E.C.A. v. A.L.M. Date:, 2015 BCPC 418

Citation: E.C.A. v. A.L.M. Date: 20150521 2015 BCPC 0418 File No: 12-26150 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: E.C.A . APPLICANT AND: A.L.M . RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE H.K. DHILLON Counsel for the Applicant: M. Ranspot

Counsel for the Respondent: N. Hillary Place of Hearing: Vancouver , B.C. Dates of Hearing: July 2, 3, 4, 8, 9, 2014, March 18, 23 & 25, 2015 Date of Judgment: May 21, 2015 Introduction [ 1 ] In this family law proceeding, the father A.L.M. (Mr. L.M.) applies for an order prohibiting the mother E.C.A. (Ms. C.A.) from relocating their 9 year old daughter, R.L., from Vancouver to Mexico City, Mexico. He also seeks orders granting him specified parenting time and parental responsibilities. [ 2 ] Both parents are from Durango, Mexico and sought refugee status on arrival in Canada in 2005.

The mother was found to be a person in need of protection by the Immigration and Refugee Board of Canada in June 2007 and was granted permission to remain lawfully in Canada and to sponsor the father for entry as her spouse. Their daughter was born on [omitted for publication]. [ 3 ] The parties separated in 2011 and in August 2013 the mother gave written notice to the father of her desire to relocate with the child to Mexico City to reside with her fiancé Mr. S.G. She and Mr.

S.G. were married in Mexico City in January 2014 and are parents to an infant son born in October 2014. [ 4 ] As can be seen from this brief overview, this complex and difficult case raises a number of challenging issues, including: 1. Whether the relocation provisions under

Part 4, Division 2,

Section 46 of the Family Law Act or

Part 4, Division 6, Sections 65 to 69, apply to the application for relocation of the child? What constitutes an order or agreement to trigger

Part 4, Division 6,

Section 65 to 69 of the Family Law Act ? 2. What parenting orders are in the best interests of the child having regard to the factors under s. 37 and the applicable statutory analysis mandated under either Division 2 or Division 6 of the Family Law Act. 3. What effect does an accepted refugee claim have on the relocating parent’s desire to return with the child to reside in the country from which that parent originally sought refuge and asylum in Canada? The Applicable Legislation

Part 4, Division 2 of the FLA Changes to child's residence if no agreement or order 46

(1) This

section applies if all of the following circumstances exist: (

a) no written agreement or order respecting parenting arrangements applies in respect of a child; (

b) an application is made for an order described in section 45 (1) (

a) or (b) [orders respecting parenting arrangements] ; (

c) the child's guardian plans to change the location of that child's residence and the change can reasonably be expected to have a significant impact on that child's relationship with another guardian.

(2) To determine the parenting arrangements that would be in the best interests of the child in the circumstances set out in subsection (1) of this section, the court (

a) must consider, in addition to the factors set out in section 37 (2) [best interests of child] , the reasons for the change in the location of the child's residence, and (

b) must not consider whether the guardian who is planning to move would do so without the child. Informal parenting arrangements 48

(1) If (

a) no agreement or order respecting parenting arrangements applies in respect of a child, and (

b) the child's guardians have had in place informal parenting arrangements for a period of time sufficient for those parenting arrangements to have been established as a normal part of that child's routine , a child's guardian must not change the informal parenting arrangements without consulting the other guardians who are parties to those arrangements, unless consultation would be unreasonable or inappropriate in the circumstances.

(2) Nothing in subsection (1) prevents a child's guardian from seeking (

a) an agreement respecting parenting arrangements, or (

b) an order under

section 45 [orders respecting parenting arrangements] .

Part 4, Division 6 of the FLA Definition and application 65

(1) In this Division, "relocation" means a change in the location of the residence of a child or child's guardian that can reasonably be expected to have a significant impact on the child's relationship with (

a) a guardian, or (

b) one or more other persons having a significant role in the child's life.

(2) This Division applies if (

a) a child's guardian plans to relocate himself or herself or the child, or both, and (

b) a written agreement or an order respecting parenting arrangements or contact with the child applies to the child. Other Relevant FLA Provisions Under s. 1 of the Family Law Act , “written agreement” means an agreement that is in writing and signed by all parties. General

interpretation 2

(1) A reference to an agreement or order (

a) is to be read as a reference to that part of an agreement or order that is relevant to the subject matter of the provision, of this Act or of the regulations made under it, in which the reference is made, and (

b) includes part of an agreement or order. Best interests of child 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.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor. Orders respecting parenting arrangements 45

(1) On application by a guardian, a court may make an order respecting one or more of the following: (

a) the allocation of parental responsibilities;

(

b) parenting time; (

c) the implementation of an order made under this Division; (

d) the means for resolving disputes respecting an order made under this Division.

(2) An order under subsection (1) must not be made if the child's guardians are the child's parents and are not separated.

(3) The court may make an order to require that the transfer of a child from one party to another, or that parenting time with a child, be supervised by another person named in the order if the court is satisfied that supervision is in the best interests of the child.

(4) Despite subsection (1), a person applying for guardianship may apply, at the same time, for an order under this section. Division 2 or Division 6 of

Part 4 of the Family Law Act ? [ 5 ] The Family Law Act sets out two different provisions, one referencing a change in the location of a child’s residence (s. 46) and the other expressly dealing with “relocation” as defined under s. 65 and s. 69. The first issue for determination is which provisions of the FLA govern the application for relocation of the child:

Part 4, Division 2 ,

section 46 or

Part 4, Division 6 -

section 69 of the FLA? [ 6 ] Division 2, s. 46 applies to a change of location of a child’s residence where there is no written agreement or order respecting parenting arrangements for the child. Division 6 applies to a relocation application where a “written agreement or an order respecting parenting arrangements or contact with the child applies to the child”: FLA s. 65(2)(b). [ 7 ] Before the start of this proceeding, there were no orders in place concerning guardianship or parenting of the child. The only written agreement between the parties was limited to financial matters.

The parties had an informal but regular parenting arrangement under which the child’s primary residence was with the mother during the school week with parenting by the father on weekends. [ 8 ] The proceedings commenced in September 2013. The father filed the initial Application respecting parenting arrangements and a Notice of Motion seeking to prevent the relocation of the child to Mexico City. In due course the parties obtained an interim order of non-removal, save and except as provided for by consent of the parties or by court order.

There have been interim orders regulating the short-term travel of the child with the mother pending the conclusion of the family law proceedings. [ 9 ] I have considered the recent case law from Supreme Court of British Columbia as to which Family Law Act provisions apply where an interim order is in place respecting parenting arrangements. As summarized succinctly by Justice Kent in Pepin v. McCormack 2014 BCSC 2230 : [53] The Family Law Act provides two approaches for relocation of children. The first is under

Part 4, Division 6 of the Act , which applies if there is a “written agreement or an order respecting parenting arrangements or contact with the child” (s. 65(2)(b)). The second approach is set out in s. 46 of the Act, which applies if there is no order or written agreement respecting parenting arrangements in place. [54] There is presently conflicting authority in this Court as to which of s. 46 (Part 4, Division 2) or s. 65 (Part 4, Division 6) governs where, as here, an interim parenting arrangement order exists. In L.J.R. v. S.W.R . , 2013 BCSC 1344 , the court held that as long as the interim order deals with parenting arrangements or contact, it is an “order” and

Part 4, Division 6 governs. However, in S.J.F. v. R.M.N. , 2013 BCSC 1812 , the court held that s. 65 is not intended to apply on an initial application for orders respecting parenting arrangements under s. 45 of the Act . [55] The conflict between these two decisions was considered by the court in A.J.D. v. E.A.E , 2013 BCSC 2160 , where it was concluded that the reference to “order” in s. 46 of the Act includes an interim consent order establishing parenting arrangements which, as here, was made at a judicial case conference. I agree with the analysis and outcome in this latter decision and I therefore conclude that the relocation issues in this case are governed by

Part 4, Division 6 of the Act . [ 10 ] It was submitted on behalf of the mother that the various consent orders or letters of permission for the child to travel to Mexico with her mother constitute “written agreements” or “orders” respecting “parenting arrangements” sufficient to trigger Division 6 analysis.

I reject such a contention. [ 11 ] The context in which an interim order is reached (such as at a judicial case conference or after fully considered negotiations), and the scope of parenting responsibilities and arrangements addressed in the interim order, are relevant to determining if the order falls within the meaning of s. 65.

Many interim orders are “make peace” orders of limited scope intended to stabilize difficult family relations until the competing claims can be adjudicated on their merits. [ 12 ] In the present case, while there is a written agreement concerning child support, there is no prior written agreement between the parties concerning parenting arrangements, parenting responsibilities or contact with the child. Since their 2011 separation, the mother and father have been parenting their daughter under an informal arrangement as referenced under s.48 of the Family Law Act . [ 13 ] Under

part 1,

Section 1 of the FLA , “parenting arrangements” means arrangements respecting the allocation of parental responsibilities or parenting time, or both, and can be informal as defined under s. 48 or formalized by a s. 45 order or by a filed written agreement respecting parenting of the child. I find that it is a prerequisite under s. 65(2)(

b) of the FLA that there be “a written agreement or an order respecting parenting arrangements or contact with the child”. Informal parenting arrangements will not suffice to trigger a Division 6 relocation analysis. [ 14 ] As for the interim orders in this case, I do not consider the expiring letters of permission or interim orders permitting the child to travel with the mother for a circumscribed period under certain conditions to be orders that allocate parental responsibilities or parenting time within the meaning of s. 45 and s. 65(2)(

b) of the FLA .

[ 15 ] In my view, written agreements or orders under s. 45 as to parenting time or parental responsibilities are intended to define the obligations and responsibilities of the parents in meeting the child’s normal daily or weekly routine as defined under s. 41 (parental responsibilities) and s. 42 (parenting time) of the FLA .

A plain reading of s. 41 reveals a bundle of comprehensive obligations and responsibilities over the child’s day to day care, control and supervision. [ 16 ] The interim consent orders for travel in this case can only be characterized as short term, limited orders that do not address the comprehensive responsibilities a parent or guardian would exercise in the child’s regular, daily and normalized routine for the foreseeable future. [ 17 ] If the court were to accept the

interpretation suggested by counsel for the mother that these interim orders respecting time- limited travel constitute “agreements” or “orders” respecting “parenting arrangements”, parents would be loathe to consent to any interim order or agreement pending the determination of the originating application lest their interim consent bind them to an unwanted or unintended course or result in the underlying litigation. [ 18 ] Having regard to the limited scope of the interim orders in this case, I conclude that no “written agreement or order respecting parenting arrangements” in place with respect to the child within the meaning of s. 65(2)(

b) of the Family Law Act . The result is that

section 46 of the Family Law Act governs this initial application for an order respecting parenting arrangements that also raises a relocation issue.

Applying s. 46 of the Family Law Act [ 19 ] It is not contested that the mother’s desire to change the location of the child’s residence from Metro Vancouver, British Columbia to Mexico City, Mexico can reasonably be expected to have a significant impact on the child’s relationship with her father: Family Law Act s. 46(1) (c). [ 20 ] To determine what parenting arrangements would be in the best interests of the child having regard to the factors set out in section 37(2) of the Family Law Act , the court must consider the reasons for the proposed change in location of the child’s residence and must not consider whether the relocating guardian would do so without the child: s. 46(2). [ 21 ] The lens through which the best interests of the child analysis is undertaken in a relocation case should follow the approach set out by the B.C.

Court of Appeal in S.S.L v. J.W.W. 2010 BCCA 55 . Again, as noted by Justice Kent in Pepin v. McCormack , abov e, at paras. 94-96 . [96] T his approach is intended to ensure that all possible options are examined without favoring the status quo or the relocating parents' proposal and to avoid the so-called "double-bind" referred to in S.S.L. (which is avoided in any event by virtue of s. 46(2)(

b) of the Act ). [95] It will be recalled the four scenarios posited in S.S.L. were: (1) primary residence with the relocating parent in the place to which he or she is proposing to move; (2) primary residence with the parent who is not relocating; (3) shared parenting with either parent in the location to which the relocating parent wishes to relocate; and (4) shared parenting with both parents in the place from which the relocating parent is proposing to move). [97] Each parent is responsible to put forward evidence in support of the parenting plans they propose in each of the four possible contexts referred to above… [98] Part of the analysis in these cases involves an assessment of each parent's emotional and economic prospects.

Facts Background of the Parents [ 22 ] In 2005 the mother and father were unmarried Mexican citizens living in Durango, Mexico. The mother was the victim of sexual violence and threatened with further harm to prevent her from disclosing financial irregularities she uncovered in her employer’s business. [ 23 ] Fear of their personal safety compelled the mother and father to leave Durango, Mexico for Canada. They made a claim for refugee protection under the Immigration and Refugee Protection Act .

In reasons released by the IRB (RPD file VA5-02317), the mother was found to be a person in need of protection in that she had established a risk to life or risk of cruel and unusual treatment or punishment were she to be returned to Durango, Mexico. [ 24 ] The adjudicator found that the mother did not face a risk to life if she were to move to Monterrey or Mexico City but in all the circumstances, including her PTSD, there was no viable “internal flight alternative” (IFA).

As noted by the adjudicator: “The basis for a finding of an IFA is recognition that while a Claimant may need protection in one part of the country of origin, a Claimant may not need protection throughout the country. The test for IFA is two pronged conjunctive test. There must be another part of the country where the Claimant does not face a risk to her life, and that part of the country must not be an objectively unreasonable choice for the Claimant.” [ 25 ] In the result, the mother succeeded in her application for admission to Canada as a refugee claimant, and sponsored the father as her spouse.

[ 26 ] The parties lived together in British Columbia with the child R.L. until their marriage breakdown in February 2011. The father moved out of the family home. The mother started a relationship with Mr. S.G., a citizen of Mexico, which eventually led to their marriage in 2014 and her desire to move to Mexico City to live with her new husband. Mr. S.G. [ 27 ] Mr. S.G. came to Canada as a visitor in 2010 and during his stay in Vancouver he was arrested and charged with serious drug importation or trafficking offences. He maintained his innocence and the charges were stayed by the Crown in June 2011.

In the meantime, he lived with Ms. C.A. and R.L. until he voluntarily left Canada. In the interim he made a refugee application which was denied. [ 28 ] The mother wishes to relocate with the child R.L. to Mexico City to live with Mr. S.G. [ 29 ] The father objects to the relocation to Mexico City because he is concerned about Mr. S.G.’s background and character, having regard to the serious drug charges he once faced in Canada. Also, the father is concerned about Mexico City being a safe place for his daughter. [ 30 ] Mr.

S.G. addressed concerns about his character, background, and safety risks in Mexico City in his testimony. The evidence I heard persuades me that Mr. S.G. is considered a person in good standing for entry into Canada or the United States by border control agencies in each country. In June 2014 the U.S. government issued a Border Crossing visa card to Mr. S.G. permitting him entry to the United States. Similarly in July 2014 the Canadian government issued a Permanent Resident card to Mr. S.G. To obtain both credentials, he was required to undergo a thorough vetting including a criminal records check.

The drug allegations against him were stayed by the Crown and apparently have not been a barrier to his ability to travel to either Canada or the U.S.A. from Mexico. [ 31 ] Mr. S.G. presented documents and credentials to show that he is employed in Mexico City as a corporate lawyer for one of the largest labour unions in Mexico. He is affiliated with a national human rights organization, and is on retainer with an elected federal congressman in Mexico.

I accept that his employment income affords him a very high standard of living in Mexico City, including a luxury vehicle, a large rental residence in a protected enclave in southern Mexico City, and the ability to send the child to a private international bilingual (Spanish/English) school. [ 32 ] Mr. S.G. has testified that he loves Ms. C.A. and R.L. and wants to live with them and support them. He says R.L. is affectionate with him but he understands and respects that Mr. L.M. will always be R.L.’s father. [ 33 ] Mr.

S.G. has applied for permanent residence in Canada but faces the barrier of finding comparable employment with a commensurate income in Canada. He has been providing a generous monthly stipend to the mother with which she supports herself and R.L. The mother says that the child support payments by Mr. L.M. do not meet the child’s needs. Mr. S.G. has also financed the numerous trips the mother has made to see him in Mexico City and in Panama. R.L. accompanied her mother to see Mr. S.G. on several of those trips. [ 34 ] Ms. C.A. and Mr. S.G. were married in Mexico in January 2014. R.L. attended the wedding.

Their son, P.G. was born in Vancouver on October 29, 2014 and R.L. attended his baptism in Mexico. Ms. C.A. states that it is in the best interests of R.L. to live in Mexico City with her mother, baby brother, and step-father. She submits that there are many advantages available to R.L. within the nuclear family setting, and the disadvantage of not being with her father on weekend parenting can be addressed by regular Skype and phone calls, and her return to Vancouver for longer periods of parenting by him during her school vacations.

Child’s Safety and Security [ 35 ] I have considered whether it is inconsistent for the mother to have contended in 2007 in her Canadian refugee claim that Mexico was an unsafe place for her to be returned to and in 2015 it is no longer unsafe for her or R.L. [ 36 ] The mother says that the circumstances have changed significantly since 2007. First, she is planning to reside in Mexico City, some distance removed from Durango State. Since her relationship and marriage to Mr. S.G., she feels emotionally and financially secure to return to Mexico.

In recent years she has travelled to Mexico many times without incident, some with the child, and her fears concerning certain criminal elements in Durango, Mexico do not preclude her from living in a region she considers safer and in circumstances that are more secure. [ 37 ] The father contends that Mexico is objectively more dangerous than Canada, and Canada should be the preferred location in which to raise the child. [ 38 ] The court heard anecdotal and opinion evidence from various witnesses about how safe or not Mexico was as a nation.

No expert evidence was presented by which to calibrate or compare the safety and security of Canada or Mexico. [ 39 ] I do note there are geographic areas in Mexico that notoriously are said to be connected with criminal drug cartels and violence in those regions is highlighted from time to time in the social media.

Unfortunately, no nation is safe from the effects of criminal organizations, and no community including any in B.C. can be said to be totally immunized from criminal or gang violence. [ 40 ] However, I think it fair to say that there is a general public consensus that Canada is considered to be a safer place than Mexico in which to live on a macro level. But it is also fair to say that even in cities considered relatively safe in Canada, there are neighbourhoods considered to be unsafe or less safe. [ 41 ] Ms. C.A. and Mr.

S.G. were candid that there are neighbourhoods in Mexico City that locals consider less safe, but their proposed residence is in a middle-class enclave some distant away from the rougher areas, and well protected. [ 42 ] Moreover, R.L.’s father Mr. L.M. has himself returned to Mexico and visited Durango, the place from which the parents fled,

and recently wished to take the child there for a family visit. [ 43 ] On the issue of relative safety of Mexico, I find that there is no inconsistency between the mother’s 2007 refugee claim and her desire to return there in 2015. Her marriage to a highly educated, well-connected and successful Mexican national in Mexico City has changed her subjective views on her relative safety in living again in Mexico. That view is objectively supportable. Not only has she returned to Mexico on numerous occasions since meeting Mr.

S.G., she was wed there in 2014, had her son baptized there in 2015, and she has a good faith basis for wishing to make a life there with both her children. History of Parenting Arrangements [ 44 ] Over the course of R.L.’s life, having regard to her parent’s work schedules and their evolving living arrangements from married to separated and then divorced parents, I am satisfied that the primary parenting responsibilities over the years have rested with the mother. I accept that there was fluidity in parenting responsibilities in the child’s early years as one parent took over while the other worked shift-work.

But the evidence is clear that the parenting routine after separation placed the child predominantly in the mother’s care. The child lived with her mother during the school week, and the father parented initially three days a week, and more latterly on weekends from 2012 onwards. In 2014, after the notice of relocation was given, the father’s weekend parenting was extended by mutual agreement to run from Friday evenings to Monday mornings. [ 45 ] C.C. shared a residence with both the parents from 2008 to about 2011, and then with the father until 2013.

He described the mother having more day to day responsibilities for caring for the child in the child’s younger years.

After the parents’ separation when the child was five years old, the child lived primarily with the mother and spent weekends with her father. [ 46 ] As the mother established her fitness business, she was able to have more flexibility during the work week, and often was able to take the child to the fitness studio after school. [ 47 ] I find that over the child’s life the father has had substantial parenting time, but the parents do not have, and have not had, substantially equal parenting time, either presently or historically.

Since infancy, the mother has had greater involvement in the day to day parenting of the child, in both the amount of time and the quality of time spent with the child. [ 48 ] As for future parenting plans, the father will secure his diploma in information technology at BCIT in 2015 after which he hopes to find full time employment in the IT field. His 2013 income was $28,600 and he hopes to double it to the $65,000 range based on salary guides. Mr. L.M. was candid about the demands of juggling both a full time job and parenting responsibilities. [ 49 ] Mr.

L.M. has been in a three year relationship with R.C., and they have lived together since July 2013. Ms. R.C. works as a corporate compliance officer on a full time basis, and is studying to advance her certificate in Human Resources. Ms. R.C. was a sincere and credible witness, who described her relationship with Mr. L.M. to be strong and spoke with great caring and affection about R.L. [ 50 ] Ms. R.C. appears to be the main income-earner while Mr. L.M. completes his schooling. He hopes to find work weekdays on a full-time basis, and will co-parent R.L. with the assistance of Ms. R.C.

They concede it is highly likely that with each of them working full-time, it will be necessary to arrange for before or after school care for R.C. [ 51 ] If the mother wishes to relocate to Mexico City, Mr. L.M. is prepared to have the child reside primarily with him in Metro Vancouver. He has set up his home to make it a welcome place for his daughter. It was apparent that with his busy school and work schedule, the ideal parenting arrangement involves R.L. being jointly cared for by her mother and father, much in the same way they have done since separation in 2011. [ 52 ] The mother Ms.

C.A. offers a different parenting arrangement. She contends that in Mexico City she will be a stay-at-home mother, particularly while she is nursing a baby. She does not intend to work outside the home because Mr. S.G. is able to support the family on his income. She plans to return to British Columbia with the child at her expense during school vacations, and will fully encourage R.L. to maintain her relationship with her father when school is in session. [ 53 ] The documents and income information from Mr. S.G. do show that he makes a very good living as a lawyer in Mexico City. I accept Ms.

C.A.’s evidence that Mr. S.G. has been remitting monies to her to support her during her pregnancy and that he has contributed generously to some of R.L.’s expenses. I also accept Mr. S.G.’s evidence, supplemented by photographs and other documents, that he has secured good housing, and leased a luxury family vehicle in Mexico City. Through a family connection, he and Ms. C.A. have investigated educational opportunities at an international school for R.L. where the instruction will be in English and Spanish.

Although the schooling details were rather general, I am satisfied that a private bilingual school in Mexico City is likely to provide a good educational standard for R.L. [ 54 ] Ms. C.A. acknowledges that a new school will be a big transition for R.L., given her learning needs, but says that she will make it a priority to help R.L. She believes that with the support of her husband and their family connections, they will be able to help R.L. integrate to a new school setting. Reasons for the Proposed Change in Location and Parenting Proposals [ 55 ] It is not disputed that Ms.

C.A. has a legitimate reason for wishing to relocate to Mexico City. She has remarried, given birth to a son whose father lives in Mexico City, and her new husband can best provide for her, their son, and R.L. if they were all to join him in Mexico City. The mother proposes that if relocation to Mexico City is permitted, R.L.’s father would have parenting time with R.L. in Canada during:

a) Summer Recess holidays (school starts in August in Mexico)

b) Christmas holidays;

c) Two week Spring break in Mexico (April); and

d) Such other times as the court directs. [ 56 ] Ms. C.A. proposes that Mr. L.M. will be afforded regular telephone, text and Skype contact with R.L. She will return with both children to Vancouver to allow R.L. to be with her father and also to maintain contact with her brother during her school holidays. She would pay for and accompany R.L. on her flights to Vancouver and reside in Vancouver with her local friends during R.L.’s time with her father. [ 57 ] If relocation is not permitted, both parents agree that the primary residence of R.L. would remain with Ms.

C.A. under the parenting arrangements presently in place, with weekday parenting by Ms. C.A. and weekend parenting by Mr. L.M. [ 58 ] R.L.’s father did not appear to be insistent on primary residence if relocation of R.L.’s residence is not granted. The current joint parenting arrangement is suitable for him and fits in with his job and educational obligations. However, he would accept primary residence responsibilities in the event Ms. C.A. was not able to live in Vancouver and exercise her parental responsibilities here. The

Section 37 Analysis [ 59 ] I have outlined the key positions of the parties for the orders they seek and some of my findings of fact. I turn now to the specific factors under s. 37(2) of the Family Law Act . (

a) R.L.’s health and emotional well-being ; [ 60 ] R.L. is in general good health. She is described by all witnesses in glowing and affectionate terms as engaging, energetic, creative, and lively. [ 61 ] R.L. struggles with some subjects at school, particularly in English and Math. Spanish, not English, is her parents’ first language. The ESL assistance she requires at school likely flows from English not being the spoken language at home, compounded by being initially enrolled in a French Immersion school until transfer to the English school system.

Her delay is mild in that she is described as “approaching expectations” in reading and writing English. She requires ongoing assistance in math. [ 62 ] R.L.’s emotional well-being is connected deeply to the circle of people who are central in her life, as discussed under part (

c) below. (

b) R.L.’s views, unless it would be inappropriate to consider them ; [ 63 ] The child’s views have not been canvassed, either informally or through a “views of the child” report. (

c) The nature and strength of the relationships between the child and significant persons in the child's life ; [ 64 ] The evidence shows that R.L. is highly emotionally bonded to her mother, and has a strong attachment with her father. She appears to enjoy physical and creative activities with her mother and excels in them at school. Her father, together with his partner Ms. R.C., provide her with a good family environment on weekends, and with more concrete assistance with schoolwork, particularly in doing maths.

R.L. has a close and loving relationship with her father with whom she is very affectionate. [ 65 ] R.L. appears to have accepted without reservation her parents’ new partners and they have embraced her fully in their lives. She refers to Mr. S.G. as her “papa” and has known him as a steady presence in her mother’s life for over 4 years. She also has a very close and positive relationship with R.C., her father’s partner and her self-described “best friend”, with whom she has spent weekends over the last 2.5 years. I accept the opinion of Ms.

R.C. that R.L. sees her as a strong influence in her life, and they have a very loving relationship. [ 66 ] R.L.’s strongest affections lie with her parents, particularly so with her mother with whom there is an indelible mother and daughter attachment. R.L. was present in the birthing room during the birth of her brother P.G. last year. She is described as a devoted and enthralled older sister to the new addition to the family. [ 67 ] R.L.’s extended family on each of her parents’ side resides in Mexico. The father has family in Durango, as does the mother. The mother’s in-laws through her remarriage to Mr.

S.G. are in Mexico City and there is a strong network of aunts, uncles and cousins in the S.G. extended family. R.L. has travelled with her mother to holiday with Mr. S.G. on several occasions, and she also met and spent time with Mr. S.G.’s family in Mexico. She stayed with them while her mother was on her honeymoon, and expressed sadness at not being with her mother and missing her mother. [ 68 ] R.L. also enjoys visits with Ms.

R.C.’s brother in Chilliwack and is friendly with his two children. [ 69 ] On the whole, R.L. is happy, well-adjusted and sociable with people, especially once she becomes familiar with them. She has a warm and loving circle of extended family. (

d) The history of R.L.’s care ; [ 70 ] During the marriage, R.L. was in the care of each parent in accordance with their work and at-home schedules. The mother worked part time during the day and the father at nights, and each cared for the child whilst the other was at work. After separation in 2011, R.L. has lived with her mother during the school week and with her father on weekends, and more latterly on extended weekends from Friday evenings after school to Monday mornings.

R.L. has lived in two households since age 5. [ 71 ] During their respective parenting times, the mother’s work hours have been flexible enough to allow her to take R.L. to her fitness studio after school, and she has relied less on after school care than would be the case were R.L. to have lived with her father

during the school week. [ 72 ] The weight of the evidence supports a finding that although the father is a contributing and involved joint-caregiver of the child, the extent of his future availability to parent full-time, full-week is dependent on his employment prospects and schedule, and this remains an unknown element. Whatever line of work he attains, third-party child care will be required for R.L. [ 73 ] The mother, on the other hand, is on maternity leave at present, and does not intend to return to the workplace. Mr. S.G. has the financial means to provide for her, as well as for R.L. and P.G., if all were to live in Mexico. (

e) R.L.’s need for stability, given her age and stage of development; [ 74 ] R.L. has lived in two households and under a shared parenting week since 2011. She has made a good adjustment to changes brought by her parents’ marriage breakdown as well as the introduction of new partners in her parents’ lives. [ 75 ] She is still young enough, at age 9, to make a good adjustment to any significant change, if it is one that takes her emotional needs into account, and is carefully and sensitively implemented. (

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 ; [ 76 ] I am satisfied on the whole of the evidence that Ms. C.A. and Mr. L.M. each love R.L. fully and unconditionally, and each has demonstrated a knowledgeable understanding of their daughter’s needs and are able to exercise their parental responsibilities appropriately.

I am satisfied that they will not stand in the way of their daughter developing a full, rich and enduring relationship with the other parent, their partners, or extended family. [ 77 ] There has been some friction between the parents since Ms. C.A. gave the relocation notice to Mr. L.M. in 2013. There have been disagreements over requested changes in parenting schedules or travel, regrettably some where the child was caught in-between.

Given the period of generally peaceful collaborative parenting before 2013, and the ability of the parents since then to achieve consent orders for travel on terms, it may be that these disagreements are not truly indicative of the true sensibility of each parent. [ 78 ] I am satisfied that each parent has the capacity to do what is right and reasonable to properly exercise their own parental responsibilities and to allow the child to have the fullest relationship possible with the other parent. (

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 ; [ 79 ] Fortunately, there is no issue with respect to family violence directed either toward the child or the parent as required to be considered in subsection (

g) or (h). (

h) 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 ; [ 80 ] The parenting arrangements which require their cooperation have not and are not likely to increase any risk to the child or a family member. (

i) Any civil or criminal proceeding relevant to the child's safety, security or well-being . [ 81 ] There are no proceedings relevant to the child safety, security or well-being. Mr. S.G. has tendered evidence to show that he does not have a criminal record, and he is not considered an undesirable person for purposes of gaining his entry to Canada as a permanent resident or the United States as a permissible visitor. The “S.S.L. Inquiry” [ 82 ] Primary residence of the child with the mother in Mexico City would fulfil the mother’s desire to live with both her children in a unified family setting with her husband.

It would provide emotional stability and security for R.L. to grow up with her brother in a positive and encouraging environment. However, there are losses for the child in that she will not have the weekly intimate contact with her father and Ms. R.C., two people who are now an important part of her life. An ideal parenting arrangement would have her participate in the regular day to day life events of both her parents.

The ideal is an exceptional standard to attain in family life, and the law looks to what is reasonable and also in the child’s best interests. [ 83 ] If the father were to have primary residence of R.L. in Metro Vancouver, Ms. C.A. would have to shuttle between Mexico and Vancouver for each R.L. and P.G. to have parenting time with their fathers. This would be disruptive to R.L. who has been under her mother’s primary care since birth and destabilizing for the mother.

For reasons I have articulated, it is highly likely that the father’s work demands would require R.L. to be cared more significantly by non-family members both before and after school. [ 84 ] As for any prospect of shared parenting by both parents in Mexico City, it is apparent the father, Mr. L.M., has put down roots in Canada and will lose the fruits of his efforts to integrate into Canadian society should he move to Mexico City to share parenting. He has no family connections in Mexico City and his job prospects in information technology are unknown. Ms.

R.C. is well established in her employment here and her faith-based community is central to both of them. It is not viable for Mr. L.M. and Ms. R.C. to leave Canada for Mexico in order to share parenting of R.L. with her mother in Mexico City. [ 85 ] On the other hand, if Ms. C.A. remains in Metro Vancouver to maintain shared parenting with Mr. L.M., she will have to consider how viable it would be for her husband, Mr. S.G., to live with her in Vancouver. [ 86 ] It is a fair inference that if the mother remains in Vancouver, the choices would be for Mr. S.G. to come to Vancouver and

become accredited as a lawyer or seek employment in a field other than his professional one, and earn a greatly reduced salary. His last work experience was in the kitchen of a restaurant in Vancouver. If Mr. S.G. is underemployed, Ms. C.A. will to have to work outside the home to support the family while Mr. S.G. integrates himself into the Canadian workplace. It is likely that there will be great financial pressures on the mother if she and Mr.

S.G. were to live in Vancouver, because she would be responsible for household expenses for a family of 4, including child care for an infant and a young school age girl, as well as her husband. [ 87 ] Alternatively, Mr. S.G. could remain employed in Mexico City and live apart from Ms. C.A. and the children.

He is likely to send a lower amount of support, because he would be maintaining a household in Mexico City and one in Vancouver, and funding the costs of travelling between the two. [ 88 ] It is my conclusion that if the mother were to reside in Metro Vancouver and parent both R.L. and P.G., it would be difficult financially and emotionally for her to be the primary earner having responsibilities for an immigrant husband, a newborn and her daughter.

On the other hand, R.L.’s bond with her mother is so strong that it would be contrary to her best interests for her to be living apart from her mother. [ 89 ] The evidence is abundantly clear that from an economic standpoint, the parents cannot share parenting of R.L. in Mexico City because it is not viable for Mr. L.M. to change location. Continuing with shared parenting of R.L. with both parents in Metro Vancouver will place significant further burdens on Ms. C.A. to shoulder the child-care and earning responsibility for two children, and if Mr.

S.G. joins her, for a spouse as well. [ 90 ] Remaining in Vancouver also places Ms. C.A. in the difficult position of choosing which child will maintain a regular in-person relationship with the father, whether it is R.L. with Mr. L.M. or P.G. with Mr. S.G. In sum, Ms. C.A. has better prospects, both emotionally and economically, if she were to live in Mexico City and worse prospects if she were to live in Metro Vancouver.

Summary of Key Findings [ 91 ] By all accounts R.L. is described as happy, smart, curious, creative, charming, affectionate, sensitive, and loving. She is extremely attached to both parents, and has built emotional connections with the father’s common law spouse R.C. and her step-father, Mr. S.G. [ 92 ] Her father has been a devoted and caring parent but on the whole of the evidence I am satisfied that the stronger emotional bond lies between R.L. and her mother. The evidence shows that Ms. C.A. takes the lead in making key parenting decisions, and involves R.L. in a happy social life and circle of friends.

Many witnesses who attended trial spoke of their friendship with Ms. C.A. and the closeness of mother and child. [ 93 ] Most of the extended family on all sides lives in Mexico, either in Durango or Mexico City. There are positive ethno-cultural ties for the child based on her Mexican heritage and her parents’ place of origin. On the other hand, the child’s Canadian nationality and citizenship is much valued and one that each parent endured hardship and sacrifice to attain for themselves and for R.L. A strong connection to both places is in R.L.’s best interest.

Fortunately for R.L., I am satisfied her connection to Canada will be maintained by both her parents. [ 94 ] R.L. speaks Spanish fluently, but will require assistance in reading and writing in Spanish and English in the Mexican school system. She is behind her age cohorts in Canada in reading and writing English. Starting a new school in Mexico City, with a different curriculum, will be a challenge for her. She has already faced transitions from home to French Immersion and then to an English language school and has not reached expected levels in reading and writing as a result.

Careful attention will need to be paid to her schooling going forward in either country. I am satisfied that good educational standards for R.L. can be met in either country. [ 95 ] R.L.’s step-father is a well educated and highly successful lawyer with excellent connections and economic prospects in Mexico City. He is able to provide an economically secure lifestyle for R.L. and her mother in Mexico City. R.L.’s mother has the flexibility to be a stay-at-home parent while she nurses infant P.G. and she will be able to help transition R.L. to her new school and home environment. The economic prospects of Ms.

C.A. having to raise two children in Canada, without the emotional and physical presence of her husband, or without his ability to provide for the family to his full capacity in Canada, are much more concerning and this factor weighs significantly in favor of the relocation. It is in R.L.’s best interest to have both an emotionally healthy mother and a financially secure environment in which to grow. [ 96 ] One significant factor in this matter is R.L.’s age. She is not a child of tender years whose relocation could irreparably impair the development of a close bond with a biological father.

At 9 years of age, she understands intellectually and emotionally who her father is, and that his affection for her is secure. That paternal affection and connection, and the father-daughter bond, is capable of being preserved without both parents living in the same city. [ 97 ] Having considered the evidence carefully, and understanding the importance of Mr.

L.M. in R.L.’s life, I have come to the difficult conclusion that R.L.’s interests are best met with primary residence with her mother and her brother P.G. in circumstances where the burdens and benefits of parenthood are shared by her mother with her new husband, Mr. S.G., in Mexico City.

Although it is vital that R.L. maintain a solid relationship with her father in Vancouver, whom she loves, that objective can be met with provisions that will help preserve the father-daughter bond. [ 98 ] In my view, R.L.’s best interests include building a sibling connection with her baby brother P.G., in the family unit in which he belongs and will be nurtured. The best place for R.L. is therefore with her mother if the mother chooses to reside in Mexico City.

I conclude that, on balance, the weight of the evidence shows that it is in R.L.’s best interests to permit her relocation to Mexico City. [ 99 ] I therefore grant the application of Ms. C.A. to change the child’s residence from Metro Vancouver to Mexico City on the following terms and conditions: 1. This court confirms that Ms. C.A. and Mr. L.M. are guardians of R.L. under s. 39(1) of the Family Law Act .

2. In the event of the death of a guardian, the surviving guardian will be the only guardian of the child. 3. The mother may exercise all the parental responsibilities set out in s. 41 of the Family Law Act including but not limited to : (

a) making day to day decisions affecting the child and having day to day care, control and supervision of the child; (

b) making decisions about where the child will reside; and (

c) making decisions about the child’s educational, cultural, medical, religious and spiritual upbringing. 4. Each guardian will have the obligation to advise the other guardian of any matters of a significant nature affecting the child. 5. The guardians will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions and if the guardians cannot reach agreement on a significant decision despite their best efforts, Ms. C.A. will be entitled to make those decisions and Mr.

L.M. will have the right to apply for directions on any decision he considers contrary to the best interests of the child, under s. 49 of the Family Law Act . 6. Ms. C.A. may change the residence of the child from Vancouver, B.C. to Mexico City, Mexico effective on or after July 24, 2015. 7. The child’s primary residence will be with her mother Ms. C.A. during the child’s school year commencing in August 2015 and thereafter until further court order. 8. The primary residence of the child in Canada during her school holidays will be with her father, Mr. L.M. 9. In advance of the start of each school year Ms.

C.A. shall advise Mr. L.M. in writing of R.L.’s school

schedule and school holiday

schedule for the upcoming school year and record with the school authorities Mr. L.M.’s name and address as a contact parent for the child. 10. The mother shall provide to the father copies of the child’s medical and educational records from Mexico as may be requested by the father from time to time. 11. Each guardian will cooperate with the other guardian in the provision of passports, consents to travel, and other necessary documents as may be required to allow the child to travel between Canada and Mexico. 12.

During the school year, the mother shall encourage and facilitate telephone, skype or other forms of direct voice or face to face telecommunication between the child and the father at least two times a week, on days and at times requested by the father. 13. The father shall have parenting time during the child’s major school holidays, including Christmas, Spring Break and Summer recess, during which time the child’s primary residence will be with her father in Metro Vancouver. Ms. C.A. may have parenting time of one overnight every 7 days or as otherwise agreed when the child is in Canada. 14.

The cost of return travel of the child from Mexico to Vancouver will be borne by the mother, subject to the availability of child support payments to fund such travel as discussed below. 15.

The father remains liable to pay basic child support after 1 July 2015 in the amount set out in the Federal Child Support Guidelines , in accordance with his annual guideline income, but the monthly payments will be set aside by him and applied towards the annual cost of his travel to and lodging in Mexico for the purpose of having additional parenting time with the child, as set out below, which time may not be unreasonably withheld by the mother. 16.

In addition to the child’s major school holidays, the father may have up to 7 additional days parenting time with the child in Mexico City or elsewhere in Mexico, provided he gives no less than 60 days’ written notice to the mother in advance of his travel to Mexico. The cost of this travel will be borne by the father and shall be funded through his obligation for child support payments. 17.

In the event the father is not able to travel to Mexico before the end of any calendar year (December 31) due to his work or other responsibilities, the child support payments for that year are immediately due and payable to the mother for the benefit of the child and may be used by her to pay for some or all of the child’s travel between Canada and Mexico in the next calendar year.

In the event there is any disagreement as to which parent shall bear any particular travel cost, the mother shall not hold back the child from visiting her father, and must pay for travel of the child pending a court determination of financial responsibility. 18. The father will be required to provide an accounting of the basic child support due under the child support guidelines at the end of each calendar year starting in December 2015, in accordance with his annual guideline income, and an accounting of any travel costs borne by him.

Also starting in 2015, the father shall provide to the mother a copy of his CRA Notice of Assessment and a copy of his filed income tax return by June 15, 2015 and on June 15 each year thereafter so long as the child is entitled to child support under the Family Law Act . The parties shall keep records and receipts for the cost of any travel of the child to see the father, or the father to see the child, to or from Mexico. _____________________________

The Honourable Judge H.K. Dhillon Provincial Court of British Columbia