A.G.(1) v. R.L. Date:, 2015 BCPC 369

Citation: A.G.(1) v. R.L. Date: 20151209 2015 BCPC 0369 File No: 12540 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A.G.

(1) APPLICANT AND: R.L. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.R. HARRISON Appearing on their own behalf: A.G.

(1) Counsel for the Respondent: Mr. David Dundee Place of Hearing: Kamloops , B.C. Dates of Hearing: April 28, 29, 30, May 4, 5, June 17 and 18, 2015 Date of Judgment: December 9, 2015 [ 1 ] This is an application by A.G.(1) to vary an order issued by Judge Pendleton made March 11, 2009 to allow her to relocate with her child A.G.(2) to Grande Prairie, Alberta. The application is opposed by the father, R.L. [ 2 ] A.G.(2) was born [omitted for posting]. She is now 9 years of age. After the 2009 hearing, Judge Pendleton the parties joint custody and joint guardianship under the Family Relations Act .

The order also made provision for child support by R.L. Judge Cleaveley of this court has detailed the child support history in the reasons provided on his support order made January 23, 2015. [ 3 ] In 2009 Judge Pendleton directed that neither party could change the residence of A.G.(2) from Kamloops, British Columbia without the written permission of the other parent or further court order. A.G.(1) seeks a change to that term of the order and permission to relocate to Grande Prairie, Alberts. The History of the Family [ 4 ] A.G.(1), after an estrangement from her parents, moved to Fort St.

John from Nova Scotia in 2004. She met R.L. there the same year and the couple commenced a relationship. By December, 2005 A.G.(1) had become pregnant, resulting in the birth of A.G.(2). In 2006 they married. [ 5 ] A.G.(1) gave evidence that during the pregnancy R.L. suffered a drug relapse. A.G.(1) had difficulties with the pregnancy and at one point was admitted to hospital. R.L.’s sister moved to Fort St. John to assist the couple. A.G.(1) said that R.L.’s drug use got worse.

I accept that he lost his job and that the couple were unable to pay the rent. [ 6 ] A.G.(1) and R.L. moved to Kamloops where his family resided. They arrived in Kamloops just before A.G.(2) was born in [omitted for posting] and were put up by R.L.’s mother, W.M. [ 7 ] A.G.(1) said she would have preferred to stay in the north rather than go to Kamloops, but they were running out of options. She said that R.L. was drug addicted, she was pregnant and they had no money. They had no one to turn to but his family.

She said she has felt trapped in Kamloops ever since. [ 8 ] W.M.’s support to A.G.(1) and R.L. pre-dates A.G.(2)’s arrival. Her support has made a difference in the circumstances enjoyed by the parties and has been to the benefit of A.G.(2). A.G.(1) has stated that the that the uncritical and unwavering support of R.L.’s family over the years has helped him to avoid dealing with his responsibilities and his problems, including his substance abuse issues. R.L. counters that he has dealt with these issues and does not abuse drugs or alcohol.

R.L. characterised his substance abuse pattern as consisting of months of sobriety followed by periods of bingeing. [ 9 ] On arriving in Kamloops, R.L. attended Narcotics Anonymous. He remained off the drugs for “probably a good year” according to A.G.(1), before a further relapse. A.G.(1) said she wanted their new family to get a home of their own but she said that R.L. refused to leave his mother’s place as they had everything they needed in his view. [ 10 ] A.G.(1) was regularly employed. When A.G.(2) was small, A.G.(1) worked a graveyard shift as a cleaner at [omitted for posting] while R.L. worked days.

A.G.(1) looked after A.G.(2) during the day and R.L. served that role at night. [ 11 ] The couple separated when A.G.(1) moved out. In 2008, A.G.(1) commenced an action for divorce. [ 12 ] A.G.(1) said that R.L. suffered another drug relapse at that time. The care of the child was then being shared between A.G.(1), R.L., W.M. and her daughter.

When R.L. was actively using drugs, he would disappear for up to a week at a time, she said, surfacing to shower and eat. [ 13 ] R.L. then booked himself into a residential attendance program for substance abuse but left after two months into a three month rehabilitation program. He was likely asked to leave for failure to abide by the rules. A.G.(1) collected him and brought him back to Kamloops. [ 14 ] In 2009, R.L. found a new partner, a woman named H., with whom he began a three year relationship. In 2010, R.L. left his mother’s home and moved into a home with H. She was very much present in A.G.(2)’s life.

After some initial trepidation, A.G.(1) came to accept H.’s presence as a positive influence in her daughter’s life. Eventually A.G.(1) and H. became friends. [ 15 ] R.L.’s education stopped short of high school graduation. He worked as a labourer. When A.G.(2) was young R.L. was employed at a trailer manufacturer and later at a truss plant. A.G.(1) said she spoke to him about child support but he said he was unable to help. A.G.(1) asked for assistance with specific expenses such as gymnastics and swimming lessons.

A.G.(1) found R.L.’s lack of support disappointing. [ 16 ] A.G.(1) began work at a banknote company in Kamloops after the cleaner’s position at [omitted for posting]. The banknote plant closed after she was there a year. A.G.(1) took her next job at a Kamloops restaurant, first as cook and later as manager. While working there in 2009 she met her present partner and fiancé, J.L. That job ended in 2012 when the restaurant closed. The relationship with J.L. continued. A.G.(1) has worked full time at another Kamloops restaurant since 2012.

[ 17 ] By mid-2011, R.L. had ended his relationship with H. and began a relationship with his current partner S.S . Since September, 2011, S.S. has lived with R.L. and with A.G.(2) when she is in R.L.’s care. Though A.G.(2) was upset when H. left her father’s home, she and S.S. get along very well and have formed a bond. Both of R.L.’s partners have been capably involved with the care of A.G.(2). [ 18 ] S.S. is regularly employed as a full time clerk at [omitted for posting]. She has a stable income, good benefits and some seniority.

A.G.(2) also gets along well with S.S.’s extended family, who are a large sociable group. [ 19 ] Since 2011 at least, A.G.(2)’s care has been shared between R.L. and A.G.(1) on an approximately equal basis, though arrangements tended to be made on the fly according to A.G.(1)’s needs and work schedule. R.L. has recognized A.G.(1) as A.G.(2)’s predominant care-giver in fact and has accepted that. [ 20 ] There have been sources of conflict between the parties, sometimes due to differences in parenting styles.

Communications around arrangements for A.G.(2) have been unnecessarily problematic at times, with the parties each blaming the other for being unreasonable. Friction resulting from the ad hoc access arrangements was reduced when the exchanges were set on a week-on, week-off basis. [ 21 ] Since 2012, A.G.(1) has rented out the basement of a house owned by R.L.’s mother, W.M., at a generously discounted rent. For some time this arrangement worked well, with A.G.(1) and A.G.(2) living downstairs, and W.M. and A.G.(2)’s aunt living upstairs.

A.G. (2) would go upstairs to visit her grandmother whenever it suited her. [ 22 ] A.G.(1) gave evidence that she found relations had become awkward and strained between her and W.M. as litigation progressed. The result has been that A.G.(2) uses the stairs between the suites much less frequently and has seen much less of her grandmother and aunt. I am of the view that this estrangement is in accordance with A.G.(1)’s wishes. [ 23 ] R.L. took an employment position with an industrial cleaning company, sand blasting industrial tanks.

This was work R.L. had previously done in the north-east of the province. [ 24 ] R.L. left that employment for a position at a Kamloops chip and salsa manufacturer. R.L. left that food manufacturing job after telling his co-workers and employers that he was leaving because, among other reasons, his mother had died. This large lie was inexplicable by R.L., though he tried in evidence. The lie was discovered when A.G.(1) began working for the same manufacturer. W.M. remains in good health.

R.L.’s reliability and credibility, however, is in a poorer condition for that. [ 25 ] R.L. earned income in the range of $25,000 to $30,000 per year until the more recent decline in income due to ill-health. R.L.’s employment record has been uneven and his unwillingness or inability to adequately support his child has impacted A.G.(2). Financial support of his daughter has not been a priority in his affairs. [ 26 ] Although R.L. hopes to re-train and re-join the work force, his ability to do so will be in question due to the health limitations discussed below. He is not able to be on his feet for a work day.

The Health of R.L. [ 27 ] R.L.’s drug problems go back to his teenaged years. He made good money when he worked in Fort St. John with A.G.(1) but he lost his employment and accommodation, I’m satisfied, due to his cocaine use. [ 28 ] He has been in a residential treatment program in 2008 but was asked to leave before completing the program. R.L. says he has never used drugs when caring for A.G.(2). R.L. said that he is free of cocaine though he relapsed when he broke up with H. He no longer drinks alcohol but holds a medical marijuana licence. [ 29 ] R.L. described himself as a frail diabetic.

He was diagnosed with diabetes mellitus, Type 1 when he was 19. He is of course insulin dependent and has had difficulty controlling his blood sugar levels. [ 30 ] R.L. was hospitalized for diabetic complications in 2011, 2014 and again in 2015. This last admission took him into intensive care. Over the same period he was admitted for depression and “a very poor attempt” at suicide. This was not the first time R.L. had been suicidal. R.L. said his prescribed medications have assisted him significantly with his depression. [ 31 ] Dr.

Reid, R.L.’s physician, confirmed by an exhibited letter that R.L. has suffered diabetic complications, particularly neuropathy or nerve damage. This had developed quite suddenly and severely in 2014 and 2015. R.L. suffers from bilateral carpal tunnel, chest neuropathy, severe bilateral foot neuropathy which causes difficulty with basic daily activities, as well as depression and possible gastro paresis. [ 32 ] R.L. had of course been seen by Dr. Reid as well as a psychiatrist, an ophthalmologist, the diabetes clinic, a neurologist and a pain management specialist.

R.L. was then awaiting referrals to a diabetes specialist and a gastroenterologist. He said it had taken him six to eight months to find the level of medical support he now has in place and he is concerned to maintain those arrangements. [ 33 ] Dr. Reid commented that he did not see R.L.’s condition as an impediment to his skills as a parent. [ 34 ] R.L. also gave in evidence that he was in the process of applying for a persons with disability pension and for the disability tax credit.

He did not know the value of the pension but he expected something in the range of $900 to $1300 per month, certainly a reduction from his previous employment income. R.L. estimated that S.S.’s medical benefits plan contributed about $800 per month to his prescription costs. R.L. said they made do with the help of S.S. and that A.G.(2) didn’t go without. [ 35 ] R.L. said he used to be very active but was reduced in the activities he could undertake with A.G.(2) due to painful foot neuropathy. He can no longer play sports with her but could walk the dog around the block.

He said household chores were divided between himself and S.S., with A.G.(2) helping out when she was there.

[ 36 ] R.L. said he was prescribed a range of medications to manage pain, sleep and depression. The medications were closely monitored, R.L. said. [ 37 ] A.G.(1) was of the view that R.L. became better at managing his diabetes after the 2011 health episode. However, she expressed concern for the worsening impact of R.L.’s chronic illnesses upon him. Her concerns included his failing physical capacity, his difficulty sleeping and what she saw as his inability to rise in the morning when required.

She said it was apparent that R.L. needed S.S.’s help in looking after A.G.(2). [ 38 ] A.G.(1) expressed concern about R.L.’s condition going forward and asked pointedly what young child deserves to watch her father slowly fade away. I address this concern below. [ 39 ] Dr. Reid described R.L. as unable to work but working hard to manage his diabetes. R.L. hopes to retrain and seek employment that will be more suitable to his condition. The Views of A.G.(2) [ 40 ] A.G.(2)’s views have come before the court by a variety of means.

A.G.(1) and several collateral witnesses gave evidence that A.G.(2) had stated that she wanted to move to Grand Prairie from Kamloops. A.G.(1) gave evidence that she travelled with A.G.(2) about four times a year to Grand Prairie and that A.G.(2) was familiar with the town and was close to her maternal relatives there, including her cousins. [ 41 ] Both Ms. B. and J.L. confirmed that A.G.(2) had expressed her excitement at the prospect of moving to Grand Prairie. [ 42 ] Ms. B. also said A.G.(2) had expressed her desire to have R.L. and his family move to Grand Prairie too.

A.G.(2) has expressed her concern about her father’s health and has been in tears over it. [ 43 ] A.G.(1) said that in 2013, when A.G.(2) would have been 6 or 7, A.G.(2) said she wanted to talk to her dad about moving to Grand Prairie. A.G.(1) told A.G.(2) she could talk to her dad about it but only when A.G.(1) was present. One day, while getting ready to take A.G.(2) to her dad, A.G.(2) told her mom that she wanted to talk to her dad about moving to Grand Prairie.

A.G.(1) described what followed and said that this expression of A.G.(2)’s wishes has driven her application to relocate. [ 44 ] R.L., A.G.(1) and their daughter sat on the couch and A.G.(1) said she asked A.G.(2) what she wanted to say to her dad about Grand Prairie. A.G.(2) told her father that she wanted to go to Grand Prairie to live, that she loved him and that they could visit whenever he liked. They could Skype or FaceTime and she would call him every night.

A.G.(2) understood that she could visit Kamloops and her family in Kamloops could visit there. [ 45 ] On hearing this, A.G.(1) said, R.L. became emotional and cried. A.G.(2) later told A.G.(1) that she had felt horrible as her father had cried all that day and into the night. A.G.(1) said she felt awful. A.G.(1) said A.G.(2) told her that she would never bring up the subject of relocation again with her father. As far as A.G.(1) knew, A.G.(2) never did.

R.L. later told A.G.(1) that he considered this episode to have been a manipulation by A.G.(1) [ 46 ] R.L. recalled the same meeting when A.G.(2) told him that she wanted to move to Grand Prairie. A.G.(1) encouraged A.G.(2) to speak. He said A.G.(2) seemed upset, reserved and “tightened up” when she told him, “Dad, I want to go to Grand Prairie.” R.L. said he told her he wasn’t mad at her. She told him that there would be things like ballet she could do in Grand Prairie.

R.L. recalled that he became emotional and withdrew from the conversation. [ 47 ] R.L. observed that A.G.(2) doesn’t like to hurt anyone’s feelings. She hasn’t brought up the topic with him since or expressed to him any desire to move. R.L. takes the view that in any event it is not up to a young child like A.G.(2) to determine where she should live. [ 48 ] The parties commissioned a voice of the child report with Ronald J. Smith, Q.C. Mr. Smith’s report followed a November, 2014 interview he conducted with A.G.(2) in Kamloops.

He reported that she tended to give brief answers to his questions but responded firmly and appropriately to his questions. She said that her parents had not told her what to say. [ 49 ] A.G.(2) advised Mr. Smith that she had been residing one week with her mother and one week with her father and his girlfriend, with whom she got along well. A.G.(2) said that this week-on, week-off arrangement had reduced friction between the parents on parenting time arrangements. She said that her parents were mostly pleasant with each other and that this

schedule had helped. [ 50 ] A.G.(2) had no difficulty telling Mr. Smith that “I want to go to Grande Prairie. Mom says she wants to go if I want to.” A.G.(2) also said her mother told her that “if you don’t want to move, then I will stay here.” A.G.(2) said she wanted to move to Alberta because her mom’s family was there and she, A.G.(2), had more family there than in Kamloops. [ 51 ] Mr. Smith asked A.G.(2) if she could think of any negative things about Grand Prairie and A.G.(2) mentioned tornadoes. He then noted at paragraph 28: She told me “I would miss my dad, my grandma, my aunt and all the pets.

Still I would rather move to Grand Prairie.” [ 52 ] At paragraph 32 and on, Mr. Smith reported the following exchanges with A.G.(2):

I said, “If you had a magic wand and could be granted a wish, what would that be?” She replied, “All my family could be here.” I asked if there was anything A.G.(2) would like to say to her parents. She replied that all her parents could be here. To the question if there was anything she’d like to say to the Judge, she replied: “I would like to move to Grand Prairie and I would like all my family here to move to Grand Prairie.” A.G.(1)’s Case [ 53 ] A.G.(1) takes the position that there has been a significant change of circumstances since Judge Pendleton’s 2009 order was made.

She says that R.L.’s health has become fragile and his capacities weakened due to his Type 1 diabetes, sleep disorders, depression and substance abuse. A.G.(1) also says that since the order of Judge Pendleton, R.L. has never made work and child support a priority and this has put her in a difficult situation financially over the years. She acknowledged the support that R.L.’s family has provided to her and to A.G.(2).

A.G.(1) acknowledged that despite R.L.’s problems, her daughter has a good relationship with him. [ 54 ] A.G.(1) has an opportunity to move to Grande Prairie, Alberta with her partner and fiancé, J.L. Members of A.G.(1)’s immediate family live there and she sees them several times each year. It is anticipated by both A.G.(1) and J.L. that they would both enjoy a significantly improved standard of living in Alberta over Kamloops due to the better paying jobs they expect to have there, even taking into account the recent downturn in the oil and gas industry.

J.L., an experienced oil and gas pipe tester, said he has far better employment opportunities in Grande Prairie. [ 55 ] Grande Prairie is a good distance from Kamloops, a nine or ten hour drive. There is no question that this travel distance must significantly reduce the time that A.G.(2) will be able to spend with her father over the current arrangement. [ 56 ] A.G.(1) says that reasonable and workable arrangements can be put in place to ensure that A.G.(2), residing principally in Grand Prairie, would see her father at long summer, spring and Christmas vacations.

A.G.(2) would spend the school year with her mother and the bulk of summer vacations with R.L., except for the last week of holidays in preparation for A.G.(2)’s return to school. A.G.(1) said that R.L. could have A.G.(2) over Christmas with a switch “once in a while”. [ 57 ] A.G.(1) has stated her willingness to share transportation costs and says she is prepared to fly with A.G.(2) to Kamloops if winter roads are difficult.

She says she is determined to make this work. “I’ll ensure she gets to see him,” A.G.(1) said. [ 58 ] A.G.(1) also allowed for the possibility of future change and said that at age 12 or 13, A.G.(2) might choose to return to school in Kamloops. [ 59 ] Ms. B. is a friend of both A.G.(1) and J.L. Ms. B. has observed and commented on A.G.(1)’s parental capabilities and her dedication to her daughter. J.L. also gets on well with A.G.(2). [ 60 ] A.G.(1) has mended her relationships with her family.

She describes strong family connections in that part of Alberta, with her mother, T.M., her sisters, brother and A.G.(2)’s cousins. Her family is willing to assist her in a variety of ways. T.M. has a four bedroom home and would be able to provide accommodation for A.G.(1) and A.G.(2) in the course of settling in. T.M. also said she would open her home to R.L. and his family should they choose to visit A.G.(2) or need a place to stay in Grand Prairie. [ 61 ] T.M. agreed that Grand Prairie holds more and better employment options for both A.G.(1) and her partner.

She was of the view that this would continue to be the case despite the recent slump in the oil and gas industry in Alberta. T.M.’s fiancé is a manager at an energy firm and has undertaken to assist A.G.(1) in finding work. [ 62 ] A.G.(1) emphasised that she has been the principal care-giver to A.G.(2) over the years, a point conceded by R.L. She underlined that R.L. has never been able to care for A.G.(2) on his own for any extended period and that he has consistently required the assistance of others including his mother, his sister and his common law partners to look after A.G.(2).

R.L. acknowledges that he has had the assistance of his family and his partners in caring for A.G.(2). [ 63 ] By contrast, A.G.(1) said that her support circle in Kamloops is very small, despite the years she has spent in Kamloops, and doesn’t extend beyond her partner, J.L., and her friend CJ. She has no family in Kamloops. [ 64 ] A.G.(1) has expressed her concern that R.L.’s serious and chronic health problems have restricted his ability to capably care for A.G.(2).

She articulated particular concerns regarding the drugs prescribed for his treatment, including the daily use of narcotics, including hydromorphone, and the use of medicinal marijuana. She submitted that his assertion that he is never impaired or intoxicated when caring for or driving A.G.(2) in his vehicle is not worthy of credit. She pointed to a May, 2013 roadside driving prohibition admitted by R.L.

It was not suggested that A.G.(2) was present on that occasion. [ 65 ] A.G.(1) said that at one point, after R.L. commenced his relationship with S.S., he appeared to agree that a move to Grand Prairie might be a good thing for him too. Whether that was the case, and it is denied by R.L., it is apparent that R.L. does not consider that an option now. R.L.’s Case [ 66 ] R.L.’s position is that A.G.(2) has spent her entire life in Kamloops and that she has had her paternal relatives in her life for as long as she can remember.

R.L. recalled that the first discussion he heard about A.G.(1) moving to Grand Prairie with A.G.(2) was in 2008 after they separated. R.L. sought and obtained the order from Judge Pendleton restricting A.G.(2) moving from Kamloops by the

parties. [ 67 ] R.L. said that A.G.(1) spoke to him from time to time of a move to Alberta after Judge Pendleton’s order was made, but he never gave her reason to believe he would go or consent to moving A.G.(2) there. However, R.L. allowed that he got tired of saying “No” to A.G.(1) and that he asked to her to draw up a proposal on a move to Grand Prairie. A.G.(1) did so in writing. R.L. said he read it and told A.G.(1) he would not agree. [ 68 ] In their discussions R.L. said that A.G.(1) told him that there were better jobs there and her family would help him stay and find work.

She told him there was more money to be made there. He didn’t find that appealing and summed up his view as “Make more money, spend more money”: they had worked up north before and hadn’t come back rich. He said that he had been making up to $5,000 per month in Fort St. John. [ 69 ] R.L. said that A.G.(1) had asked him why he was keeping them in Kamloops. The only reason they were in Kamloops was him, she said. She told him that she would forgive his arrears of maintenance if he agreed to the move.

In the event, no agreement was reached and those support issues were ultimately dealt with by Judge Cleaveley after a hearing earlier this year. [ 70 ] Whatever the advantages there might be of living in Grand Prairie with one parent, he said, it cannot compare with the benefits of being raised by both parents on a week-on, week-off basis.

R.L. said that although there are disagreements between the parties, that A.G.(1) does not always consult him with respect to A.G.(2), or consider his views when she does, they manage to provide an environment where A.G.(2) is clearly thriving. [ 71 ] R.L. gave some thought to what parenting time might look like in the event that A.G.(2) was moving between Kamloops and Grande Prairie. He agreed that the focus would have to be on visits over the summer vacation, spring break and Christmas visits as well as regular contact by Skype or FaceTime.

He said he would be prepared to share the driving for A.G.(2), either meeting half way or alternating trips. He noted that A.G.(2) is too young to travel by bus on her own. [ 72 ] R.L. accepted that A.G.(2) would like it if he moved to Grande Prairie too, but he considered that was a practical impossibility given his family, financial and medical circumstances. His Kamloops network of physicians and specialists has taken months to come into place. His partner, S.S., on whom he depends in many ways, has a good job with good benefits which extend to R.L. She has seniority which cannot be transferred to Alberta.

The Law [ 73 ] Relocation applications are frequently challenging, difficult and at times even agonising cases for courts to determine: S.S.L. v. J.W.W. , 2010 BCCA 55 , at paragraph 22 . In L.L.J. v. E.J. , 2013 BCSC 1233 at para. 18 , Master Keighley stated the following: For good reason, the prospect of a relocation application invokes something akin to dread in some members of the court. Almost inevitably, someone’s heart is broken, no matter what the outcome of the application.

If the party seeking to relocate is denied permission, plans are shelved, opportunities are lost and the overall welfare of the family, beyond considerations strictly concerned with the best interests of the child, are compromised. If the application is allowed, the party left behind struggles to maintain a relationship with the child often at considerable distance and expense, frequently in circumstances of modest means… [ 74 ]

Part 4, Division 6 of the Family Law Act governs relocation applications by a guardian of a child.

Section 69 sets out 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. [ 75 ]

Section 37 requires that: 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. Analysis [ 76 ] In the case at bar, it is not in issue that the parents have had substantially equal parenting time with the child. In such cases s. 69(5) of the FLA requires that the relocating parent satisfy the court of those factors set out in s. 69(4)(

a) and that the relocation is in the best interests of the child. [ 77 ] The s. 69(4)(

a) factors are (1) that the proposed relocation is made in good faith, and (2) that 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. A.G.(1)’s Good Faith [ 78 ] Counsel for R.L. properly agrees that the relocation application here is made in good faith. In determining good faith, the court is required to consider all relevant factors including those set out in s. 69(6). [ 79 ] Those s. 69(6) factors are (

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.

[ 80 ] The reasons provided by A.G.(1) for the proposed relocation included her reasonable if not guaranteed expectations of better and more remunerative employment. If that expectation comes to fruition, A.G.(1) will be better able to provide for the financial needs of her daughter. This factor takes on greater significance if R.L.’s income remains at a reduced level. [ 81 ] A.G.(1) also justified the move on the basis that she will be closer to her family who will be involved more regularly in A.G. (2)’s life.

Lastly, A.G.(1)’s fiancé J.L. has employment available in that part of Alberta which would pay him better than his work here and would enable the purchase of a house for the family to live in.

It would be expected that there would be benefits both directly and indirectly in the event of the move. [ 82 ] Taking these considerations together, and bearing in mind that there are no certain outcomes with people’s plans and aspirations, I consider that there is a reasonable likelihood that the proposed relocation would enhance the general quality of life for both A.G.(2) and A.G.(1), including emotional well-being and financial opportunities. [ 83 ] There is no issue with respect to the provision of notice to relocate. [ 84 ] There is, finally, a restriction on relocation contained in the order of Judge Pendleton made six years ago.

That order has been followed. Much has changed since Judge Pendleton’s order was made. This factor does not impact the assessment of the good faith requirement to this application. [ 85 ] I find the relocation application here to be made in good faith. Reasonable and Workable Arrangements [ 86 ] Another s. 69(4)(

a) factor to be considered is that 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. [ 87 ] With respect to parenting time with R.L., A.G.(1) has put forward a

schedule which would include A.G.(2) having long summer vacations with her father and shorter periods of time at Christmas, Easter, spring break and some long weekends. Given the driving times involved, one must wonder how practical long weekend parenting time would be. However, A.G.(1) has also offered other time out of the school calendar for parenting time provided that A.G.(2) is doing well in school. [ 88 ] A.G.(1) and her sister have offered accommodation for R.L. in Grand Prairie for any visits.

That offer has been extended to R.L.’s mother and sister should they wish to visit A.G.(2) in Grande Prairie. [ 89 ] A.G.(1) has also proposed to share the time and expense necessary in transporting A.G.(2) between Grand Prairie and Kamloops whether that involves meeting half way, alternating full distance trips or accompanying A.G.(2) during air travel. [ 90 ] Telephone, Skype or FaceTime would also be available for more frequent electronic contact between father and daughter. [ 91 ] As Judge Dhillon pointed out in T.C. v.

S.C. 2013 BCPC 217 at paragraph 86 : 86 [Section 64(a)(ii)] requires the mother to show how the father's relationship with the child can be preserved, not augmented or enhanced. It does not require anything other than a reasonable and workable arrangement to maintain the parent-child relationship. [ 92 ] These proposed arrangements, if carried out, would ensure the preservation of the relationship of father and daughter and other members of the paternal family, albeit with a reduction in the frequency of that contact.

Is the Relocation in the Best Interests of the A.G.(2)? [ 93 ] Where, as here, the parties have substantially equal parenting time with the child, s. 69(5)(

b) requires that the relocating guardian also satisfy the court that the relocation is in the best interests of the child. The parties and the court are directed by s. 37(2) that in determining the best interests of the child, all the child’s needs and circumstance must be considered, including the ten specified factors set out in that subsection. The first six factors are dealt with in turn: (

a) A.G.(2)’s Health and Emotional Wellbeing [ 94 ] A.G.(2) has no identified health or other issues that require consideration under this head. A.G.(1) has however raised the issue of the emotional wellbeing of A.G.(2) in the event of further decline in the health of her father. A.G.(1) asked rhetorically what young child deserves to watch her father “slowly fade away.” There is no evidence before me that R.L. is in any condition that might be accurately described “fading away.” [ 95 ] There is evidence from Dr. Reid and from R.L. himself that he has suffered significant health set-backs in the past year.

There is also evidence that these events have caused concern to A.G.(2), who understandably worries about her father. I have heard no evidence that these apprehensions have affected A.G.(2)’s emotional wellbeing or that her emotional wellbeing would be improved if she saw less of her father in the course of a year. (

b) A.G.(2)’s Views [ 96 ] A.G.(2), who is 9 years old, has expressed her views plainly to a number of people, including Mr. Smith, as to her desire to move with her mother to Grand Prairie. The conversation A.G.(2) had with her father about her wish to move to Grand Prairie, encouraged by A.G.(1), was unfortunate, unnecessary and predictably upsetting to the participants. It should not have happened.

[ 97 ] I am however satisfied from other evidence, including the report of Mr. Smith, that A.G.(2) does wish to move to Grande Prairie with her mother. It seems likely that A.G.(2) is expressing her own view and is not merely reflecting what she understands her mother to want. A.G.(2) has also expressed the view that she would prefer that her father should live there as well. She clearly wants to maintain her relationship with her father as well as circumstances will allow. [ 98 ] While A.G.(2)’s views are entitled to weight, it must be borne in mind that she is only 9 years and that given her youth, she may not understand all the ramifications of such a move. (

c) The Nature and Strength of the Relationships between the A.G.(2) and Significant Persons in the her Life and (

d) The History of the A.G.(2)’s Care [ 99 ] A.G.(2) has strong relationships with both guardians. Having noted that, it is clear that A.G.(2)’s mother has always been the parent more responsible for her care despite the equality of parenting time. [ 100 ] R.L.’s partners and family members, particularly his mother and sister, have also provided care and support to A.G.(2). She also has a good relationship with S.S. [ 101 ] A.G.(2) has undoubtedly benefitted from these relationships and will continue to do so in any event. (

e) A.G.(2)’s Need for Stability, Given her Age and Stage of Development [ 102 ] A.G.(2)’s life to this point has been relatively stable and static. Her parents have separated, but those people who have been significant in her life have remained present. There is an exception perhaps with respect to R.L.’s previous partner, H. [ 103 ] A.G.(2) appears to be a bright, expressive child who has no special needs to be addressed. There is little reason to believe that a move to Grand Prairie would in itself present any difficulties that would be out of the ordinary for a child of her age and maturity given the family supports available there. (

f) The Ability of Each Guardian to Exercise Their Responsibilities [ 104 ] There is clearly no impediment to A.G.(1)’s abilities to care for A.G.(2). She has proved that over the years she has provided care to A.G.(2) and shared parenting time with R.L. [ 105 ] R.L. has at times been impeded in his ability to care for A.G.(2) due to difficulties with his mental or physical health or for reasons related to substance abuse. He has been able to rely upon his close family network involving his partners, his mother and his sister. He and his current partner, S.S., appear to be in a committed relationship.

R.L.’s continued ability to exercise his responsibilities will hinge on a number of factors including the maintenance of his relationships with his family and S.S., his ability to manage his diabetes and related health issues, management of his depression and importantly in keeping the drug dependencies at bay. Other Factors [ 106 ] The final four factors to be considered under s. 37(2)(

g) through (

j) relate to family violence and risks to the safety, security or well-being of the child or other family members. These are not issues which arise on this case. [ 107 ] There is one factor which the court is not allowed to consider and that is whether a guardian would still relocate if the child's relocation were not permitted. This avoids the “double-bind” situation for the relocating guardian and the resulting inclination to favour continuation of the status quo.

Conclusion [ 108 ] R.L. and A.G.(1) have had substantially equal parenting time with A.G.(2) and both enjoyed joint custody and joint guardianship under the order of Judge Pendleton. It is, however, evident that A.G.(1) has in fact held the role of principle care-giver to A.G.(2). This has been recognized by both guardians. A.G.(1) is also the more responsible and dependable parent.

That is a role which she should continue in my view. [ 109 ] The proposed relocation will provide, it is reasonably believed, real opportunities for A.G.(1) to improve her modest living circumstances, her fiancé’s opportunities and necessarily the circumstances of Amy.

The move will reconnect A.G.(2) to her family on her mother’s side while maintaining A.G.(2)’s connections to her father, his partner and his family. [ 110 ] Taking into account all that I have set out above, I am of the view that A.G.(1) has established on a balance of probabilities that 1) the proposed relocation to Grand Prairie is in the best interests of A.G.(2), 2) the proposal is made in good faith and 3) A.G.(1) has proposed reasonable and workable arrangements to preserve the relationship between A.G.(2) and her father, R.L.

Order [ 111 ] There will therefore be an order with respect to the child A.G.(2), born [omitted for posting], recognizing that the parents are the

guardians of the child and will share responsibility on the modified Joyce model as follows: The parents are joint guardians. This means that (

a) In the event of the death of a guardian, the surviving guardian will be the only guardian(

s) of the child; (

b) Each guardian will have the obligation to advise the other guardian of any matters of a significant nature affecting the child; (

c) Each guardian will have the obligation to discuss with the other guardian any significant decisions that have to be made concerning the child, including significant decisions about the health (except emergency decisions), education, religious instruction and general welfare; (

d) The guardians will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions; (

e) In the event that the guardians cannot reach agreement on a significant decision despite their best efforts, the guardian with the majority of parenting time with the child will be entitled to make those decisions and the other guardian will have the right to apply for directions on any decision the guardian considers contrary to the best interests of the child, under s.49 of the FLA ; and, (

f) Each guardian will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third party caregivers. [ 112 ] Under s. 69(2) of the FLA A.G.(1) may relocate the residence of the child to Grande Prairie, Alberta on the following terms: (

a) The relocation off the child shall not take place before January 2, 2016, or after September 1, 2016 without the consent of R.L. or further order of the court; (

b) Each party shall continue to keep the other apprised of their telephone number and residential address; (

c) Parenting time schedules will continue as at present until the relocation takes place, unless otherwise agreed by the guardians or by further order of the court; (

d) Once the relocation takes place, R.L. will have liberal and generous parenting time with the child at dates and times agreed between the guardians, to include at least

i) six weeks during the child’s summer holidays, ii) eight days during the child’s Easter/Spring Break vacation, iii) eight days during the child’s Christmas vacation, provided that Christmas Day will be alternated between the guardians each year, and iv) such other dates and times as may be agreed between the guardians; (

e) The guardians will share as far as possible the time, effort and expense of transporting the child between homes in the exercise of parenting time; (

f) The guardians will have reasonable telephone or electronic communication with the child while not exercising parenting time. If the child will not be available for such contact at a time previously agreed by the guardians, notice shall be provided. [ 113 ] The parties may appear before me to settle the terms of this order. _______________________________ Judge S.R. Harrison Provincial Court Judge