M.H. v. A.M., 2018 BCPC 401

Citation: M.H. v. A.M. 2018 BCPC 401 Date: 20180823 File No. 107894 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: M.H. APPLICANT AND: A.M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. WYATT Counsel for the Applicant: W. Clarke Counsel for the Respondent: M. Newcombe Place of Hearing: Kelowna , B.C. Dates of Hearing: May 30, 31, June 1, 4, 5, 6, 7, July 25, 2018 Date of Judgment: August 23, 2018

[ 1 ] This matter came before me for trial from May 30-June 1, from June 4-7, and on July 25, 2018. Judgment was reserved. [ 2 ] There are two applications before the court. The first is M.H.’s application to relocate with the children, X, born September 28, 2011, and Y, born September 11, 2013 to [redacted for publication]. The other application is A.M.’s application seeking to have shared parenting time. [ 3 ] At the trial, I heard from the parties themselves, who were extensively examined and cross examined. I also heard from the following witnesses: J., A.M.’s father; D., A.M.’s mother; Mr.

S., the father of A.M.’s other child, A.; T., X’s grade one teacher; M., Y’s preschool teacher; M.G, A.M.’s pastor; J.F., a former counsellor for and support person to A.M.; and C., A.M.’s partner. [ 4 ] In addition to the witnesses, I had a

section 211 report that was prepared by Family Justice Services in May 2018. That report was filed with the court. The author was not called for the purposes of cross examination by either parent. ISSUES 1. Should M.H. be permitted to relocate with the children from Kelowna to [redacted for publication]? This application is pursuant to s. 69(4) of the Family Law Act . M.H. and A.M. do not share substantially equal parenting time with the children. M.H. has primary care of them, and A.M. has two eight hour visits with them on weekends. 2.

If M.H. is not permitted to relocate, what should the parenting arrangements be? Is it in the best interests of the children for their parents to share parenting time on an equal basis as A.M. proposes in her application, or for there to be any change at all to the existing parenting schedule? PARTIES’ POSITIONS [ 5 ] M.H. wants to move to [redacted for publication] for a number of reasons.

He is a status member of the [redacted for publication] band, and the children are eligible for that same status, which he says will provide them with various benefits. [Redacted for publication] is a small community, and many of its residents are relatives of M.H.’s. He says he is able to live with his cousin until he finds his own accommodation.

He has staked a piece of land, which is his status right, and he says he is able to get a grant to allow him to construct his own home, which he says will be with the assistance of other band members, with whom he anticipates he can barter services for building supplies. No date was given for when he expects to be able to build his own home, or to move into his own accommodation. [ 6 ] He testified that there are many former contacts of his in Kelowna, from his days when he lived a criminal lifestyle, with whom he chooses to no longer associate.

Since he moved back to Kelowna in the fall of 2016 to assume primary care of the children, which will be discussed in more detail later in these reasons, he has succeeded in distancing himself from negative associates, and has lead a clean lifestyle.

He does feel, however, that he has to minimize his social activities, even at places such as the gym, to avoid running into those types of people. [ 7 ] He prefers the laid back pace of [redacted for publication], and looks forward to the opportunities he expects his sons will have to learn their culture and to be raised in an environment where there is less conflict. He certainly has a personal interest in moving as well.

He and A.M. have been entrenched in high conflict litigation for some time, in addition to which he has been the subject of numerous complaints to the Ministry of Children and Family Development (MCFD), which he suspects were made by A.M. or her associates. As a result, he limits his social interactions and activities, as he is concerned that A.M. will take any opportunity to turn a situation against him. [ 8 ] A.M. is opposed to M.H.’s application to relocate.

She argues that if M.H. is permitted to relocate with the children, she will have a very limited role in the lives of the children, given the significant distance between the two communities, and given the parties’ limited financial situations. [ 9 ] In her own application, she seeks a shared custody arrangement, although during her lawyer’s closing submissions, she concedes that given her limited parenting time currently, she may need to look at something less than 50/50 parenting time. At the very least, she wants overnight parenting time.

She argues that she has taken many steps over the past year and a half to improve her parenting skills, to cope with her anxiety disorder, and to address addiction issues that challenged her in the past. She points to her relationship with

C., which she says is a loving and supportive one, and to his role as a stepfather to the boys. [ 10 ] Although in her evidence she expressed concerns about M.H.’s ability to parent the boys at all, and insisted he needs a lot of work before he can be a good parent, A.M. is not seeking to have primary care of the children. [ 11 ] M.H. is opposed to her application. If he is not permitted to move, he is opposed to any increase in her parenting time.

He argues that her very recent relapse with cocaine use, her nine day admission in May 2018 into the psychiatric unit at [redacted for publication] General Hospital for what she described as a mental breakdown, and her continued accusations against him ought to cause the court concern with any type of parenting arrangement that would allow her to have the children with her more often. EVIDENCE [ 12 ] I will not summarize in detail the evidence of each witness.

Rather, I will comment on the credibility of each witness, and will set out the evidence of each witness that is relevant to the issues before the court. [ 13 ] The parties were involved in an on and off relationship with each other that was tumultuous at times. They met in 2008 or 2009, shortly after M.H. was released from jail. They both had had turbulent childhoods, at least from their mid-teens on. M.H. grew up in foster care, having been removed at a young age from his parents due to their drug addiction.

He is a member of the [redacted for publication] band, although he grew up in foster homes on Vancouver Island and so he did not connect with his band and discover his heritage until he was approximately 20 years old. He has spent some brief periods of time in [redacted for publication], doing some work and connecting with his relatives. Neither A.M. nor the children have visited the area. [ 14 ] M.H. was involved in criminal activity, including cocaine dealing, from his late teens until his early 30’s. He was also involved in gang activity, acting as an enforcer.

He has spent time in youth detention and in provincial correctional facilities. His last criminal conviction was approximately 10 years ago. [ 15 ] A.M. lived with both of her parents until they separated when she was relatively young. Thereafter, her mother, D., had primary care of her and her sister for a number of years. In her early teens, she began to get into trouble, and by the age of 15 her mother could no longer manage her behaviours, including truancy and drug and alcohol related behavior.

A.M. was in trouble with the law as well, and when she was approximately 15 years old, she was charged with breach of probation, and was given the option of going to a youth facility at Logan Lake, or to reside at ARC house in Kelowna, which is a facility for youth who are street entrenched. She chose to reside at ARC house. Thereafter, she was placed into an independent living arrangement. [ 16 ] She did not spend much time at all with either parent until she was an adult.

She lived with her father at his home in Arizona for a few months when she was approximately 20 years old, and has lived with her mother in Kelowna briefly for short periods of time since she has had her own children and has been between residences. She is now completely estranged from both parents, I expect partly due to this litigation and the fact that her parents have chosen to support M.H. in his application. [ 17 ] Both parties have children other than the ones who are in issue in this proceeding.

M.H. has two adult sons, one of whom he has no contact with and one of whom lives on Vancouver Island with his mother. M.H. admits to not having been a good father to those boys, as in their childhood years he was entrenched in a criminal lifestyle. He now maintains contact with his 22 year old son P. from [redacted for publication]. [ 18 ] A.M. has a 12 year old daughter named A., who resides in Kelowna with her father, Mr. S. She has not had any meaningful contact with A. in almost three years. A.M. and Mr.

S. have an unresolved application before this court for A.M. to have contact time with A., but that matter has been stalled, as a Hear the Child report which was ordered a number of months ago has yet to be done. [ 19 ] I am satisfied on the evidence of both parties that their relationship was volatile at times. Both engaged in substance misuse, including drugs and alcohol.

M.H. did not have family members to lean on for support, and A.M. had a complicated relationship with her parents and sister, and at times felt she had little support from them. [ 20 ] The parties became involved in the court system in September 2015. In the fall of 2015, M.H. became primary caregiver, as A.M. was having substance use problems and needed to attended treatment at KARIS house in Kelowna. As her three months of residential treatment drew to a close, both M.H. and J., A.M.’s father, felt that A.M. was doing well and was in a position to share parenting with M.H.

The parties agreed to that arrangement and entered into the terms of a consent order in early 2016. [ 21 ] That was the parenting arrangement until the fall of 2016, when J. contacted M.H. while M.H. was up in [redacted for publication] working and told him that A.M.’s situation had deteriorated and that he needed to come back to Kelowna and take the boys. M.H. did so and has had primary care of the boys since then. [ 22 ] There was much dispute in this trial about whether A.M. agreed in the fall of 2016 to have M.H. take the children into his primary care. She insists she did not do so.

She says that she only asked him to take the boys for a few weeks, until the situation with her roommates could be sorted out. In the fall of 2016, she and her sister, who also has addiction issues, had rented a home near [redacted for publication] school in Kelowna. Soon after they moved in together, her sister took off on her, leaving her with bills and rent to pay. A.M. arranged for a former acquaintance of hers to move in with another woman. These women were addicts and brought that lifestyle into the townhome where A.M. and the children resided.

They would not move out, and this is when A.M. says she agreed that M.H. would take the children for a few weeks, until she could resolve her unstable and unsafe living situation. [ 23 ] J’s evidence was that the townhome in which A.M. was residing in the fall of 2016 with the children was completely unkempt, dirty, and that there were needles and drug paraphernalia within the reach of the children. These concerns prompted him to contact M.H. out of concern for the safety of the children. [ 24 ] A.M. insisted that the needles found were hers for use in injecting vitamins, and that the children were not at risk.

I do not accept her evidence in this regard. She invited known drug addicts to live in her home, and even though the decision was likely made out

of financial desperation, her sister having left her in a financial bind, she still put the children in a situation which put them at risk. She was also using drugs and alcohol at this time. This is, I expect, why she did not take any steps to oppose M.H.’s return to Kelowna and assumption of primary care of the children. [ 25 ] A.M. had commenced a relationship by the fall of 2016 with C., and even though his living situation consisted of a small, one bedroom rental in Peachland, he agreed to A.M. moving in with him in or about December of 2016. [ 26 ] Generally, I found M.H. to be a credible witness.

Given the adversity he faced in his childhood, including his exposure to drug use by his birth parents, being taken away from his birth family and his aboriginal culture at a young age, his placement in multiple foster homes, and his subsequent involvement in the youth justice and criminal justice systems, M.H. has made great strides. I am satisfied he has moved beyond a criminal lifestyle and that he has gotten free of any substance use issues he had.

Although A.M. alleged repeatedly that M.H. abuses prescription medication, specifically oxycodone, there was no evidence before me to corroborate those allegations. His drug tests were clean. I believe his evidence that he has been clean and sober since the fall of 2016. [ 27 ] M.H. has acquired some job skills, including training as a welder, and has done a variety of labour jobs, although the back injury he suffered in a car accident in 2016 has prevented him from doing much of that work recently. His current source of income is income assistance and child tax benefits, totalling approximately $2,000 per month.

He relies in part on the assistance of the food bank and other charitable organizations to help him make ends meet. He and the children also live in subsidized housing. A.M. does not pay child support. [ 28 ] M.H. has clearly taken steps to keep to himself since he took primary care of the children in the fall of 2016. He has taken the parenting after separation course, and has gathered the resource materials from the Nurturing Fathers program offered by Building Healthy Families, but he has not done any more programming.

Despite this, it appears from the various professionals who testified, including M., the preschool teacher, and T., X’s school teacher, as well as the s. 211 author, that the children are being well cared for by him. [ 29 ] Despite A.M.’s allegations that M.H. needs to learn parenting skills, there is no evidence that he does not have those skills. The children are clean, well fed, well rested, well clothed, and thriving in school. They are happy and well adjusted.

When Y was diagnosed early in 2018 with autism spectrum disorder, M.H. took the necessary steps to deal with various professionals, apply for programming and the like. [ 30 ] In regards to M.H.’s prospects for employment in [redacted for publication], he has many relatives in the area and is confident he will be able to do at least some part time general labour there if he is permitted to relocate.

He did not present any specific plan to the court in regards to the type of income he would be earning. [ 31 ] His plans are very general and even speculative at this stage, although his explanation for this is that until he knows if he can move and when that might be, he cannot make any firm plans.

I am satisfied that he has made various inquiries into housing and schooling for the children in [redacted for publication], and that he has maintained contact with family members who are well connected with the community there and who would likely assist him in getting settled there if he is permitted to relocate. [ 32 ] In regards to A.M., while I have no doubt at all that she loves these children and wants to share parenting time with M.H., I found her to lack credibility. Her evidence at many times during both direct and cross examination was rambling, off topic and difficult to follow.

Although I accept that this trial was a very stressful experience for her, and that her anxiety disorder likely affected her demeanour at times, she was often unable to respond to simple questions or to maintain her train of thought. Many of the statements she made about M.H. and about her parents were about alleged incidents which were not put to those witnesses in cross examination, so cannot be given any weight. [ 33 ] A.M. has addiction and mental health issues, but minimizes the extent to which those problems affect her ability to parent and to function.

To her credit, she has taken numerous parenting and self-improvement courses over the past year. Despite the many hours of education and counselling she received, however, she lacks insight. She often blames others for her problems. Her attitude towards her parents, particularly her mother, is incredibly negative. She insists that her mother never loved her, and gave up on her at a very young age.

This testimony came in the face of a letter she wrote to her mother during a time when A.M., who just had A. at the time, had gotten into trouble with substances again, and was begging her mother and grandmother to forgive her, apologizing for her behavior, and thanking them for all of the love and support they had offered to her in the past. [ 34 ] One very troubling aspect of A.M.’s testimony is her insistence that her addiction and mental health issues as they affect her ability to parent are in the past.

There was much focus on a clean drug screen she did in February 2018, which followed a dirty drug screen in the fall of 2017. At that time, she had tested positive for cocaine. During her testimony in late May 2018, however, she admitted to having used alcohol and cocaine on Mothers’ Day 2018, and to then going to the hospital, where she was admitted into the psychiatric ward for 9 days, for what she said was a mental breakdown. She said she was told she has anxiety and depression, and that she needs to follow up with the psychiatrist, but has not done so because she had this trial coming up.

She insisted that her use of cocaine was an “accident” and not a relapse, although she used it voluntarily. She did not even tell J.F., whom she claims to be her biggest support person, of her very recent use of cocaine. [ 35 ] Very little information was provided to the court about her psychiatric condition. I do not accept that she was kept in hospital for 9 days merely because she was anxious and depressed. No medical records were provided to the court, nor was any doctor asked to give an opinion to the court about her diagnosis.

She testified that with the stress of the upcoming trial and the fight she had had with C., which resulted in their brief separation the week before Mothers’ Day, “anyone” would have ended up in the psychiatric ward. I found this to be a flippant answer. [ 36 ] When the court asked if A.M. missed her weekend parenting time as a result of her admission into hospital, I was advised that her psychiatrist gave her a day pass to see her children the weekend after her admission. It does not appear that M.H. knew of her hospitalization and relapse. This is a parent with whom A.M. wants to co-parent on an equal basis.

[ 37 ] A.M. clearly does not value the role M.H. plays in the lives of the children. Although she does not seek primary care of them, she stated in evidence that she thought that the children would be better off living in foster care than with M.H., until such time as he was able to improve his parenting skills. This was her testimony, even after she had read the s. 211 report, and knew from the boys’ teachers that they were doing extremely well in the care of their father.

This suggests to the court that she is unable to put the best interests of the children before her own. [ 38 ] I found D. to be a credible witness. She is clearly a parent who is frustrated with her daughter’s choices in life, and who has chosen now to focus on her three grandchildren. She plays an important role in the lives of the children. She sees them regularly, has a close bond with them and their half sister A., and she is a source of support to M.H. [ 39 ] With regards to J., I find that he has had a more distant relationship with his daughter.

He himself has had issues with drugs and alcohol in his lifetime, although has managed to build and run a successful flooring company. He does love the children, and has been and continues to be a support, both financially and otherwise to M.H. [ 40 ] I found A.M.’s partner C. to be a credible witness overall. When their relationship is “on”, he is a support to A.M. and clearly cares for the children, although he too admitted to using cocaine in mid May 2018, and to the brief separation from A.M.

His affection for these children seemed genuine, and he seems committed to being a part of the lives of A.M. and the children going forward. [ 41 ] A.M. also has the support of J.F., although the failure of A.M. to tell J.F. about her cocaine relapse on May 13, 2018 was surprising, given A.M.’s testimony about the importance of J.F. in her life. J.F.’s role in A.M.’s life has taken many turns in the 17 months they have known each other. She was initially A.M.’s counsellor, then became an advocate of sorts for her in these family proceedings when A.M. found herself between lawyers.

She appears to have dealt with the RCMP on A.M.’s behalf in regards to allegations that M.H. was sexually inappropriate with one of the children, and as a result of what she perceived to be poor treatment of herself and A.M. by MCFD workers and the RCMP during that experience, she is now in contact with the Representative for Youth at the provincial level. J.F. has never met the children or M.H. [ 42 ] Another issue that was the subject of a significant amount of testimony was the number of allegations made to the MCFD about M.H. The

section 211 report that was before the court describes an interview of social worker Brenda Doucette by the report author. Ms. Doucette advised that A.M. has made 6 complaints about M.H., and that none of the allegations has been substantiated. The report says the police have told A.M. that if she continues to make unsubstantiated allegations against M.H., that she may be charged with mischief. [ 43 ] A.M.’s evidence is that she has not made all six of the allegations.

She says that she talked to a friend at KARIS house about her concern that M.H. put a board between the boys when he transported them in his truck, and that her friend made the child protection complaint. J.F. stated that when A.M. called her in hysterics and told her that Y had stated that his father stuck his fingers in his bottom, that J.F., as a social worker, was obligated to report that to MCFD. [ 44 ] No other explanations were offered for various other complaints to MCFD, including that the boys were not being properly fed, that they were unclean, etc.

I do not believe A.M. when she says she has not made numerous complaints to MCFD. The s. 211 report says otherwise. Had A.M. wanted to challenge that evidence, she could have called the author of the report. [ 45 ] A.M. appears to have no ability to deal with any form of parenting disputes in a reasonable fashion. She involves others in her complaints about M.H., and when they make the complaints to MCFD, she says she did not have anything to do with it.

She stated many times in evidence that she wants to co-parent with M.H., but has no insight into how her actions and those of the people she involves herself with contribute to the ongoing conflict and to M.H.’s distrust of her. THE LAW [ 46 ] The relevant

section of the Act in regards to the relocation application is s. 69, which provides as follows: 69

(1) In this section, "relocating guardian" means a guardian who plans to relocate a child.

(2) On application by a guardian, a court may make an order permitting or prohibiting the relocation of a child by the relocating guardian.

(3) Despite section 37 (1) [best interests of child] , the court, in making an order under this section, must consider, in addition to the factors set out in section 37 (2), the factors set out in subsection (4) (

a) of this section.

(4) If an application is made under this

section and the relocating guardian and another guardian do not have substantially equal parenting time with the child, (

a) the relocating guardian must satisfy the court that (

i) the proposed relocation is made in good faith, and (ii) the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life, and (

b) on the court being satisfied of the factors referred to in paragraph (a), the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise.

(5) If an application is made under this

section and the relocating guardian and another guardian have substantially equal parenting time with the child, the relocating guardian must satisfy the court

(

a) of the factors described in subsection (4) (a), and (

b) that the relocation is in the best interests of the child.

(6) For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following: (

a) the reasons for the proposed relocation; (

b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities; (

c) whether notice was given under

section 66 [notice of relocation] ; (

d) any restrictions on relocation contained in a written agreement or an order.

(7) In determining whether to make an order under this section, the court must not consider whether a guardian would still relocate if the child's relocation were not permitted. [ 47 ]

Section 37 of the Act, which addresses the best interests of the child inquiry, is always relevant in any application affecting a child. That

section provides as follows: 37

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following: (

a) the child's health and emotional well-being; (

b) the child's views, unless it would be inappropriate to consider them; (

c) the nature and strength of the relationships between the child and significant persons in the child's life; (

d) the history of the child's care; (

e) the child's need for stability, given the child's age and stage of development; (

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (

g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being. [ 48 ] The

section of the Act that deals with changes to parenting arrangements is s. 47, and it provides as follows: On application, a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person. LAW AS IT APPLIES TO THE FACTS [ 49 ] I will first deal with M.H.’s application to relocate. I have set out the test above in a situation where the guardians do not share parenting time.

M.H., as the relocating guardian, must satisfy the court that the move is made in good faith, and that he has proposed reasonable and workable arrangements for A.M.’s relationship with the children to be preserved, and for the relationship between the children and other significant people in their lives to be preserved.

If he establishes those two things, the move is presumed to be in the best interests of the children, and the burden of proof shifts to A.M. to rebut that presumption. [ 50 ] A.M. argues that M.H. has not satisfied the good faith requirements, and that he has not proposed reasonable and workable arrangements for the children to preserve their relationship with her, the other guardian, and C., whom she is argues is a significant person in the lives of the children.

Is the proposed move made in good faith? [ 51 ] M.H.’s reasons for the proposed move include his wish to live on the reserve in [redacted for publication], with his band and many relatives. He was not raised with his family as a result of his foster homes being elsewhere, but has connected with his band, obtained his status, and started building relationships with his extended family. He speaks of a simpler life, away from the negative

influences he has observed in Kelowna and away from people from whom he wants to distance himself as a result of his past. He argues that this will benefit the children. [ 52 ] His fondness for [redacted for publication] is not a new thing. A.M. was aware of it when they were together. I also find that part of the reason for the proposed move is M.H.’s wish to distance himself and the boys from the conflict he sees as having been a constant in their lives for the better part of the past two years.

This specifically includes the numerous allegations made against him by A.M. and her friends or associates to MCFD. [ 53 ] In the case of LJR v. SWR 2013 BCSC 1344 , Mr. Justice Betton discussed the good faith requirement in s. 69(6). He held that the four considerations in that

section are not an exhaustive list, but that they do establish a tone for the concept of good faith in relocation proceedings. He stated at paragraph 71 as follows: “Good faith is a subjectively held state of mind. Yet, some of the above characteristics are undoubtedly objective.

I find that to the extent a factor listed in s. 69(6) is objective, a positive or negative finding suggests an inference that the relocating guardian either possessed or did not possess the required subjective good faith.” [ 54 ] He then reviewed each of the four factors. [ 55 ] In regards to the first factor, which is the reason for the proposed relocation, he said at paragraph 73 that the reasons have both a subjective and objective dimension: “Subjectively, it is easy to imagine examples where the reason may not be indicative of good faith - for example, where a guardian is found to be making a move to frustrate another guardian’s involvement with the child.

Objectively, I find that the court can consider the reasons for the move based on the facts before it. The objective reasonableness or lack thereof of the reasons for a move can weigh in favour of or against the subjective good faith of the relocating guardian. An unreasonable move suggests the relocating guardian is not acting in good faith.” [ 56 ] In that case, the applicant mother wanted to move with the child from Kelowna to Tennessee, where she had a new partner whom she said was financially secure and who could provide stability to her and her daughter.

She said there was little opportunity for her in Kelowna, and anticipated better opportunities for her own employment in Tennessee. [ 57 ] Justice Betton found the reasons for her move from a subjective standpoint weighed in favour of a finding of good faith, as she honestly believed she had better opportunities in Tennessee. [ 58 ] He then turned to the next factor in s. 69(6), which was whether the proposed relocation is likely to enhance the general quality of life of the child, and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities.

He held that this portion of the analysis was more objective. [ 59 ] He found that there were questions as to whether the applicant’s perception of security was well-founded. He said he had no doubt that she believed that the perceived benefits existed, but that objectively the evidence left considerable uncertainty. He found that the financial picture of the applicant and her new partner in Tennessee was quite unclear on the evidence before him.

He also stated that the significant geographic separation that would be created between the child and the respondent father and the child’s extended family would almost certainly adversely affect those relationships, which was likely to increase as the child got older and entered school and activities. This lead to his conclusion that this factor was not supportive of a finding of good faith. [ 60 ] He proceeded with the next factor, which was whether notice was given, and found that it had been given, which was supportive of a finding of good faith.

Lastly, he looked at whether there was any court order or agreement prohibiting a move. He found that there was such an order, and that the existence of it was not supportive of a finding of good faith. [ 61 ] Although his findings lead to a conclusion that the relocating guardian had not met the requirements set out in s. 69(4) of the Act , he still proceeded with a best interests inquiry.

He found that he needed to do so, stating that in rare cases it may be that a relocating guardian will not act in good faith, but the proposed relocation is nevertheless in the best interests of the child. [ 62 ] This decision was followed by Judge Lee of the B.C. Provincial Court in Bonar v. Bonar , a case which was unsuccessfully appealed to the Supreme Court and which is reported at 2016 BCSC 2065 .

The trial judge had found that the applicant mother, who wanted to move from Vancouver to Cranbrook with the children, then aged 9 and 7, had not met the good faith requirement as she had not established that the move was likely to enhance the general quality of life of the children and the applicant, including any possible increase in emotional well-being or financial or educational opportunities. [ 63 ] The applicant in that case had a full time job with the school board in Vancouver and earned almost $80,000 per year.

If she relocated, she would have to work as a teacher on call in Cranbrook, with no certainty as to hours or income.

There was no evidence before the trial judge that there were better amenities or advantages for the children in Cranbrook. [ 64 ] In this case, I find that M.H.’s reasons for wanting to relocate with the children, which I have set out above, are subjectively reasonable, and that his reasons for the move weigh in favour of a finding of good faith. [ 65 ] I now turn to the second factor in s. 69(6): whether the proposed relocation is likely to enhance the general quality of life of the children and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities? [ 66 ] In the Bonar decision (supra), the trial judge found that the mother’s plans were speculative, and that given the young ages of the children, their need for stability and a continued relationship with their father to be more critical.

He found that the uncertainty of the applicant mother’s plan, including the decision to leave full time employment for on call work, had to be weighed against the certainty that existed by remaining in Vancouver. He concluded that the relocation did not protect, to the greatest extent possible, the children’s

physical, psychological and emotional safety, security and well-being and was not, therefore, made in good faith. The trial judge said that this was not the end of the matter, in that the result of the lack of good faith meant that Ms. Bonar could not rely on the presumption of best interests in s. 69(4). Rather, she had to satisfy the court that the relocation was in the best interests of the children.

The Supreme Court agreed on appeal, and said at paragraph 63 that the relocating parent must satisfy both the subjective and objective elements of the good faith test before she could rely on the presumption that the proposed move was in the best interests of the children. [ 67 ] M.H.’s plan is speculative, both in terms of his housing situation and financial stability. He has no timeline for when he would be in a home of his own. His plan involves him relying almost completely on the charity of others to house them, to barter with to allow him to build a home, and to employ him.

None of those other people testified.

While I have no doubt that spending time in [redacted for publication], getting to know their culture and their large, extended family would be of benefit to the children, I am not convinced on a balance of probabilities that a permanent relocation to this community would enhance the general quality of life of the children, particularly when the result of such a move would be a huge reduction in their parenting time with their mother, possibly to just a few days per year at best. [ 68 ] I find on the evidence before me that M.H., despite his subjective belief that a move would benefit the children, has not satisfied the court that the relocation is likely to enhance the general quality of life of the children or that it would increase their emotional well- being or financial or educational opportunities.

That results in a finding that is not supportive of a finding of good faith. [ 69 ] Although by failing to satisfy the good faith rest in s. 69(4)(a)(

i) of the Act , M.H. has lost the benefit of the best interests presumption, I will still comment on part two of the test in s. 69(4)(a)(ii), which is the following: has M.H. proposed reasonable and workable arrangements to preserve the relationship between A.M. and others with the children? [ 70 ] M.H. proposed that A.M. would have daytime visits with the children when he came to Kelowna two or three times per year with the children. He said the children would stay at their grandmother’s place and would see their mother for day visits as they do now, for several consecutive days.

He is opposed to any overnights given her recent relapse and other issues. This plan was put forward during his lawyer’s submissions to the court, rather than during his evidence. He himself suggested during his testimony that she could come to [redacted for publication] to visit the children. [redacted for publication] is in a remote area of the province, many hundreds of kilometres away from Kelowna. Access by car and ferry takes many hours. Access by plane is more realistic but is expensive. A.M. has no income and M.H. is on income assistance.

I cannot foresee A.M. being able to travel to [redacted for publication] to exercise parenting time. I expect that if M.H. were to relocate with the children, they would see their mother very infrequently. I do not find that M.H.’s proposed plan is reasonable or workable. [ 71 ] I now must decide whether, despite the finding that neither the good faith nor the reasonable arrangements tests in s. 69(4)(a)(

i) and (ii) have been met, the move is in the best interests of the children, considering the factors enumerated in s. 37 as cited above. The evidence before me was that the children are doing well in Kelowna. X has settled well into school, and is making friends. His teacher confirmed all of this. I am satisfied on the evidence that the caregivers and teachers for the children are able to communicate and work with both parents, despite the inability of the parents to communicate effectively with each other.

Y has a team of people who have been involved in the planning for him since he was diagnosed with autism spectrum disorder. He seems to be doing well at preschool according to his teacher, who also testified. A transition plan is in place for him which will assist him with his move into elementary school. Consistency, stability and history of care are important s. 37 factors, as is the emotional well-being and health of a child. I heard that with Y’s disorder, consistency and stability are of particular importance to him.

Under s. 37 of the Act , I am required to consider the views of the children, unless it would be inappropriate to do so. Given the nature of the applications and the ages of these children, I have determined that it is not appropriate to canvas their views. [ 72 ] Despite some of A.M.’s shortcomings, I find that her presence in the lives of the children, through consistent, structured parenting time, is of benefit to them. From what the teachers and the

section 211 report author report, the children have a strong bond with her. This is not surprising, given that until the fall of 2016, she shared parenting time with M.H. on a relatively equal basis. As such, she has been a constant presence in their lives, as has their father. [ 73 ] Currently, she sees them for two 8 hour visits per week. She has had a recent drug relapse and a mental health breakdown resulting in a 9 day hospital stay. She is not in a position to be able to take the children for a week or two of uninterrupted parenting time, but the current

schedule is serving the children well, and they appear to be participating in various fun family activities with their mother and C. DECISION [ 74 ] As a result of the above conclusions, I conclude that a relocation to [redacted for publication] is not in the best interest of the children, and I deny M.H.’s application to relocate. I also deny A.M.’s application for increased parenting time. As a result of her recent cocaine relapse and nine day admission into the psychiatric unit, I am not convinced that it is in the best interests of the children that she have additional parenting time at this time.

I expect that before any judge considers a further application by her for increased parenting time, he or she would want to see a report or letter from a psychiatrist with respect to the reasons for her May 2018 admission in the [redacted for publication] unit, her diagnosis and any recommended treatment. ____________________________ The Honourable Judge L. Wyatt Provincial Court Judge