L.M.B. v. K.A.V. Date:, 2012 BCPC 334

Citation: L.M.B. v. K.A.V. Date: 20120830 2012 BCPC 0334 File No: 02-1215 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: L.M.B. APPLICANT AND: K.A.V. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.M. MERRICK (Via Videoconference)

Counsel for the Applicant: D. Fairweather Counsel for the Respondent: T. Howard Place of Hearing: Sechelt, B.C. Date of Judgment: August 30, 2012 EXCERPTS FROM PROCEEDINGS [1] THE COURT: E.B. is the 12-year-old daughter of L.B. and K.V. Pursuant to a separation agreement amended over the years,the parties share joint guardianship and custody of E. E. has always resided with her mother. [2] At the end of June 2012, Ms. B.'s husband accepted a job in Calgary. Ms. B. told Mr. V. by email on July 1, 2012, of thedecision to move to Calgary.

This was the same day that E. commenced summer access with her father in Davis Bay. E. expressed toMr. V. that she did not want to move to Calgary. Mr. V. informed E. that he wanted to know what she wanted and that she was welcometo reside with him, his wife, and her half-siblings in Davis Bay. [3] E. continued to express a desire to reside with her father in Davis Bay, which remained consistent throughout July and earlyAugust. She composed a letter to her mother setting out her wishes. That said, E. did not give the letter to her mother, nor did Ms. B. seeit until this hearing. Ms.

B.'s evidence is that E. is prepared to move to Calgary. [4] This is an application pursuant to ss. 9 and 24 of the Family Relations Act for an interim order to determine E.'s residency. Ms.B. applies for an interim order to change E.'s residence to Calgary, and Mr. V. applies for an interim order to have E. reside with him inDavis Bay. [5] The applicable legal principles are not at issue. The leading authority on the test to be applied is Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27. The test comprises a two-step process.

One, the applicant must meet the threshold requirementof demonstrating a material change in circumstances affecting the child. Two, if the threshold is met, the applicant must establish thatthe proposed move is in the best interests of the child given all of the relevant circumstances for the child's needs and the ability of therespective parent to satisfy them. [6] There is no legal presumption in favour of the custodial parent. The status quo is not a default position. While I must considermaximizing contact between the child and the parents, that is not determinative.

The best interests of the child is paramount. [7] Relevant to the determination of whether the proposed move is in the child's best interests are the following factors: (1) theexisting access arrangement and the relationship between the child and the access parent and the child and the custodial parent, (2) thedesirability of maximizing contact between the child and both parents, (3) the views of the child, (4) the reason for moving, (5) thedisruption to the child given the change in and removal from family, schools, and the community she has come to know (see Gordon v.Goertz). [8] I must also consider the following 12 factors: the parenting capabilities of and the children's relationship with parents and newpartners; the employment security and prospects of the parents and, where appropriate, their partners; the access to and support ofextended family; the difficulty of exercising the proposed access and quality of the proposed access if the move is allowed; the effect onthe child's academic situation; the psychological/emotional well-being of the child; the disruption of the child's existing social andcommunity support and routine; the desirability of the proposed new family unit for the child; the relative parenting capabilities of eachparent and the respective ability to discharge their parenting responsibilities; the children's relationship with both parents; the separationof siblings; and the retraining or educational opportunities, if any, for the moving parent (see One v.

One, 2000 BCSC 1584). [9] These factors also apply on an interim application: see Grant v. Grant, 2001 BCSC 1289. [10] I am satisfied that both parties have met the threshold requirements. [11] Many of the factors that I must consider are more than adequately provided by each parent. Both parents have economicsecurity and are able to fund E.'s access to special resources. Both will provide E. access to the educational resources and medicalsupport she requires.

Both provide immediate family support in a loving, caring environment and access to recreational resources. [12] Prior to reviewing the factors which are determinative, I note that E. thrives if disruption is minimized, solid relationshipnetworks are maintained, and she receives assistance in ensuring her needs are properly met. [13] Quoting from paragraph 27 of the able submission of Father's counsel, I note that: The most current and comprehensive psychological assessment of E. establishes that: a.

While she technically meets the criteria for Autism Spectrum Disorder (Aspergers), she functions very well at the high end of thespectrum and her disorder is very mild.

b. She does not meet the criteria for any learning disability. c. Her intellectual ability is average, her information processing speed is average, she has no difficulties with basic visual perception, her memory ability is high average, and her academic achievements range from high average (reading) to low average (math). d. She can cope with a regular academic program in a regular school environment, provided she is afforded certain accommodations (extended test times etc.) e. She needs particular environmental supports to thrive.

These include a stable and predictable environment – E. does not adjust well to change, and novelty should be reduced or avoided - and a consistent, supportive peer environment to address the significant difficulties with peer socialization, including social anxiety with peer groups, reported by Ms. B. [ 14 ] I will now address the determinative factors. 1. If E. moves to Calgary, the existing arrangements and the relationship between E. and her parents will remain unchanged. E. will continue to see her dad at the same times as she did when she lived in Victoria. 2.

Upon learning of the move, E. commenced summer access with her father. E. told her father that she did not want to move. That was a view that continued throughout her time with her father and culminated in a letter to her mother confirming her view. I think it is significant, however, that E. never gave her mother the letter. Perhaps she never gave her mother the letter because the letter was to satisfy her father, who presented her with the range of options. I did not receive a views of the child report nor did I meet with E.

Given the circumstances in which the move was presented to E., her immediate visit and lengthy stay with her father, her failure to present the letter to her mother, and the absence of a views of the child report, I am not prepared to give any weight to E.'s letter, and I have concluded that this case must be decided without reference to E.'s view as I am not satisfied that I have any independent or direct evidence of that view. 3. Mother's parenting capabilities. Mr. V. submits that there is a reasonable question as to the appropriateness of the matter in which Ms. B. approaches caring for E.

First, he suggests Ms. B. has not consulted with him regarding significant matters concerning E. This, of course, is a violation of the joint guardianship provisions of the separation agreement. As Mr. V. notes, however, there is "a strained relationship between he and Ms. B." I am satisfied on the evidence before me, that is, the evidence of Mr. V. himself, that he, Mr. V., has failed to consult with Ms. B. and has not discharged his responsibilities pursuant to the separation agreement. Regarding Ms. B.'s advocating for a diagnosis for E. in order to secure a tax credit, I disagree with Mr.

V.'s characterization that Ms. B. has allowed her perceptions of E.'s issues to unduly colour her view of what is best for E. I accept Ms. B.'s explanation that she was attempting to meet the criteria required to obtain the tax credit. While I appreciate Mr. V.'s objection to his daughter "being labelled," the legislature and Parliament create programs and tax credits which are criteria-based which to some have the side-effect of creating a label. That is the perception of Mr. V. I do not agree with Mr. V.'s characterization of this, and I am satisfied that Ms.

B. has more than adequate parenting skills and can more than adequately provide for E.'s psychological and emotional well-being. I am also satisfied that her father, Mr. V., can meet those needs as well. 4. I will now deal with the disruption to E. given each of the proposed moves. I do agree that a move to Davis Bay provides a certain degree of familiarity and continuity. E. will be in a home she knows well and attending a school where she will know several children. However, on short notice, she would be taken from the only person she has lived her whole life with.

Her time with her mother would be reduced significantly. While it is true that if E. moves to Calgary she will be in a completely new environment, she will be in that environment with her mother. E. and her mother have moved before, and E. has done well. I am of the view that the disruption is actually greater by a move to Davis Bay.

Considering that the move to Calgary will maintain the existing relationship between E. and her parents and not disrupt E.'s access to her father, that mother possesses more than adequate parenting abilities and can provide for E.'s physiological and emotional well-being and the move to Calgary is less disruptive than a move to Davis Bay, I have determined that it is in E.'s best interests to move with her mother to Calgary. [ 15 ] There shall be an interim order for joint custody and guardianship along the Master Joyce model. Primary residence will be with her mother, Ms.

B. [ 16 ] The matter should be stood down to the case manager to set dates for the further aspect of this hearing and a continuation of the maintenance hearing. (REASONS CONCLUDED)