L.M.B. v. V.R.B. Date:, 2012 BCPC 335

Citation: L.M.B. v. V.R.B. Date: 20120827 2012 BCPC 0335 File No: 11-2045 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: L.M.B. APPLICANT AND: V.R.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.M. MERRICK Appearing in person: L.M.B.

Counsel for the Respondent: D. Fairweather Place of Hearing: Sechelt, B.C. Date of Judgment: August 27, 2012 EXCERPTS FROM PROCEEDINGS [1] THE COURT: This is my ruling based on the evidence I heard August 14, 2012, and submissions that I heard earlier thismorning, August 27, 2012. [2] T.B., who is 16, and J.B., who is 13, are the children of L. and V.B. The parents were married in 1994 and separated in 2005. When the parties separated, the children were primarily resident with their father. Over time, the parties agreed that the children wouldspend alternating weeks with each parent. In the summer of 2011, Ms.

B. and the children spent some time in the Okanagan. Upon theirreturn and in discussion with the children, Ms. B. filed an application to move with the children to Penticton. [3] In October 2011, T. began living full-time with her mother, and in the spring of 2012, J. began living full-time with his mother. [4] A s. 15 custody and access report was ordered and prepared. It is clear from that report that the children are adamant that theywant to move to the Okanagan and live there with their mother. This is acknowledged by Dad.

In fact, Mom and the children havealready moved to Peachland and Mom is currently renting out her house in Gibsons. [5] There is no existing custody and access order, nor is there a custodial or access agreement. [6] Pursuant to my order of January 11, 2012, Dad is currently paying child support to Mom in the amount of $826. Prior to themove to the Okanagan and renting out her house, Ms. B. and Mr. B. lived in the same housing complex in Gibsons. Mom would pick upthe children after school until Dad returned home from work if it was his week with J.

There had been workable communicationbetween the parties; however, since the present issue has surfaced, tensions have increased and Dad's relationship with the children hasbecome strained: see the last paragraph on page 2 of the custody and access report. [7] The issues before me are: What is the appropriate custodial arrangement for the children? Where should their primaryresidence be? What is appropriate access? and Should child support continue at the current rate? [8] In reaching my decision, I must consider the factors set out in s. 24 of the Family Relations Act. They read as follows: 24

(1) When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interestsof the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child'sneeds and 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 those rights andduties adequately. And I apologize to the parties. I just realized that one portion of what I need to refer to I left on my desk, so we will just stand downbriefly and I will be right back. (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) [9] THE COURT: I am also of the view that those factors encompass the following considerations from the Supreme Court ofCanada decision in Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27: the existing custody arrangement and relationshipbetween the child and the custodial parent; the existing access arrangement and the relationship between the child and the access parent;the desirability of maximizing contact between the child and both parties; the views of the child; 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; disruption to the child of the changein custody; disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [10] Since the hearing of witnesses on August 14, 2012, Mom's plan has changed. During submissions, she told me that rather thanmoving to Penticton, she and the children wish to remain in Peachland and the children will attend school in the Westbank area. [11] Mom's position can be summed up as follows with reference to the s. 15 report: [Ms.

B.] stated that last summer she and the children had an extended visit to Penticton to attend to her dying father, the children'spaternal grandfather. She said that on this particular visit they told her how much they would like to live there. She indicated thatinitially she was not sure whether it was just because they were having a good time, however after speaking more directly about theircomments she realized they were earnest in their wishes. [Ms.

B.] felt that there were many opportunities for a better life for the three ofthem and along with access to a lot of extended family, she decided it would be a good move. She made an application to Court shortlyafter their return from Penticton. A month later, T. decided to live with her mom full time.

See page 2, paragraph 3, of the custody and access report. [12] Dad's position is that the move is simply not in the children's best interests. [13] With respect to Mom's position, she says she has better work prospects, school opportunities are better for the children in theOkanagan, and with respect to J., the hockey program in the Okanagan is much better. She says that will help her son attain his goal ofplaying professional hockey. Regarding access, Ms. B. says the children will get to see their dad and it will all work out. [14] With respect to Ms.

B.'s employment situation, I do agree that finding work, especially full-time work, on the Sunshine Coast ischallenging. That said, however, Ms. B. has really stopped looking for work on the Sunshine Coast and I find has really not made, thisyear, a significant effort to find work in either North Vancouver, West Vancouver, or the city of Vancouver. I have determined thatsaying employment prospects in the Okanagan are better is purely speculative. [15] Regarding schooling, I heard some evidence that there are courses offered in the Okanagan schools that are not available on theSunshine Coast.

Both children are honour roll students. That said, given the recent change of plans, there is no evidence before thecourt with respect to the Westbank schools.

Based on the evidence before the court, I am not prepared to find that there are betterschools in the Okanagan, but I agree that there is the possibility of the children taking courses in the Okanagan that are not offered on theSunshine Coast, so there is some benefit to the children there. [16] On the issue of hockey, it may very well be that the programs offered in the Okanagan are better than what J. has here on theSunshine Coast, but based on the evidence, I am not satisfied that J.'s hockey skills are to the extent that he is such an elite player thatthis should be emphasized. [17] As Ms.

B. has stated, even if there is a one percent chance of J. playing professional hockey, she wants to give him thatopportunity. In my view, that one percent chance can be satisfied on the Sunshine Coast. That said, I am prepared to find there is somebenefit to J., if the move is allowed, as there may be a greater chance in the Okanagan to maximize his skills. [18] However, on the issue of maximizing contact and furthering the relationship with their father, I have no confidence in Ms. B. onthis matter.

I do not think she views this as a priority, and I am satisfied she will simply give in to the wishes of the children. [19] I now turn to the preference of the children. This is a significant issue given the ages of the children. The Family Relations Actdirects me to take the views of the children into account. There does come a point in time when, near adult years, a child or childrenmust be deemed to be able to settle his or her own future. It is not fair to push a child to rebellion: see Alexander v. Alexander (1988), (BC CA), 15 R.F.L. (3d) 363 (B.C.C.A.).

Also, for a custody order relating to a teenager to be practical, it mustreasonably conform to the wishes of the child: see O'Connell v. McIndoe (1988), (BC CA), 42 R.F.L. (4th) 77(B.C.C.A.). However, I am not bound by the preference of the child or children when the best interests of the child or children layelsewhere: see Alexander v. Alexander (1986), (BC CA), 3 R.F.L. (3d) 408 (B.C.C.A.). [20] This is not an easy decision. I do see benefits for both children in a move to the Okanagan.

That said, they have thrived andexcelled here on the Sunshine Coast in both academics and athletics. [21] Taking into account the factors in s. 24 of the Family Relations Act, the principles from Gordon v. Goertz, I find as follows andwill then make the following order. [22] Mom's plan is simply too uncertain and will limit Dad's contact with the children.

While I appreciate the preferences of thechildren and the reality that T. will leave the Sunshine Coast for university in a few short years, balancing that against the stability thatthe children have on the Sunshine Coast, how well they have done on the Sunshine Coast, and the involvement of their father, I am ofthe view that their preference is not in their best interests.

Remaining on the Sunshine Coast, continuing school and athletics where theyhave thrived, and maintaining a significant relationship with both parents I find is in the children's best interests. [23] There will be an order that the parties will have joint custody and joint guardianship of the children. T. will be primarilyresident with her mother, and her father will have reasonable and generous access. There will be a shared parenting arrangement for J.

He will alternate weekly with each parent, and commencing at 6 p.m. on Monday, he shall reside with his father for a week, and thatshall alternate unless the parties otherwise agree on another date or a different parenting program. [24] With respect to child support, I am using approximates of the parties' incomes. I am taking Dad's income at approximately$75,000 and Mom's income at $19,500, recognizing that T. will primarily be resident with Mom and that there will be a shared parentingregime with respect to J.

I am using a rough approximation with respect to the Child Support Guidelines, which I acknowledge may be$40 or $50 higher than a strict

interpretation of the guideline, but it is what I think is appropriate given the fact that Mom will have to

return to the Sunshine Coast. I am setting child support at $1,000 per month commencing September 1, although I am open to a different date in September, and I will hear from you on that, Mr. Fairweather, because I think maintenance has been paid on the 15th of the month, so I have, Mr. Fairweather, as a preference, the 15th? [ 25 ] MR. FAIRWEATHER: The 15th is preferable. That's when he gets paid, Your Honour. [ 26 ] THE COURT: Yes. So then it will be commencing September 15, child support will now be at the rate of $1,000 per month until further order of the court. (REASONS CONCLUDED)