A.L.L. v. B.W.G. Date:, 2012 BCPC 316

Citation: A.L.L. v. B.W.G. Date: 20120712 2012 BCPC 0316 File No: 07-1665 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: A.L.L. APPLICANT AND: B.W.G. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Applicant: J. Robinson

Counsel for the Respondent: D. Fairweather Place of Hearing: Sechelt , B.C. Dates of Hearing: June 4, 27, 2012 Date of Judgment: July 12, 2012 [ 1 ] These reasons relate to an Application filed by Mother on February 17 th , 2011. At the hearing before me both parents were represented by counsel. Mother asks the Court to grant her sole custody and guardianship and for permission to relocate with the child to Victoria from the Sunshine Coast. Father is opposed.

He wishes to continue to share joint custody and residence and to now share joint guardianship. [ 2 ] Mother and Father married in 2001 and separated in 2007. There is one child, TMG, born [DOB] who has just turned six and was in kindergarten over the past school year. Until September of 2012, Father and Mother shared joint custody and primary residence pursuant to a Consent Order made in August of 2007. The child spent at least three or four nights a week at her Father’s home. [ 3 ] Mother moved to Vancouver after separation.

She and Father exchanged the child at the Ferry each week and more or less spent equal time with her. Mother returned to the Sunshine Coast in 2010 with her then partner and now husband. They have a new baby named K. born [DOB]. [ 4 ] This Application was heard on August 9 th , 2011 before my brother Judge Merrick. The parties were self represented. At the end of the day Judge Merrick declined to make any final orders. Rather, he treated the matter as an interim hearing.

The Order as drafted says on its face that it is a Final Order but that is an error according to the transcript. [ 5 ] At that time the pressing issue arose from the fact that the child was to start school in the fall and Mother said it was not practical for the child to reside with Father during the week as he resides in Davis Bay and Mother’s home is in Halfmoon Bay. The school in Halfmoon Bay is minutes from Mother’s home and she was not working over the school year.

At that time, and although Father had enrolled the child in school in Davis Bay and wanted her to attend there, Father said he agreed that the child would be better off being in only one residence during the week when she was attending school. Father takes a different view now.

He testified that it is a short drive to Halfmoon Bay (just under 15 km according to Google Maps) and says his child should be with him for equal time as she had been up until last fall. [ 6 ] Judge Merrick ordered that the child’s primary residence would be with Mother and Father would have reasonable and generous access including a three week rotating

schedule where he would have her for a Friday overnight one weekend, Friday and Saturday overnight the next and then miss a weekend. Judge Merrick also stated that Father should have a mid week visit each week but that was not included in the Order. [ 7 ] During the hearing before Judge Merrick Mother said she and her husband did not want to move to Victoria before the baby was born and that any move would occur in 2012. She and her husband now wish to move to Victoria for the start of school in September 2012. [ 8 ] A

Section 15 Report including a “Views of the Child” component was ordered and the matter was adjourned. [ 9 ] Upon a review on January 12 th , 2012 Father’s access was increased to every other weekend from Friday night after school to Sunday evenings and the Wednesday overnight was added. Mother had not been allowing him the mid week access as had been discussed in Court. [ 10 ] The

Section 15 Report was filed on April 11 th , 2012. It is not particulary thorough but is nevertheless helpful as it establishes that the child is flourishing in her current circumstances. It says that the child is equally happy in both homes and with all caregivers. She is bonded with both parents. She is close to her paternal grandmother who lives on the same property as her father. She loves her new baby sister and cares for her. She is active in sports.

She is doing well in school and is described in glowing terms by her kindergarten teacher. [ 11 ] The parents each testified about various concerns they have about the others use of alcohol or marijuana, however neither has any current information and there is nothing in the evidence to cause any concern. Both have complaints about how the other parent deals with the child. Most of the information on which they rely in this regard comes from the child.

None of these concerns are significant. [ 12 ] It goes without saying but neither parent should allow the child to consume pop and candy or junk food; both should ensure that she is only exposed to age appropriate music or movies or videos; both should make sure she goes to bed on time. Mother says that the child now has cavities, however for the past year the child has been primarily in her care and as such it would appear both parents need to pay better attention to her dental hygiene. The child should be bathed regularly and should wear clean clothes.

What is most important is that both parents need to recognize that neither of them is perfect and there will always be times and circumstances where their care of the child is less that what they themselves might desire. [ 13 ] There have also been some intemperate comments made by Father but the only email produced was from the day after the hearing before Judge Merrick. Mother said she does not use profanity only to be met with a text in which she does use profanity. Both parents need to be respectful, considerate and co-operative with each other if they want their daughter to have a happy and well adjusted

childhood and to be emotionally healthy. [ 14 ] I accept Fathers evidence that since last September, Mother has not been living up to the spirit of the term providing him with reasonable and generous access. He has had only the access specified in each Order and has not been able to see the child otherwise. In my view, Mother trivialized the importance of the child’s relationship with her father in evidence and I am not confident she would ensure the child’s relationship with Father would be fostered if she were to move to Vancouver Island. Her proposed access

schedule would reduce the child’s contact with her father to three nights per month. Despite this drastic reduction in contact with him on a day to day basis, Mother proposes that all holidays be split except for spring break. [ 15 ] The primary reason advanced for the move to Victoria is to better the employment prospects of the child’s stepfather. He has a Commerce Degree and has been unable to secure suitable employment on the Sunshine Coast. He is currently working as a courier driver.

However, he has not yet secured employment in Victoria and to date has had only had one telephone interview. [ 16 ] Mother is currently not employed outside the home. She has her real estate license, an accounting diploma and is a fitness trainer. She said she has considered becoming a nurse. Her future employment prospects do not appear to have played a

part in the decision to relocate. [ 17 ] There is no evidence that after moving to the Sunshine Coast, and not finding suitable employment as he expected he would, Mother’s husband has attempted to find employment in the Vancouver area which would allow him to commute and/or work from home. There is no evidence that his employment prospects in Victoria are any better that they have been on the Sunshine Coast other than his opinion.

He says he has not actually applied for any jobs in Victoria because he did not want to be offered employment only to have to later quit if the Application for sole custody and guardianship is not successful. [ 18 ] Mother and her partner both spoke about being in tight financial circumstances. They will not be able to afford to pay for the increased costs of access which will arise if they are permitted to move to Victoria. They suggest that Father should bear half those costs.

A trip from Victoria to the Sunshine Coast on the ferries would involve driving from Victoria to Nanaimo, crossing to Horseshoe Bay and then taking a second Ferry to Gibsons and would take five to six hours each way and would involve the cost of both ferries and gas. The child can fly as an unaccompanied minor from Nanaimo Harbour to Porpoise Bay which would involve two and a half hours each way and would cost $70.00 return in airfare plus gas. [ 19 ] There is no evidence before me about how the Mother and her husband would be able to manage the proposed move financially. They own a home in Halfmoon Bay.

I do not know how they intend to meet their living expenses in Victoria until such time as they sell their home and stepfather finds employment. There is no evidence about where they would live in Victoria and whether they will be able to find affordable housing. [ 20 ] It was argued that Father failed to pay maintenance over the past months while mother had primary residence however neither did Mother request that child support be paid.

I am not clear on what weight could or should be given to this factor in the circumstances of this case. [ 21 ] Both Mother and her partner testified that they have not taken any steps to address the practical aspects of relocation because they did not know if they would be permitted to move. However, the Court must consider whether the disruption such a move would cause to the child’s relationship with her father can be justified as being in the long term best interests of the child. [ 22 ] Father has been a life long resident on the Coast.

He has worked steadily on the Coast as an employee of a roofing company since 1990. He now has his own business as a roofer and all his contacts are on the Coast. [ 23 ] The child’s paternal grandparents reside on the Sunshine Coast and the child is bonded with her Grandmother. The child’s maternal grandparents are in Powell River. Mother says that her sister and parents are planning on moving to Victoria but have yet to do so. There is no evidence as to the child’s bond with Mother’s sister except that Mother resided with her sister for five months when the child was around 12 to 18 months of age.

At this time only stepfather’s family is in Victoria. On the evidence before me I conclude that the child does not share any particular bond with her stepfather’s family as there has been only one visit there in the past year. [ 24 ] In Gordon v . Goertz , [1996] 2 S.C.R. 2, at paragraphs 49 and 50 , the Court summarized the factors to be considered in an application to vary an Order for custody or access as follows: 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. 50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? [ 25 ] I have considered the authorities argued by counsel for Mother being S.S.L. v .

J.W.W. 2010 BCCA 55 , Hejzlar v . Mitchell- Hejzlar 2011 BCCA 230 and King v . King 2011 BCSC 781 . I have also considered

Section 69 of the proposed new Family Law Act and the factors set out therein. There are no presumptions in such applications. The Court must consider the overall best interests of the child. I must balance all of the factors impacting the best interests of the child as set out in

Section 24 of the Family Relations Act . The Court must also give consideration to the right of a parent to live and work where they choose. [ 26 ] In this matter Mother has applied to change a final Order which provides for joint custody and shared primary residence. She must first meet the threshold test of establishing a material change in circumstances affecting the child and argues her husband’s greater opportunities for employment in Victoria as that change in circumstance.

Although a more positive employment situation for Mother’s husband would be advantageous to the child in the long term, that situation does not currently exist and it has not been shown that it would be more likely than not to come to fruition. To the contrary, I find it is just as likely that if the move were allowed, she and her husband will have uprooted the child and significantly impacted her relationship with her father only to find themselves in the same position they are in at the present time. [ 27 ] At this time Mother and her husband’s plans are amorphous and speculative.

I am unable to find on all the evidence before me that their plans to relocate are even well considered. I am thus unable to find that Mother has established a material change in circumstances. [ 28 ] Even if I am wrong on the threshold issue, I cannot find on all the evidence that the proposed move is in the best interests of the child. I cannot consider granting an Order giving Mother primary residence in Victoria as I do not have sufficient evidence to determine how that would meet the child’s needs. It would mean that the child would spend more time with her half sister.

However, it would mean that the child’s relationship with her Father and Grandmother would be significantly limited and I find those relationships to be very important to her. Father is not asking that the child reside with him on the Coast and that option was not addressed in evidence. A

suggestion was made that Father could move to Victoria to co-parent but he took the position that he could not do that as he has just started a business and all his contacts are on the Coast.

I agree that it would not be practical for him to move at this time. [ 29 ] I am able to find that the child is thriving in her current situation being co-parented on the Coast and in contact with her Grandmother and now paternal Grandfather and in close proximity to her maternal grandparents. [ 30 ] I find I must dismiss Mother’s Application for sole custody, sole guardianship and for permission to relocate to Victoria. [ 31 ] This Order is a Final Order. The parents will continue to share joint custody.

They will also shared guardianship following the Joyce Model providing that each parent has equal responsibility to advise the other of any significant issues concerning the child and must discuss these matters to try to reach an agreement and that they have an equal say in any decisions made and either may seek a review in Court. All of the other terms in the Joyce Model shall be included. [ 32 ] I find that the residence of the child shall be shared jointly by the parents and that the child shall reside with Father a minimum of 14 days per month. I will leave it to the parties to attempt to come to a

schedule of weekly access and holiday access. I grant leave to apply to the Court for directions should they be unable to agree. If the parents are unable to agree on holiday time for the summer of 2012, I Order that both parents are entitled to one period of up to ten days of uninterrupted access between now and the start of school in September. [ 33 ] Neither party shall speak in derogatory terms about the other parent or any member of their immediate family.

When communicating with each other the parents must not use profanity or call the other parent names. [ 34 ] Mother shall not discuss relocating her residence away from the Sunshine Coast with the Child until such time as she has received permission of the Court to do so. _______________________________ The Honourable Judge J. Challenger Provincial Court of British Columbia