B.K. v. K.R. Date:, 2012 BCPC 206

Citation: B.K. v. K.R. Date: 20120430 2012 BCPC 0206 File No: 10-24147 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: B.K. APPLICANT AND: K.R. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE H.K. DHILLON Counsel for the Applicant: Sebastian Nejat

Counsel for the Respondent: Carla Lewis Place of Hearing: Vancouver, B.C. Dates of Hearing: February 7, 8, 9, April 10, 11, 2012 Date of Judgment: April 30, 2012 Introduction [1] This family law proceeding relates to what parenting arrangements are in the best interests of the child K.K.R. (“the child”),born [DOB] and now age 13. [2] The parents advance competing claims of custody. The applicant father B.K. seeks an order of joint custody, guardianship,access, and non-removal of the child from the Metro Vancouver area.

The respondent mother K.R. seeks sole custody, jointguardianship, child support and permission to move to Kingston Ontario with the child. [3] There are no pre-existing court orders, making this an initial court application of the parents concerning the child. The Legal Framework [4] Before turning to the evidence and findings of fact, I propose to set out the relevant legal principles. [5]

Section 24 of the Family Relations Act, R.S.B.C. 1996 c. 128, [F.R.A.] provides the legislative framework for determiningcompeting parental claims of custody and guardianship of a child. The relevant provisions are as follows: 24(1) When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests of thechild and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child's needsand circumstances:

a) the health and emotional well being of the child including any special needs for care and treatment;

b) if appropriate, the views of the child;

c) the love, affection and similar ties that exist between the child and other persons;

d) education and training for the child;

e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise thoserights and duties adequately. [6] Additionally, because the mother’s application discloses her desire to move with the child from Vancouver, BritishColumbia to Kingston, Ontario to live with her elderly parents, a number of further considerations must be addressed within the contextof what orders are in the best interests of the child. [7] Parental mobility applications has been well traversed in recent leading appellate authorities, including the following:Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27 [Gordon], Nunweiler v. Nunweiler, 2000 BCCA 300 , [2000]B.C.J. No. 935 (C.A.) [Nunweiler]; Falvai v. Falvai 2008 BCCA 2003 [Falvai]; S.S.L. v. J.W.W., 2010 BCCA 55 [S.S.L.]; Hejzlar v.Mitchell-Hejzlar 2011 BCCA 230 [Hejzlar]; R.E.Q. v. G.J.K. 2012 BCCA 146 and Stav v Stav 2012 BCCA 154. [8] A number of key factors can be distilled from these cases insofar as they are germane to an initial claim of custody that alsoadvances a parental mobility issue: 1.

In custody cases that involve a mobility issue, the court should take a blended approach, balancing all relevant factors including theproposed move of the child to a new community, to decide what orders would be in the best interests of the child. 2. The focus of the inquiry is on the best interests of the child, not the interests and rights of the parents. 3. The views of the parent seeking to relocate are to be respected. Mobility restrictions should not be imposed unless there is cogentevidence that to do so would serve the best interests of the child. 4.

More particularly the judge should consider, inter alia:

a) the existing parenting arrangements and the relationship between the child and each parent;

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

c) the views of the child;

d) whether there is an improper purpose in moving -- absent an improper motive, the parent's reasons for moving are not relevant, except only in the exceptional case where the proposed move is relevant to that parent's ability to meet the needs of the child;

e) disruption to the child of a change in custody; and

f) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

Summary of the Evidence [ 9 ] The father is in his late 50’s and is employed with a public transit company. The mother is in her late 40’s and a registered psychologist. She is on medical leave from her employment with an agency serving at risk youth because of her depression and stress. [ 10 ] The mother moved to British Columbia from Ontario in 1992 to pursue an internship in psychology. The father was raised in the prairie provinces and has lived in British Columbia for around 30 years. He is a gifted musician and made a living performing music before turning to other work opportunities.

They met in around the late 1990s and started a casual relationship. [ 11 ] The court heard a great deal of evidence about the early years of their relationship which, in

summary, is that it was not fully anchored for any appreciable period of time in an unequivocal commitment. The father had made clear when beginning the relationship that he was not looking to settle down. They lived together in a communally shared home. The mother’s unexpected pregnancy led to some difficult early exchanges followed by an eventual acceptance by the father to impending parenthood.

They continued in a co- habiting arrangement as the pregnancy progressed. [ 12 ] The evidence supports the conclusion that both parents initially supported an “attachment style” of parenting in which the child is physically held the majority of the time with the objective of emotionally connecting and bonding the child to the parents to promote his secure and healthy development. All three shared a communal “family bed” with the child sleeping with his parents in infancy.

This pattern continued after the father left the family bed, with the mother co-sleeping with the child until August 2011. [ 13 ] The mother and father were jointly involved in parenting in the early years of infancy but the mother assumed greater responsibility for the child’s needs, and was the de facto primary caregiver. The father was an involved parent and contributed to childcare in greater measure when the mother returned to work.

They continued to share a residence, at times cooperatively but increasingly in an uneasy alliance, until the relationship became unsustainable. [ 14 ] The parents separated in around 2004 around the time the child started kindergarten. It is not useful to review their interpersonal difficulties except as they may relate to the best interests of the child.

For the most part, the areas of difficulty have largely been because of their incompatibility, financial issues, and disagreement over differing parenting styles. [ 15 ] Even though no longer a couple, the parents recognized they had a responsibility to love, nurture, care for and support their son to the best of their individual abilities. However, after the parents’ separation, the mother assumed almost all of the duties of caring for and raising the child. The child lived with her and she was the overseer and provider of his emotional and physical needs.

The father was an involved access parent, but a barrier to his taking a greater role in the child’s life was the fact that the child was sharing the mother’s bed as he had done from birth, making overnight access difficult. As the child grew older, it became difficult to wean him away from his reliance on sleeping in the same bed as his mother.

Attempts to change his sleeping routine became a source of anxiety for the child and this discouraged the mother from pursuing any change in his sleeping arrangements until very recently. [ 16 ] The father says the sleep issue has been a barrier to the child’s independence and development. He says the mother did not take proactive steps to deal with this issue until after family litigation was launched.

She then sought professional advice to assist the child to transition to sleeping independently of her, which objective was achieved in short order with encouragement and judicious short term use of sleep medication by the child. The mother reports that the child is now sleeping in his own bedroom and enjoys it. [ 17 ] The father says the child’s inability to sleep apart from his mother has precluded him from more involved parenting. It has also restricted the child from enjoying normal boyhood activities such as joining boy scouts in which he was interested until he found out that overnight camping was involved.

He has not participated in sleepover parties, going home to sleep at bedtime. The father says that it now appears the lack of exposure to being away overnights from home may be a barrier to programming choices in high school where camping or other trips away are generally a part of the curricula. [ 18 ] Adding to the complexity of parenting issues is that the child is exceptionally bright but suffers from an anxiety disorder that requires careful management and handling.

The mother notes that the child has always been on the anxious side, and when he has problems or insecurities his anxiety becomes much more pronounced. [ 19 ] About two years ago the child was referred to the Anxiety Disorders Clinic at B.C. Children’s Hospital for assessment and recommendations for treatment. He was enrolled in group therapy for a period of time, and took counselling. Presently he takes 10 mg of Prozac daily, which the mother feels is beneficial for child in that it has reduced his fears and panic attacks. [ 20 ] Sleeping away from home is still an anxiety producing issue for the child.

The mother says that the child is not comfortable with the idea of sleeping over at his father’s home but he has not been able to tell him so. [ 21 ] The father hopes to be admitted into co-operative housing where he will have a two-bedroom residence and with graduated steps including therapy he will encourage the child to have an overnight visit.

[ 22 ] As for the child’s relationship with his parents, the mother says the two of them have a good and balanced mother/son relationship. He trusts her and tells her of his concerns and discomforts, and the two are doing well together.

She also agrees that the child is close to his father and accepts that it is important that he continue to have regular contact and maintain a strong bond with his father. [ 23 ] She says he is at present getting along very well with his father but there have been bouts of anxiety because the father is more inflexible than she is and more insistent that the child follow structure and routine. [ 24 ] The mother states that generally speaking the father’s access has gone well and when the child wishes to overstay his access hours, she has not objected.

In her experience, the father is rigid about maintaining his access

schedule which impacts adversely on the child because it is stressful for him to broach the subject of a change of visitation with the father if an opportunity for an activity or play date arises on the father’s access time. [ 25 ] The father states that while he is protective of the little access time he does have, he has not stood in the way of opportunities for the child when he is consulted in a timely and appropriate fashion. [ 26 ] On reviewing the court exhibits, including emails between the parties, I am satisfied that the parents generally have been able to work through their differences in order to support the child’s interests, even when the process itself has been difficult for them.

However, it does appear that when the child senses difficulties between the parents, he tends to withdraw from the father and avoids having to see him. [ 27 ] Two examples will suffice. [ 28 ] In the summer of 2009 a schism occurred when the child did not want to see his father. He thought that the father was angry with him because he had his mother register him for baseball when the father had already discussed these plans with him.

The mother explained that the child was anxious about baseball and she took the opportunity to register him at a moment when he was agreeable even though baseball would impact on some of the father’s access time. The father expressed his anger on the phone over the process of registration to the mother, but not the fact that the child was enrolled in baseball of which he was supportive. The child discerned that this was a source of conflict between the parents because of the father’s response to the mother and he refused to see his father.

It took about a month for the father to reconnect with the child and to resume access. [ 29 ] The second break occurred in the fall of 2010, when the subject of the child and mother moving to Kingston, Ontario was raised and made public. The child became anxious anticipating his father’s response and would not see him. It took a collaborative approach of therapy and counselling to gradually reintegrate the child into the father’s life.

This was a period of great sadness for the father and one that he worked hard to address. [ 30 ] The father’s evidence is that he has never relinquished his parental rights, and has been an active and present parent in his son’s life. He admits he has deferred to the mother in parenting decisions to reduce interpersonal conflicts between them. He felt she was better qualified by her education and expertise as a psychologist to research educational options and to generally make the day-to- day decisions about the child.

He admits that he may not have given her the due she deserves for raising their child, a son he described as the most precious thing in his life. [ 31 ] He describes his son as a charming and very congenial boy, a gentle loving child who can be a bit sedentary and solitary.

He testified to the emotional pain and loss he felt when his access was suspended between September 2010 and December 2010 due to the child not wishing to see him because of his anxiety about the father learning of the planned move to Kingston. [ 32 ] The father said that it took time and delicate manoeuvring to restore the father child relationship. Step by step they rebuilt their level of trust. The mother encouraged their rapprochement and their access evolved slowly, gradually and continuously and by January 2011 they were back to their usual time together.

The father says that their relationship is tighter and better than ever before and although they are not free and clear of all impediments their relationship is very good . [ 33 ] He described their bond as “closer and vulnerable than we have ever been” and that he can both “challenge him and annoy him” by being insistent that his son do things such as exercise, helping him in the kitchen, or doing his homework when perhaps he would rather not.

The father says theirs is a rich, vital, complex and deeply loving relationship which includes physical play, and activities such as playing guitars, walks, music, science, discussing politics or philosophy, or attending his medieval martial arts. [ 34 ] The father says he is becoming more involved in his son’s education, from monitoring schoolwork to meeting with teachers and his guidance counsellor. He is concerned by a high number of absences from school this year, the reasons for which are not clear.

He does not believe that the child is living up to his full potential, and appears to be withdrawing socially and from school. [ 35 ] He is concerned about which enriched secondary school program his son will attend next year. He agrees that he and the mother have parented as two solitudes, and they have not been particularly involved in making joint decisions about their son’s future schooling. Historically, the mother has made such decisions and passed along any pertinent information to the father. [ 36 ] The father admits that the parents’ communication has been strained.

He has come to the realization that for the good of their child, they need to discuss important matters affecting their child without demeaning or diminishing the other. At present, they communicate about parenting issues predominantly by email. He would like to engage with the mother in family therapy to learn appropriate ways for them to communicate for purposes of parenting. He also agrees there are obstacles to joint parenting but they are not insoluble if parents agree to some form of therapy or counselling.

The father agrees that he needs to be more respectful and appreciative of the burdens the mother has undertaken in raising their child. [ 37 ] The mother has faced financial pressures as a single parent. The father admits that he was late starting to pay child support, but he has been meeting his basic support obligations consistently for a number of years. He has not provided his share of the child’s reasonable and necessary special and extraordinary expenses and is willing to do so for orthodontia, and for other such expenses the

parties can agree on in advance. [ 38 ] Lastly, the father opposes the child’s move to Kingston. He says he will lose meaningful contact with his son given the complex issues his son is struggling with which makes overnights away from his mother difficult even in the same town.

The likelihood of the child visiting and staying with him is low, and using technology to stay connected is a poor parenting substitute given the personality and psychological make-up of his son. [ 39 ] Now in his late 50s, the father fears it is risky for him to give up his steady employment as a transit operator in Vancouver to relocate to a community to which he has no connection in the hopes of finding comparable employment. He believes that the move will severely erode if not sever the father-child bond.

He does not believe that travelling to Kingston several times a year to visit with his son is economically feasible for either parent to fund and not comparable to the long-standing weekly access the child has enjoyed with him. [ 40 ] The mother wishes to relocate to Kingston, Ontario because her life circumstances have made that an attractive and necessary consideration. Until two years ago, she was working with youth at risk in a community mental health services organization. She diagnosed and developed treatment plans for homeless youth to help stabilize them.

For the past two years she has been on long-term disability from her employment because she suffers from anxiety and depression. She feels worn out due to the demands of her job, the demands of parenting a child on a modest income, and she feels generally fatigued and unwell. Her illness is exacerbated by financial pressures caused by her reduced income in the form of disability benefits, which amount to about $40,000 a year not taking into account monthly child support of $545. With support payments, she has a total annual income of about $46,540.

The father earns about $60,000 annually. [ 41 ] The mother sees a psychiatrist every second week and takes medications including anti-depressants. She feels that she is improving and if she is not able to move to Kingston she has her original position to go back to. [ 42 ] The primary factor that compels the mother to consider a move to Kingston is that her parents live there and they are aging. They desire her to return, and she wishes to do so.

Her brothers and their teen and young adult children live within a two hour driving distance of Kingston and her family has been and will continue to be a source of emotional and financial support for her. More importantly, they will provide a family connection for the child which he will have the rest of his life. The child has visited them, and they in return, and he appears to get along well with his Ontario extended family. [ 43 ] The secondary factor is that the mother’s parents have offered her support in the purchase of a house in Kingston.

Her parents are prepared to sell their Kingston condominium and make a substantial down payment, in the order of $100,000, on a house costing up to $340,000 which they would register jointly in the mother’s name and in which all would live as an extended family. The mother will pay the mortgage with her earnings. The plan is that the property will have separate living space, such as a basement suite, to afford privacy for the mother and child. [ 44 ] The cost of living there is not as high as in Vancouver which is favourable.

The mother believes the combination of family support and reduced cost of living will ease some of the financial stress she has been facing and allow her to recover and re-establish herself in the work force in Kingston. [ 45 ] As for employment prospects, the mother has sent in two applications in response to job postings in Kingston but has not received an offer of an interview. She states she has university friends in the area who she believes will help connect her to employment opportunities.

She agrees however that it is speculative whether she will find suitable employment, but believes she will. [ 46 ] The mother has researched schools and medical services for the child and believes he can be equally well educated and cared for in Kingston. [ 47 ] She agrees that a move away from Vancouver to Kingston will not make the child closer to his father but she hopes that arrangements to Skype or telephone will keep them connected between visits.

She concedes there is a possibility that the child will grow distant from his father. [ 48 ] The mother’s father B.R. confirmed the offer and availability of financial support. The mother’s parents are each in their early 70’s and the family is closely connected. They keep up ties with visits, cards, the internet and phone calls. The mother has faced financial hardship in Vancouver and has been supported by her parents who have contributed to rent, food and clothing, dental costs for the child and his recreational activities.

They believe the solution of a shared home in Kingston will ease the burdens on the mother and provide her and the child with the security of home ownership which is not available in Vancouver. Opinion Evidence [ 49 ] The court heard from Dr. Allan Posthuma who interviewed the parents and the child. It was his conclusion after a comprehensive consideration of the personalities and attributes of the parents and the needs of the child that the interests of the child are best served with him residing in Vancouver under a joint custody and joint guardianship order.

He recommended professional assistance to help the parents reach parenting accommodation, and urged them to work to gradually transition the child into having some overnight access with his father. [ 50 ] The mother challenged Dr. Posthuma’s methodology and conclusions. I am satisfied that Dr. Posthuma provided a credible explanation for the amount of time he allocated between the parties, and the rationale behind his interview techniques.

He explained he is interested in obtaining an information-laden narrative and it is not his role to challenge or cross-examine a subject with the objective of making credibility assessments. I accept his conclusions and recommendations. [ 51 ] Family Justice Counsellor Karen Fenton provided a report to the court which is consistent in the result with Dr. Posthuma’s recommendations. Both of them recommend that the child maintain his primary residence in Vancouver under joint custody and joint guardianship.

Analysis of the Evidence and Findings [ 52 ] I have considered the evidence in these proceedings, the applicable legal principles referred to earlier in these reasons, and the submissions of the parties. The focus of the court is on what parenting arrangements are in the best interests of the child. [ 53 ] In determining the issue of the best interests of child in evaluating parenting options under a mobility claim, the law requires an “in the round” analysis of the various options: see Hejzlar citing SSL . In SSL , Justice Huddart said at para. 32: ...

Far more significant is the role each parent has played in the children's lives; which parent has taken primary responsibility for their health, safety, education and overall welfare; which parent deals with the mundane but necessary arrangements of their lives - clothing, haircuts, extracurricular activities, gifts for friends, doctors' and dentists' appointments, contact with their extended family; and which parent has the best perception of the emotional needs of the children. In sum, what it is that each parent contributes to the children, as care-giver.

Only when those contributions are made clear will an understanding be reached as to what arrangements will work best for the children going forward. The analysis of the parent's role is fundamental to the determination of a primary care-giver, whether continued shared parenting is in the children's best interests, and where they should live. [At para. 32.] [ 54 ] On considering the evidence as a whole I am satisfied that each parent tried to provide a comprehensive picture to the court, from their experience and perspective.

On the evidence, I am satisfied that the mother has been the primary care parent for the child for many years. The child lives with and is closely bonded to her, and they appear to have a high level of communication and trust. He has lived with her since birth, and she has provided for his day to day care and support. The mother has researched which educational and summer activities would meet the child’s needs, dealt with changes in schools, and managed the majority of his medical and dental care appointments.

Apart from dealing more proactively and sooner with the co-sleeping issue, she has generally placed the child’s best interests at the forefront, and has struggled financially to support both of them. [ 55 ] The child also has a valued relationship with his father developing from infancy and through a period the father was unemployed and effectively an at-home parent. The father plays an important role in the child’s life and they share common interests. The father has been involved in a committed and regular pattern of parenting the child after-school two days a week, and all day on Saturdays.

They have maintained this ongoing regular contact, except for two periods of interruption, one in 2009 and the other in 2010, after which the two were reintegrated. [ 56 ] The conclusions that I draw from how the parents dealt with this parenting interruption is that the mother and father both recognized the importance of reconciling and reintegrating the child with the father, although they disagreed about the process to be followed. The mother was encouraging but wanted the child to have a greater say in when he was ready to see his father.

The father went to a variety of means including therapy to reassure his son and successfully reconnected with him. The fact that the father did not give up on the impasse supports the importance of the parenting relationship in his mind. It also illustrates how fragile the parental bond is within the context of the child’s anxiety disorder and his conflict avoidance behaviours. Child’s health and Emotional Well Being [ 57 ] The child’s health and emotional well being are inextricably linked to his personality and the challenges caused by his anxiety disorder.

His fears, panic attacks and desire to withdraw from difficult situations will continue to be an aspect of his personality regardless of where he lives. [ 58 ] I am satisfied that the majority of the special needs for care and treatment have largely fallen to the mother on a day to day basis, with the father in a less involved role due to his deferring to the mother’s decision-making role. The child has established medical and therapeutic connections here, both through B.C. Children’s Hospital and his family doctor.

His physicians have made treatment recommendations after the mother has sought their expertise and assistance in resolving the child’s medical and psychological issues. I have no doubt that the mother will seek to implement a similar care regime should the child live in Ontario with her, but the breadth or depth of the therapeutic resources there are presently unknown.

There is value to continuity of care that would be available to the child should he continue to remain in Vancouver. [ 59 ] The child is now considered overweight for his age (13) and both parents recognize that this problem needs to be proactively managed. Like many children, he is more interested in computer related activities. He is more likely to be active in outdoor endeavours with the encouragement of his father who is more insistent they take place and who joins in such activities where appropriate. Education and Training [ 60 ] The child is at a natural cross-roads in his education and training.

He will be attending secondary school in B.C. or similar institutions in Ontario. In either case, a new school is in the offing. [ 61 ] The mother has explored specialized secondary school programs for gifted children in Vancouver and has solicited the child’s preferences. There is no question but that his transition to secondary school, whether in Vancouver or in Kingston, will have to be carefully and gently managed because it will be a new and challenging environment for the child.

The mother will have the benefit of the father’s presence and assistance in Vancouver to deal with the transitional issues, provided they work cooperatively to that end. With

respect, if the mother is in Kingston, I do not expect that the grandparents will be able to offset what the father may be able to provide the child in this regard in liaising with teachers and principals. Extended Family Ties [ 62 ] There are strong bonds of love and affection between the child and each of his parents. There is no close extended family for either parent in British Columbia. The father has a nephew in the lower mainland but those ties are not deep. The mother retains her strongest and closest family connections in Ontario, both Kingston and Ottawa.

She has encouraged theses important family contacts for the child through annual visits, email and correspondence. The Child’s Views [ 63 ] The child’s views are that he wants to live with his mother, and at one time was seen to be interested in moving to Kingston with her. More recently, he has not disclosed his preference, again resisting being drawn into the parental dispute. He does not want to be invested in any particular outcome, according to the mother.

If the mother does not move to Kingston, he would prefer to maintain the current parenting arrangement of living with the mother and having regular access with the father. [ 64 ] I am satisfied on the evidence that the child appears more comfortable with the mother than the father, and is reticent about sharing his feelings about issues or concerns fully with his father. He does have a measurable relationship with his father but it is liable to be sidetracked when the child perceives difficulties or differences. He prefers spending more time with his mother for reasons of comfort and trust.

The Desirability of Maximizing Contact [ 65 ] The desirability of maximizing contact between the child and both parents is a valued objective but it is not an absolute rule. The question is whether the child’s interests are better served under primary residency or custody to one parent, even at the cost of loss or reduction of beneficial contact with the other parent. [ 66 ] I have no doubt that the loss to the child of his mother’s constant companionship and support would be devastating if she were not to be involved in his day to day parenting.

Hence, any scenario contemplating her living any measurable geographic distance apart from the child is not in his best interests. [ 67 ] On the other hand, the move of the child to Ontario with the mother will come at a significant cost to the child/father bond. It will mean not merely diminution of time between the two but a real risk of complete cessation of personal face to face contact between them.

Putting aside the economic considerations, noting that neither parent is of significant means, I find that it is unrealistic to contemplate that a child who has never slept at his father’s home while living in the same city will travel across the country to visit his father without adverse consequences. He will be reluctant to do so on his own, or his mother will have to build in the cost of coming with him even though most 13 or 14 year olds would not require such assistance.

Even with the mother’s best intentions to make cross- Canada access work, the loss of parenting by the father is not a remote thing but very likely and in my view would be quite detrimental to the child’s best interests. [ 68 ] Moreover, as noted by Dr. Posthuma, the risk of loss of contact will come at an important juncture in the child’s life as he enters adolescence. This is precisely the time that it would be beneficial for the child to maintain and augment his relationship with his father.

It is unrealistic to expect that uncles and cousins in Ontario who may visit on some weekends or on special occasions would be able to fill in for the father’s absence. [ 69 ] The mother is free to make mobility decisions to advance her interests and thereby to advance the interests of the child. In the particular circumstances where both the mother and the child have experienced anxiety issues, with the mother on stress leave, the impact of the move must be considered from a child-centered view. [ 70 ] In that regard, Dr.

Posthuma cautioned that uprooting oneself generally causes significant stress, and the changes contemplated in residence, community, and employment by the mother are capable of generating a fair amount of additional stress on top of the present depressive illness and related mental health issues she is experiencing. No evidence was led from the mother’s psychiatrist as to the impact on her health or her prognosis should she move to Kingston.

The stresses of co-parenting may be lessened but other stresses will undoubtedly arise, including the burdens of being a single parent caring for a child and at the same time the inevitable obligation to care for elderly parents. [ 71 ] In this situation, in my view it best serves the child’s interest to have a meaningful connection with his father maintained and strengthened because of the mother’s own health concerns.

The best parenting arrangement is one that will maintain the father’s bond with the child because, should the mother’s health or well-being decline for any reason, it will leave the child secure in the knowledge that there is another parent who has the capacity and the will to care for him. Breaking the bonds through a move will leave this child with his unique constellation of attributes more distant from the only other parent who has contributed to his care and well-being.

The Capacity of Each Parent [ 72 ] Each parent has a parenting style suited to their personality and skill set, and they together have managed to find a way to

complement their parenting styles. I have summarized in detail the parenting history and it shows that each parent has the capacity to make decisions with the child’s best interest in mind. I am persuaded that the mother is more closely aligned with the child and has by her close connection to him in every aspect of parenting the greater capacity to care for the child and to make decisions that are consultative of the child and of the father. [ 73 ] The capacity of the parents to communicate on a basic level through emails is evident but as I have noted they have been parenting in separate spheres.

Motive for the Move to Kingston [ 74 ] I do not find any improper motive in the mother’s desire to move to Kingston Ontario to be closer to her parents and to make a fresh start of her life. The mother’s life choices, including those of mobility, are to be afforded respect and her reasons for moving are not relevant unless they are directly correlated to the parent’s ability to meet the needs of the child. [ 75 ] The mother has submitted two reasons for the move which she submits relate to the best interests of the child.

One is the availability of extended family connections and the other is greater economic security. The case law suggests that where the evidence supports clear improvement in the economic prospects of the moving parent, this factor in the context of other positive child-centric factors for the move, will provide for a favorable outcome for the parent desiring to relocate. [ 76 ] The economic factors the mother cites need to be looked at in an objective fashion. The mother says she can afford to pay rent in Vancouver but cannot afford to buy a home and thereby provide long term security for the child.

With her parents’ financial support of a down payment on a house in Kingston to be jointly registered and lived in, with a mortgage to be paid by her from her employment income, the mother believes she will provide present-day stability in housing and build future security for the child. [ 77 ] The evidence is that her parents, the child’s grandparents, are on a modest, fixed retirement income. Even though the grandfather and grandmother have faced serious health problems such as cardiac surgery and arthritis, they are determined to provide support for their daughter and grandchild both morally and financially.

I accept they will provide the down payment, but they are not able to gift a house outright. [ 78 ] As I have noted, the support of extended family for the mother, and thus for the child is superior in Ontario. The mother might do better there from an economic point of view if her psychological condition ameliorates and she is able to find employment that suits her education and work experience. The availability of work is an imponderable at this time.

The mother has no firm offer of employment in Kingston and she agrees that her being able to secure employment there is speculative and dependent on her own health and the job market. Her ability to qualify for a mortgage jointly with her parents or to meet the expenses of home ownership depends on her financial viability.

The promise of a significant down payment, though laudable, can not be looked at in isolation of the entire economic picture that the relocation issue raises. [ 79 ] Nor can it be overlooked that the mother still has a job to return to in Vancouver once she is able to do so from a medical perspective. Failing that, she will remain on disability benefits for an unknown period of time.

This stream of income is of real substance and security for the child. [ 80 ] I am also satisfied that it is not in the child’s best interests to have the father move to Kingston because he will give up employment which is stable for him and he will lose his job security. The mother points to Kingston’s expanding transit grid as a potential source of employment for the father. In my view, the father’s age, nearing 60, is a relevant consideration as to whether he should leave stable employment in British Columbia.

His age will make him less marketable, and may offset the experience he brings, in securing a similar line of work in a new town. I accept the validity of the father’s need to secure his future as the end of his working life comes into view. His financial security is directly linked to his ability to provide for the child. [ 81 ] A change in residence and job are life choices the mother is entitled to make which the court ought not impugn or interfere with. Life decisions including mobility are entitled to deference.

However, where the economic consequences of the move are relevant to the mother’s ability to provide for the child, they must be capable of meeting the best interests of the child test. I am not satisfied that such is the case on the evidence. [ 82 ] I find that the case for moving to Kingston is strong from a family connection perspective but not as strong as believed from an economic perspective. Disruption to the Child [ 83 ] The child does not have strong friendships in Vancouver because of his own preferences.

He is described as sociable, but on the whole more solitary than a typical child. [ 84 ] He is on the cusp of changing schools which will be disruptive regardless of where he attends school. [ 85 ] The child fortunately has well established connections to physicians and therapists, and available continuity in his care for his anxiety disorder in Vancouver. This core medical and therapeutic support will be disrupted with any relocation. The child will need ongoing assistance in dealing with the consequences of his anxiety disorder.

Because his mother fully understands the child’s needs in this area, his relocation to a new town will not be necessarily insurmountable. He may be able to habituate to the changes and challenges in his future life with assistance through treatment or therapy. The father, however, will not be part of the support system, as he can be in Vancouver.

[ 86 ] The disruption to the parental bond with the father is one that I have already discussed in detail. Conclusion [ 87 ] I have considered the issue of parental responsibility in the context of the child’s relationship with his parents and his needs and circumstances. I have looked at the best interests of the child taking a “blended approach” to the various factors that must be considered in a custody and mobility case. [ 88 ] For the reasons set out above, I am satisfied that the central position of the mother in the child’s life must be maintained in any parenting arrangement this court orders.

This means that the only real options are to have the child live with the mother in Kingston or to have the child remain with the mother in Vancouver. The scenario of the father moving to Kingston is not realistic given his age and stage in life, particularly his need to keep his employment and seniority as he approaches age 60. An unemployed or underemployed father is not in the child’s best interests. The economic gains to the mother in Kingston offered through housing assistance by her parents are offset by the uncertainty of her employment prospects.

The benefits to the child of extended family connections can be maintained through planned visits to Kingston. [ 89 ] I further conclude that the best interests of the child require both his mother and father to be directly and personally involved in his daily life in order to support and sustain him intellectually, physically and emotionally.

This means that from a practical and informed perspective, the application of the mother to relocate to Kingston must be dismissed. [ 90 ] The mother has had de facto sole custody of the child in his youth, but this must yield to a gradual but greater parenting involvement of his father as the child’s adolescent years approach.

I am satisfied that an order of joint custody and joint guardianship with primary residence to the mother, and liberal and generous access to the father, will permit the mother to continue to provide the core of daily care and support that the child has become reliant on. [ 91 ] Under this order, it is vital that there not be a cataclysmic shift in parenting arrangements given the need of the child for stability and harmony in parenting. Therefore, the father’s parenting as a joint custodial parent must first start with the amount of access he presently enjoys as this is the child’s wish at this time.

Beyond that, any increase in access must be agreed upon by the parents through a respectful and collaborative approach either guided by family therapy, counselling, or as may be otherwise recommended by professionals who are involved in treating the child to ensure that the child’s anxiety is well managed.

One would hope that it will be a parenting objective, if not a therapeutic objective, to encourage and assist the child to feel secure with any planned graduated changes in access. [ 92 ] The order of joint guardianship will incorporate the Master Joyce provisions, with the mother having the final decision- making authority after having consulted with the father on important decisions affecting the child. [ 93 ] The father shall pay child support for the benefit of the child in accordance with his income under the Child Support Guidelines , fixed at $546 per month and adjusted annually, until the child is no longer entitled to support under the Family Relations Act or until further court order. [ 94 ] With respect to special and extraordinary expenses under the Child Support Guidelines , the father shall pay as his proportionate share 58% of the dental or orthodontic expenses not covered by the parties’ extended health care plans, and 58% of such other reasonable and necessary special and extraordinary expenses as may be agreed upon in advance of such expenditures by the parents. [ 95 ] I wish to conclude by noting the obvious, that the child will reach the age of legal majority in about 5 and a half years, and while he will always be their son, the window of opportunity for effective parenting is closing.

It is important to reiterate what parenting researchers have found: Nothing matters - not custody decisions, visiting arrangements, nor whether the child is a boy or a girl - as much as whether parents can minimize fighting. Over time, parental wars take a greater toll on a child's development than any other single factor in divorce. The most important of all the reasons why ongoing parental conflict hurts children so much is that it denies them permission to love both their parents. Quoted by Justice Pamela Kirkpatrick in A.J.L. v. L.B.L. [2001] B.C.J.

No. 2669 at para. 9 . [ 96 ] As the mother and father strive to give effect to the parenting arrangements ordered in these reasons for judgment , the spirit and intent behind the best interests of the child standard can not be met unless each is determined to minimize parental conflict. During their testimony, the mother and father professed that this was indeed their goal but the true test of their commitment to this will be reflected in the healthy development of their child. ____________________________________ The Honourable Judge H. K. Dhillon