their best efforts, the primary care parent shall have the right to make such decision; (

g) the other parent shall have the right to seek a review of any decision which that parent considers contrary to the best interests of the child; (

h) each parent will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third party care givers. [ 33 ] Paragraph 7 provides: 7. [redacted] will provide the primary residence and day to day care for the Children. [ 34 ] During the period of 2007 - 2011, A.R.J.P. participated actively in the care of L., although for the most part with the assistance of a nanny and in the presence of A., who was also involved in caring for L. Throughout this time, L.’s primary residence was with her

mother and her mother primarily cared for her. [35] In a general way, after January 2011, the parties did follow the terms of the separation agreement. A.R.J.P. exercised access toL. every second weekend as set out in paragraph 8. He also drove L. to some of her activities. He often took her to dinner during theweek until his work hours changed in April 2012.

From that point forward, it became the responsibility of S.J.O. to transport L. to heractivities. [36] I also find that throughout the period of separation, S.J.O. has made all arrangements for L. respecting doctor and dentalappointments, activities, schooling and after-school care. She is very much the organizer in L.’s life. In the words of Huddart J.A. inS.S.L. v.

J.W.W., 2010 BCCA 55 at para. 32 (S.S.L.), S.J.O. has taken primary responsibility for the health, safety, education and overallwelfare of L., dealing with the mundane but necessary arrangements of L.’s life. [37] I find the separation agreement generally reflects what has been the arrangement between the parties after their separation. L.has, for the most part, lived under S.J.O.’s care and in her home in [redacted].

Whether the Separation Agreement is Fair [38] A.R.J.P. further insists the separation agreement was not negotiated in good faith. [39] Counsel for A.R.J.P. points out what he believes to be inequities, such as the lack of spousal support and the allegedly unequaldivision of debt. He also points to S.J.O.’s authority as a lawyer and her status in the relationship as conferring upon her the ability toinfluence A.R.J.P. to accept the agreement.

On this basis, he says the entire agreement should be set aside. [40] A.R.J.P. makes no argument that his somewhat uncertain mental health at the time rendered suspect his capacity to enter intothe agreement. [41] Counsel for A.R.J.P. argues that the lack of enforcement of most of the separation agreement also supports A.R.J.P.’sunderstanding that the separation agreement was for no other purpose than to allow S.J.O. to obtain a mortgage.

Thus the provisionsrespecting custody and access and the designation of primary residence should be regarded as having no force. [42] A.R.J.P. contends that at the time he executed the separation agreement, he and S.J.O. were attempting to reconcile and weretogether so that the agreement was not relevant and signing it meant nothing. I have already disposed of this ground. [43] At this point, I must observe that I am not charged with determining the fairness of the separation agreement as a whole and Imake no finding on the economic provisions of the separation agreement. They are severable in any event.

Should the parties so desire,the economic consequences of the separation agreement can be dealt with in a separate proceeding. [44] Based on the evidence before me, I note that the only aspect of the agreement that has not been enforced is A.R.J.P.’s obligationto pay child support. S.J.O. has not engaged the assistance of Family Maintenance Enforcement to enforce this obligation. [45] I find that S.J.O. urged A.R.J.P. to get independent legal advice and had her lawyer write a letter to A.R.J.P. on the meaning ofthe separation agreement and the need for A.R.J.P. to obtain legal advice thereon.

A.R.J.P. signed the separation agreement. He waivedhis right to independent legal advice and signed a certificate to indicate that waiver. [46] A.R.J.P. agreed in cross-examination that S.J.O. told him about the contents of the separation agreement and that he recalledreceiving and reading the letter from her lawyer describing the separation agreement and requesting that he obtain independent legaladvice. [47] Furthermore, A.R.J.P. claims he pressed for equal parenting time with L.

This indicates to me that he participated, perhaps to alimited degree, in the negotiation process and that he understood his rights would be affected by the separation agreement. [48] A.R.J.P. was certainly aware that S.J.O. considered the document binding upon them, at least with respect to the separation oftheir financial interests. [49] I am not receptive to A.R.J.P.’s argument that he only signed the separation agreement for the limited purpose of S.J.O.obtaining a mortgage and therefore should be relieved of its consequences.

What I find curious about this rationale for signing theseparation agreement is that A.R.J.P. seemed to understand it served to separate their finances and permit S.J.O. to buy a house. Thus, hedid give some credence to the separation agreement. No doubt, in his view, he accepted it only for those purposes which he did notparticularly care about and not for those purposes which might have been important to him. [50] As I observed in my decision J.R. v. A.A.R., 2005 BCSC 1135, which involved a similar issue: [45] The nature of the transaction was to procure an agreement which would protect the assets of Ms.

J.N.R. both entering into, andcoming out, of the marriage. A Marriage Agreement, while a contract, is not to be considered in the same way as a commercial contract,particularly in looking at general unfairness: Stark v. Stark (1990), (BC CA), 47 B.C.L.R. (2d) 99. However, even aMarriage Agreement must be considered in the context of some deference to freedom of contract and the inviolability of bargains:Hartshorne v. Hartshorne, [2004] 1 S.C.R. 550, 2004 SCC 22. Here, as I have stated, it was absolutely clear that Mr. P.N. was acting inpursuit of Ms. J.N.R.’s interests. That Mr.

A.A.R. would be somewhat disadvantaged on the break-up of the marriage if he signed theMarriage Agreement was patently obvious. This factor is also insufficient to support an allegation of undue influence on Mr. P.N.’s part. [51] A.R.J.P. seems to have followed his usual pattern of conduct of simply going with the flow, which allowed him to stay aroundthe [address redacted] residence as long as S.J.O. permitted him to be there while they conducted their financial and personal affairs as ifthey were separated.

[ 52 ] I find the separation agreement is binding with respect to the issues I am asked to consider: custody and access. To find otherwise would make a mockery of S.J.O.’s efforts to bring the importance of the separation agreement to A.R.J.P.’s attention by way of a letter and by including in the document a provision that again advised A.R.J.P. that he was waiving his right to independent legal advice. [ 53 ] By agreeing to do so, A.R.J.P. was indicating that he was indifferent to the consequences of his signature on the document. He should not now be relieved of responsibility for signing that contract.

Whether S.J.O.’s Decision to Relocate is Reasonable [ 54 ] S.J.O. received six months’ working notice of her termination from her [redacted] employer on August 31, 2012. As the sole supporter of her two children, she was understandably frightened by the prospect of being unable to support them or meet her mortgage obligations. [ 55 ] S.J.O. had already been actively searching for a new position out of dissatisfaction with her job before she was dismissed.

As of February 2012, she had been looking for other opportunities in [redacted] and elsewhere, but without success. [ 56 ] The difficulty she faced in her search for new employment was that she could not afford to consider positions that did not offer a reasonable salary and benefits to cover her needs before she would be in receipt of billings for work done. [ 57 ] She spoke to two law firms in [redacted].

One in particular had interested her but that firm had not been looking to hire a salaried associate. [ 58 ] Given the demanding nature of her job, S.J.O. then decided she would search for an in-house counsel position.

She had believed it would give her more time with her children while providing her with reasonable remuneration and good benefits without the uncertainty accompanying self-employment. [ 59 ] In late April 2012, S.J.O. contacted a legal placement agency to inquire about in-house counsel jobs in [redacted]. [ 60 ] There is affidavit evidence from the legal placement agency that was proffered in the original application brought by A.R.J.P. to restrain S.J.O. from moving L. from [redacted]. The parties agreed that I could rely on this affidavit evidence to make my decision. I have consulted the affidavit of Ms.

Alice Toal of the Counsel Network concerning her contact with S.J.O. [ 61 ] Ms. Toal’s affidavit makes clear that in-house counsel jobs in British Columbia are scarce and the market competitive. As well, she states the type of in-house solicitor’s position sought by S.J.O. is not available in [redacted]. Ms. Toal deposes that over the period of April 27, 2012 to August 31, 2012, no in-house positions became available in Vancouver or on Vancouver Island at S.J.O.’s level that would have permitted her to remain in [redacted]. [ 62 ] Hence, the opportunities for S.J.O. were limited.

S.J.O. did apply twice for an in-house position in Vancouver but she was not granted an interview. She also contacted a large local industrial company, which is a client of her former firm, with respect to a possible in-house position. It is not clear at what point in time she made this effort. [ 63 ] Once she received the notice of termination in August 2012, S.J.O. began to search in earnest for another position in [redacted] that would meet her needs. [ 64 ] It turns out her own financial difficulties precluded her from any job offer.

She did not find any positions other than those in which she could share space and expenses in return for a percentage of her billings. No start-up assistance was available. [ 65 ] She spoke to her bank and her father, a Chartered Accountant and former trustee in bankruptcy, to ask about a business loan to allow her to pay for an office and living expenses while she established her business and began billing. She did not tender evidence from the bank or her father to support this assertion, and therefore her own report of what the bank and her father told her is hearsay.

Nonetheless, from the evidence of the state of her debt level, I can understand why she was not able to obtain a loan to open her own business in [redacted]. [ 66 ] It was through the Counsel Network that S.J.O. first became aware of the position in [redacted]. S.J.O. had contacted Ms.

Toal upon her termination and had advised her that she would be interested in applying for the [redacted] position. [ 67 ] S.J.O. said that she would have been forced to return to her parents’ home in Thunder Bay had she failed to find employment. [ 68 ] Counsel for A.R.J.P. cross-examined S.J.O. vigorously on her failure to consider looking for employment that would have involved moving to the environs of Vancouver. [ 69 ] S.J.O. agreed she had not looked very far afield but her explanation I found was reasonable. First, she noted the cost of living in that region is too high.

Housing in the suburbs of Vancouver is still much more costly in comparison to [redacted]. Also, if she took a position in that region, she would likely have to commute, reducing her time available for her children. [ 70 ] In my view, S.J.O. had little choice but to accept the [redacted] position, particularly given she did not receive any child support from A.R.J.P. I do not find her decision to take the [redacted] position unreasonable in the circumstances. [ 71 ] Furthermore, it is clear that S.J.O.’s employment income has always served as the regular source of funds to support herself, L. and A.

Before the separation, her income also supported A.R.J.P. [ 72 ] Certainly, S.J.O.’s search for employment is not vulnerable to criticism from A.R.J.P. as she has throughout their separation borne all the expenses for L. Had she remained in [redacted] and been unemployed, she certainly could not have turned to A.R.J.P. to

meet their financial needs. The issue of whether A.R.J.P. misled S.J.O. with regard to Consent for Relocation [73] After S.J.O. received notice of termination, she continued to communicate with A.R.J.P. about her circumstances via textmessages.

A.R.J.P., it seems, was very supportive when she expressed her concerns and he even supported her application for the[redacted] position. [74] However, he now says this support was not meant to mislead her and that as soon as the [redacted] position became a realpossibility he made it clear that he would not consent to L. being moved from [redacted]. [75] While I find A.R.J.P. did mislead S.J.O. early on when he said that he thought the [redacted] job was best for both her and thegirls, I do not believe that this assurance caused S.J.O. to confirm her acceptance of the job or that she would not have taken the positionin [redacted] had A.R.J.P. been more active in his opposition to moving L. from [redacted] at an earlier point. [76] The very dynamic of their relationship virtually assured things would proceed as they did and necessitate this trial.

S.J.O. is thedynamic leader and she has always been the higher earner. She directs the family affairs and she is used to having it her way. A.R.J.P. ispassive-aggressive and he seems to follow along, appearing calm on the surface while he waits to see if things will fall his way before hetakes a position. The Best Interests of the Child Legal Framework [77] I must now look to the paramount test in circumstances of a mobility application: the best interests of the child. The frameworkfor this analysis was set out in the leading Supreme Court of Canada decision Gordon v.

Goertz, (SCC), [1996] 2S.C.R. 27 (Gordon). [78] The factual matrix in Gordon is different from this matter. Gordon involved an application to vary an order by a non-custodialparent pursuant to s. 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) [Divorce Act]. [79] Our Court of Appeal has held that Gordon applies to cases involving initial custody determinations as well as custody ordervariation applications: Hejzlar v. Mitchell-Hejzlar, 2011 BCCA 230 at para. 22 (Hejzlar). [80] Yet, in this matter, there is no custody order in place.

The issues of custody, guardianship and access have been dealt with in theparties’ separation agreement. Furthermore, the parties have essentially framed their arguments in relation to primary residence; they arein agreement that the joint custody arrangement does not need to change. [81] A strikingly similar situation arose in Hejzlar. In that case, the appellant mother had applied to relocate from the LowerMainland of British Columbia to Edmonton with her nine year old son to reside with her husband, who had accepted employment in thatcity after being laid off in British Columbia.

The parties had entered into a separation agreement that was comprehensive. It established aregime of joint custody and guardianship, with the child’s primary residence being with the mother. The father had limited access. Theagreement further provided that neither party was permitted to move outside the Lower Mainland of British Columbia without theconsent of the other party or a court order. The respondent father had withheld consent and he had commenced proceedings, seeking jointcustody, joint guardianship, access and an order defining primary residence.

He further obtained an ex parte order preventing the motherfrom moving. The trial judge rejected the appellant’s application to relocate. He ordered that primary residence be with the father if themother decided to move to Edmonton and he adjourned all other claims for relief. The mother appealed on the ground that the court hadfailed to properly balance the factors in Gordon. [82] The Court of Appeal was faced with two preliminary issues: how to resolve the issues of mobility and residency without anorder in place and whether the court had jurisdiction to grant an order with respect to primary residence.

As Saunders J.A. noted,“primary residence” is not found in either the Divorce Act or the Family Relations Act, R.S.B.C. 1996, c. 128 [FRA]. [83] The procedural solution devised by the Court of Appeal was to first make an order determining either custody or access: [20] The preferable basis for consideration of a child mobility issue is s. 16 of the Divorce Act where available, as the federallegislation is paramount (or where a custody order under s. 16 already exists, s. 17). [21] What to do? The parties clearly are in agreement that they will raise the child under the cloak of joint custody.

To regularize theorder and bring the issues on appeal properly to this court under the legislation discussed in the leading case of Gordon v.

Goertz and insubsequent authorities, I am of the view we should order joint custody for the child, opening the way to direct consideration of the issueof the child’s primary residence. ... [84] The Court of Appeal then instructed that the Gordon principles do apply to consideration of primary residence: As stated bySaunders J.A. in Hejzlar at para. 33: To what degree, then, is discussion of principles in custody cases applicable where the issue is not custody but rather primary residence?Custody, access and guardianship are concepts known to the law and used in legislation. “Primary residence”, on the other hand, is not adefined term.

Rather it is a term that connotes an aspect of custody, but without all the attendant legal authority over the child.Arrangements for care of a child have many models; aspects of child responsibility and child care are capable of being organized into avariety of sub-sets of the two large and legally meaningful categories of custody and guardianship. “Primary residence” is a sub-set ofcustody, so to speak, falling short of the full legal responsibility inherent in that term. As a vital aspect of parental care for a child,

however, it seems to me only right that the same considerations should apply to a decision on primary residence as apply to custody questions. I consider that in circumstances of a parent who is and has been the primary caregiver, and provides the primary residence for the child, the Gordon v.

Goertz instruction to respect the views of the mobile parent, applies fully. [Emphasis added] [ 85 ] I am both bound and persuaded by this logic. [ 86 ] To bring this case within the analytical framework for mobility as set out in Gordon , I order the parties have joint custody and guardianship of L. [ 87 ] The law relating to the best interests of the child was summarized in Gordon at para. 49 : 1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child. 2.

If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect. 5. Each case turns on its own unique circumstances.

The only issue is the best interest of the child in the particular circumstances of the case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia : (

a) the existing custody arrangement and relationship between the child and the custodial parent; (

b) the existing access arrangement and the relationship between the child and the access parent; (

c) the desirability of maximizing contact between the child and both parents; (

d) the views of the child; (

e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child; (

f) disruption to the child of a change in custody; (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [Emphasis in original] [ 88 ] The fundamental principles with respect to the best interests of the child and the burden of proof in a mobility application were further discussed in para. 143: 1. All decisions as to custody and access must be made in the best interests of children, assessed from a child-centred perspective. 2.

In the absence of explicit restrictions on the incidents of custody, such as the child's place of residence, it must be assumed that an existing custody order or agreement reflects the best interests of the child and that the appropriate decision-making authority lies with the custodial parent. 3. In determining the best interests of the child, courts must focus on the impact of the change of residence on the existing custody order and the appropriate modifications to access as the case may be, and generally not proceed to a de novo appraisal of all the circumstances of the child and the parties. 4.

The non-custodial parent bears the onus of showing that the proposed change of residence will be detrimental to the best interests of the child to the extent that custody should be varied or, exceptionally, where there is cogent evidence that the child's best interests could not in any reasonable way be otherwise accommodated, that the child should remain in the jurisdiction. 5.

The proposed change of residence of the child by the custodial parent will not justify a variation in custody unless the non-custodial parent adduces cogent evidence that the child's relocation with the custodial parent will prejudice the child's best interests and, further, that the quality of the non-custodial parent's relationship with the child is of such importance to the child's best interests that prohibiting the change of residence will not cause comparable or greater detriment to the child than an order to vary custody. 6.

Where there is an agreement or court order explicitly restricting the child's change of residence, the onus should shift to the custodial parent to establish that the decision to relocate is not made in order to undermine the access rights of the non-custodial parent and that he or she is willing to make arrangements with the non-custodial parent to restructure access, when appropriate, in light of the change of residence of the child.

[ 89 ] The crucial issue that I must determine is L.’s best interests from the point of view of her emotional and physical well-being and the impact a reduction of time with her father would have if she were to remain in [redacted]. [ 90 ] As there is an agreement in place that restricts a change to the location of the child’s residence, the onus shifts to S.J.O. to demonstrate that the decision to relocate is not made in order to undermine the access rights of A.R.J.P. and that she is willing to make arrangements with A.R.J.P. to restructure access. [ 91 ] A.R.J.P. has alternatively applied to change primary residence in the event that S.J.O. chooses to remain in [redacted].

As change of primary residence, as a custody matter, also comes within the Gordon framework, the burden of proof rests with A.R.J.P. to show that a variation of the primary residence is in the best interests of the child. [ 92 ] Each party must advance evidence in support of their position: D.S. v. T.J.S ., 2012 BCSC 1946 at para. 25 . Application to the Facts [ 93 ] The threshold test for applying Gordon is clearly engaged. [ 94 ] A material change is found when it alters the child’s needs or the ability of the parents to meet those needs in a fundamental way: Gordon at para. 12 . S.J.O. lost her job.

As she is the sole financial support for L., her finding a new job in [redacted] materially changes their circumstances. [ 95 ] I must now embark on a fresh inquiry into the best interests of the child, having regard to all the relevant circumstances that relate to the child’s needs and the parents’ ability to satisfy them. (

a) Existing custody arrangement and relationship between the child and the custodial parent [ 96 ] I have ordered that the parties have joint custody and guardianship of L. This arrangement is in keeping with the separation agreement. [ 97 ] Huddart J.A. instructed in S.S.L . that there is no presumption in favour of the status quo where parties have joint custody and one party seeks to move: para. 12. The relationship between the child and the parents should be examined in light of the parents’ responsibilities: para. 32. [ 98 ] I do not doubt that A.R.J.P. loves L. and L. loves A.R.J.P.

A similar bond exists between L. and S.J.O. [ 99 ] I have already found that S.J.O. has assumed primary responsibility for the care of L. Most importantly, she is the sole parent ensuring financial support for her child. A.R.J.P. has assumed a secondary role in care giving and he does not pay child support. (

b) Existing access arrangement and the relationship between the child and the access parent [ 100 ] I have come to the conclusion that S.J.O. has always been the parent who maintained a stable and consistent home for L. [ 101 ] A.R.J.P. has had parenting time with L. every second weekend ever since January 2011 and, for a short while, weeknight dinners. Before that time, A.R.J.P. seems to have enjoyed more frequent contact with the child but it was always in the company of other family members or a nanny. (

c) The desirability of maximizing contact between the child and both parents [ 102 ] I accept that a move to [redacted] would negatively impact upon A.R.J.P.’s ability to maintain maximum contact with L. [ 103 ] The British Columbia Court of Appeal has held that this factor is not an absolute bar on mobility, especially when the custodial parent is willing to facilitate the other’s parent’s reasonable access to the child: Falvai v. Falvai, 2008 BCCA 503 at para. 32 .

In this case, S.J.O. has been flexible in an access arrangement and paying for that access. [ 104 ] S.J.O. has said that A.R.J.P. may visit L. at any time as long as he does not interfere with her attendance at school or her activities. [ 105 ] With respect to access, the relationship between S.J.O. and A.R.J.P. is sufficiently cordial that she would be capable of accommodating A.R.J.P. in [redacted] for a weekend visit should the opportunity arise. [ 106 ] S.J.O. has also said that if she were to come to Vancouver for business, she would arrange to bring L. so that she could visit with A.R.J.P. [ 107 ] I will review this arrangement in further detail when I address access. (

d) The views of the child [ 108 ] I do not have the benefit of a “Views of the Child” report, even though MacKenzie J. ordered that one be obtained before the trial of this matter. It seems there was insufficient time to obtain a “Views of the Child” report before S.J.O. reported for her new position in [redacted]. [ 109 ] I am reduced to drawing inferences from the evidence of the parties. I can infer that L. would want to continue enjoying a relationship with her mother and father.

She also enjoys a strong bond with her sister, and I can infer from this relationship that she would wish for them to remain together. This factor has been considered relevant and given weight in British Columbia courts: One v. One , 2000 BCSC 1584 at para. 24 ( One ).

[110] Of course, given L.’s age, even if I had been provided with a “Views of the Child” report, it would not necessarily be givenmuch weight: Barnetson v. Cook, 2005 BCSC 913 at para. 64 (Barnetson). The views of a child will be accorded greater weight whenthey come to a near adult age and are capable of responsible thought: Alexander v. Alexander (1988), (BC CA), 15R.F.L. (3d) 363 (B.C.C.A.) at 365. (

e) The custodial parent’s reason for moving [111] Nunweiler v. Nunweiler, 2000 BCCA 300 at para. 28 instructs that this factor is only relevant if the applying parent’s reason isimproper. [112] S.J.O.’s reasons are not improper in light of my findings above.

Rather, her move to [redacted] is necessitated by her financialsituation and is thus relevant to the needs of L. [113] I note Barnetson at paras. 66 - 67, where the court held that in situations where the primary caregiver is proposing the move, thecourt will find the best interests of the child will be served when the custodial parent will gain financial independence and careerfulfilment. Other authorities that support this proposition include One at para. 24 and Robles v. Kuhn, 2012 BCSC 752 at paras. 154 -164. (

f) Disruption to the child of a change in custody [114] A.R.J.P. has been a loving and involved parent but I have not found he has exhibited a pattern of independent exercise of andability to care for L.

On the occasions when he has taken responsibility for care of L. on weekends or when S.J.O. is away, he has theassistance of the nanny, A., his girlfriend or his father. [115] I am not satisfied that A.R.J.P. would be capable of taking the active steps required to care for L. on a daily basis to deal with themundane but necessary activities of her life. [116] I note that as recently as two months ago, A.R.J.P. directed his pharmacy to blister pack his mental health medications so that hewould be able to track his consumption more accurately.

I infer from this action that A.R.J.P. has recently found it difficult to take all ofhis medications regularly. His past pattern of non-compliance with his medication regime has also interfered with his return to stablemental health and he now admits he must take his medications to maintain stability.

The generous assistance of his father and girlfriendis helpful but they are not present on a constant basis. [117] In no way am I criticizing A.R.J.P.’s need to be certain that he has taken all of his medications but I am concerned that herequires this kind of assistance to ensure that he will not fall into serious depression again. From the pattern of his depression, it appearshe is highly sensitive to situational stressors. As a working single parent, having the day-to-day care of L. as she grows older wouldundoubtedly place stresses upon him. [118] I further note some stressors already in place.

The year 2011 was very difficult for A.R.J.P. with the finality of S.J.O.’sannouncement, a break-up with his girlfriend in Terrace, the loss of his mother from cancer in September, and a failure at a promotion inhis employment. These events caused him to fall into depression although he was able to carry on with his employment after a leave ofabsence. [119] These factors, taken together, suggest that L. may not enjoy the stability and attention she needs if she is left in the primary careor A.R.J.P. (

g) Disruption to the child consequent on removal from family, schools, and the community he or she has come to know [120] There is disruption to L. in a move to [redacted]. That fact is self-evident. [121] L. attended an excellent French immersion school in [redacted] and her French language skills are important and reinforced byher father’s bilingualism. A.R.J.P. speaks to L. in French. [122] L.’s paternal grandfather lives in Vancouver and he is able to spend time in [redacted] at the residence on [address redacted],which he owns. He also speaks French to L.

I have no doubt he is very fond of her and that he is willing to help with her care. [123] The disruption to her familial ties and her schooling can be minimized. [124] L. is currently only six and a half years old and not long-established in her [redacted] school.

She is currently enrolled in aFrench immersion school in [redacted]. [125] I note the grandfather has the financial resources to visit L. in [redacted], which he agreed he would do. [126] If L. were to remain in [redacted], A.R.J.P. would be able to speak with her daily if he wishes, and he could do so in French. [127] Other than the disruption to the relationship with her father and grandfather, I do not have evidence about an extended family in[redacted] and L.’s relationship with them, if any.

A.R.J.P.’s current girlfriend’s family is one with which L. has socialized on occasion. [128] S.J.O. does not have a network of family and friends for L. in [redacted], but as she points out, she did not have such a networkwhen she arrived in [redacted] when L. was an infant.

S.J.O. has been able to establish connections with the community and she expectsto do so in [redacted] with the added advantage of being in an even smaller community. [129] Counsel for A.R.J.P. argues it is unlikely that [redacted] will have the same array of facilities as are available in [redacted] but Ido not have evidence on the lack of recreational activities available to L. that she formerly participated in.

[ 130 ] Without trespassing upon the confines of the doctrine of judicial notice, I would imagine there are team sports and after school activities available for children in [redacted]. I understand that S.J.O. has already arranged before and after-school care and some activities for L. [ 131 ] Finally, countering the disruption that will result from the interruption of L’s relationship with her father and grandfather is the fact that if L. remains in [redacted] with S.J.O., she will have the benefit of her continued relationship with A., her only sibling.

Despite the fact that A. is seven years older than L., L. adores A. and A. has always played an important role in L.’s life. Separating them would remove an important element from L.’s life. Disposition [ 132 ] It is in the bests interests of the child to relocate her primary residence to [redacted] and remain in the care of her mother. I am satisfied that L.’s stability will be better maintained in [redacted] with S.J.O., provided that access arrangements can be made to maintain a relationship with her father.

I find this arrangement will minimize disruption to the child. [ 133 ] I reject A.R.J.P.’s argument that S.J.O. could have remained in [redacted] so that they could have continued to share all the incidents of joint custody, including ease of access which is not possible with L. being in [redacted]. [ 134 ] I am also satisfied that S.J.O. is motivated to encourage and cultivate L.’s relationship with A.R.J.P. and to adjust his access so as to allow L. to see her father whenever it can be arranged. [ 135 ] Nothing in the evidence points to S.J.O. undertaking this move to undermine L.’s relationship with A.R.J.P..

Access [ 136 ] S.J.O. will be permitted to maintain L.’s primary residence in [redacted]. [ 137 ] A.R.J.P. should be paying child support in the amount of $539.00 per month based on his income of $35,000.00 per annum. However, S.J.O. has said that she will waive child support if he will assume the cost of access to L. [ 138 ] In my view, she must do more than that. She must also defray the costs of escorting L. to Vancouver until she is able to fly by herself. [ 139 ] I am told that until L. is eight years old, she cannot travel as an “unaccompanied minor”.

Therefore, for the next year and a half, (her seventh birthday is in June) she must be escorted on the plane. [ 140 ] Until L. is 12, it is my view that any travelling she does should not be on the ferry from [redacted] to [redacted] since the trip is too long for a child of her age and will not in, any event, afford reasonable visiting time in [redacted] after a four-day journey. [ 141 ] A.R.J.P. will have approximately $6,000.00 otherwise payable as child support available to him to defray the cost of access. [ 142 ] I am told that the price of air fare to [redacted] varies substantially.

At an average price of $1,000.00 return fare, A.R.J.P. could take six trips to [redacted] so that he can visit L. at times other than Christmas and spring break. [ 143 ] If necessary, I will hear further submissions on this point, and I encourage the parties to negotiate a solution here, but I would suggest that until L. is eight years old, S.J.O. accompany L. from [redacted] to Vancouver International Airport for Christmas or spring break visits at her cost. A.R.J.P. will meet them and take L. to [redacted] by whatever means of transportation he wishes at his cost.

For example, he could take L. by ferry to [redacted] via the Tsawwassen Ferry terminal to Duke Point. [ 144 ] At the end of her visit, he would take L. back to Vancouver International Airport where A. or S.J.O. would meet her for the trip back to [redacted] at S.J.O.’s cost. [ 145 ] A.R.J.P. is to have L. for alternate Christmas breaks, commencing with the first day after the Christmas holidays begin to New Year’s Day, with even years to S.J.O. and odd years to A.R.J.P. [ 146 ] He will also have the right of first refusal to have L. for spring break.

Her time with him will commence on the second day of spring break and last until the day before she returns to school. [ 147 ] In the summer, A.R.J.P. will have L. for the last two weeks of July and the first two weeks of August. In ordering this extended access, I am aware that A.R.J.P.’s holidays will not make him fully available to L. for that entire time. He will have to do what working parents always do: arrange for care of L. on the days he is working. This is no different than it would be if he had responsibility for full- time care of L.

He will have evenings and mornings with her when he is not on vacation. However, I assume he will use his vacation time when she is visiting so that they will have some extended time together. [ 148 ] Such arrangements as I have ordered may have unexpected consequences so that the parties may mutually decide to organize their lives differently.

But the regime I have ordered is intended to give A.R.J.P. as much opportunity as possible to see L. [ 149 ] In addition to longer stays with A.R.J.P., at minimum S.J.O. is to allow L. to call A.R.J.P. every Wednesday and Saturday at 6:00 p.m., or at any other time as may be workable for both him and L. S.J.O. has said that she has no difficulty with L. speaking to A.R.J.P. daily, but I have concerns that if I order such frequent contact it will interfere with both L. and A.R.J.P.’s ability to take

part in other activities. [ 150 ] I will also order that S.J.O. install a programme on her computer that will allow L. and A.R.J.P. to have video contact on

Thursday afternoon at 6:00 p.m. or at such other time as may be agreed upon between the parties. [ 151 ] There will be a review of the efficacy of the access order no later than March 31, 2015. [ 152 ] I will remain seized of this matter for one year from the date of my decision. [ 153 ] If the parties are unable to work out the costs of this matter, I will hear submissions. “L.D. Russell J.” _______________________________________ The Honourable Madam Justice Loryl D. Russell