R.D.D. v. I.N.A. Date:, 2015 BCPC 264

Citation: R.D.D. v. I.N.A. Date: 20150923 2015 BCPC 0264 File No: 12630 Registry: Lillooet IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: R.D.D. APPLICANT AND: I.N.A. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.C. DICKEY Counsel for the Applicant: Mr. S. McKinley

Counsel for the Respondent: Mr. K. Kaser Place of Hearing: Lillooet , B.C. Date of Hearing: July 17, 2015 Date of Judgment: September 23, 2015 [ 1 ] This is an application by R.D.D. for permission to relocate with her two children N.D. born [omitted for posting], and K.D., born [omitted for posting]. R.D.D. also applies for child support. I.N.A. applies for dismissal of the relocation application and seeks to have parenting time split between the parties on alternating weeks. Circumstances [ 2 ] R.D.D. is 32 years of age.

She is from the [omitted for posting] First Nations which is located in the North West Territories. She moved to Lillooet in 1999 to obtain her Grade 11 and 12. It was at this time she met I.N.A. [ 3 ] R.D.D. has a third child A.D. born [omitted for posting], that is not part of this application as I.N.A. is not the parent. [ 4 ] I.N.A. is 34 years of age.

He is a member of the [omitted for posting] First Nations Band located just outside of Lillooet. [ 5 ] N.D., the oldest child is registered with the mother’s Band while K.D. is registered with the [omitted for posting] Band. [ 6 ] The parties began a relationship in June of 2000 and separated in 2009. [ 7 ] R.D.D. upgraded her education in 2003 to allow her to become a pharmacy assistant. She has done this type of work on and off since that time. [ 8 ] She now wants to become a heavy duty equipment mechanic. This requires that she attend a 36 week program in Kamloops, followed by four years as an apprentice.

She believes that her chances of finding work are much better in Kamloops, than in Lillooet, and therefore requests that she be at liberty to move with the children to Kamloops. R.D.D. originally started this program in February of 2015 but had to leave for medical reasons. She says this was related to her driving daily to and from Lillooet to Kamloops. The next start date of this program for R.D.D. originally was planned for August of 2015.

This has now changed to August of 2016, due to the extremely unfortunate and untimely passing of R.D.D.’s common-law husband in the summer of 2015. [ 9 ] I.N.A. works for [omitted for posting] as a lineman. He is passionate and proud of the work he does, as well he should be. It appears that this passion has resulted in both his advancement within [omitted for posting] and the potential to do much more. He works in the Lillooet area although at times he is required to attend to areas which require him to work overtime.

In these circumstances, if this occurs on a date he has the children, family members care for the children. [ 10 ] Each child loves their parents. There were two Views of the Child Report. In each the son expressed that he would like to live with his mother and the daughter was less definitive. The parents requested that I speak with the children and I did so. I found that the children, as one would expect, had with the passage of time settled into Lillooet and expressed more ambivalence as to where they would reside.

They clearly expressed that they love both parents. [ 11 ] I.N.A. presently has the children during the first week of each month, every Tuesday, Wednesday, and Thursday after school until 7:00 p.m., and on the third weekend of each month from Friday after school until Sunday at 6:00 p.m. I.N.A. seeks to change this to alternating weeks arguing that a simpler

schedule would be in the best interests of the children. Law [ 12 ] Relocation applications are addressed in

Part 4, Division 6, of the Family Law Act .

Section 69 of the Act sets out the considerations for the Court with respect to relocation:

(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 relocatingguardian, 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 ifthe child's relocation were not permitted. [13]

Section 37 is also relevant in that it sets out the factors that a court must consider in assessing the best interests of the child. Thefactors to be considered are as follows: 2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including thefollowing: (

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 thechild 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 tocare 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 familymembers; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being. [14] Counsel for the father referred me to two decisions of this Court: 1. S.G. v. J.P., 2013 BCPC 126 ; and 2. J.P.L. v. C.M.M., 2014 BCPC 302 . [15] In S.G. v. J.P., Judge Morgan found that both parents were equally capable and motivated parents. Judge Morgan found that theproposed relocation was made in good faith and the proposed arrangements would preserve the relationship between the child and theother parent.

Despite this the court found that the mother did not establish that it was in the best interest of the child to move to theproposed area of relocation and therefore the application was denied. [16] I.N.A. relied on J.P.L. v. C.M.M. for the proposition that where a parent puts forward enhanced employment opportunities as ajustification for relocation the parent carries “the onus of showing why the opportunities in the proposed new location are superior tothose in place where the non-custodial spouse lives” (para.17). [17] I.N.A. referred me to the decision of M.M. v.

C.J., 2014 BCSC 6, on the issue of what is meant by “substantially equal”parenting time. In the circumstances of that case both parents exercised equal parenting time for a period of almost five years. Thisschedule was varied by court order and for approximately one year prior to the hearing the father’s time with the child was reduced to 5days out of 14. Mr. Justice Jenkins found that five of fourteen days was a significant amount of parenting time and therefore concludedthat each parent had “substantially equal parenting time” (para. 59).

Analysis [ 18 ] The first issue in this case is whether R.D.D. has satisfied the court, as she is required to do under s. 69 of the Act , that her proposed relocation is made in good faith, and that the proposed arrangements are reasonable and workable to preserve the relationship between I.N.A. and his children. [ 19 ] An enhanced career opportunity for a parent will generally be a positive factor in determining whether relocation is appropriate. Success for a parent in a career will normally provide material benefits and a happier parent.

Generally this will be in the best interests of the child. [ 20 ] In these circumstances I find that R.D.D.’s wish to pursue further education to become a heavy equipment mechanic is an admirable one. This is a 36 week program following which she hopes to enter a four year apprenticeship. The evidence on where she might be employed as an apprentice is speculative. She believes there is more opportunities in Kamloops but has not provided any evidence on which I can assess and rely on this opinion.

This is speculation at best. [ 21 ] I.N.A. argues that it is unlikely that R.D.D. can perform the necessary duties of a heavy duty mechanic. I do not accept this. R.D.D. told the Court she is passionate about this type of work. I agree with counsel for I.N.A. that R.D.D. appears to have come to this conclusion based on very little experience in this area. This raises the question of whether R.D.D. will maintain that passion once she commences such work, but I have no doubt that she will be able to work in this capacity if this passion continues.

For these reasons I find that the proposed relocation is made in good faith. [ 22 ] R.D.D. argues that the relationship between the father and the children can be preserved by parenting time every other weekend and on Wednesdays. I find that with the father’s hours of employment and the distance between Lillooet and Kamloops that any parenting time on Wednesdays is highly unlikely. I find that the

schedule proposed by R.D.D. is a dramatic reduction in parenting time for I.N.A.; his time with his children will be reduced from 13 ½ days to 4 days per month. This dramatic reduction in parenting time for I.N.A. means that R.D.D. has failed to propose reasonable and workable arrangements to preserve the relationship between the children and Mr. D. [ 23 ] On my reading of s. 69 of the Act the failure of R.D.D. to satisfy the Court of reasonable and workable arrangements to preserve the relationship between the children and I.N.A. does not necessarily result in the relocation not being in the best interests of the children.

Section 69 says that if the proposed relocating parent satisfies the two requirements then it is prima facie in the best interests of the child; the legislation does not say that the reverse applies when the proposed relocating parent fails to satisfy the requirements. [ 24 ] I find therefore that I must consider the best interests of the children. [ 25 ] If I am wrong on my finding of R.D.D. failing to propose reasonable and workable arrangements, then there is still the issue of whether the parents have substantially equal parenting time as per s. 69.

On the issue of parenting time I find that I.N.A., on a conservative calculation, has approximately 13 ½ days of parenting time each month. This is calculated by adding 7 days for the first week, ½ day for each Tuesday, Wednesday and Thursday for a total of 4 ½ days and 2 days for the weekend each month. He seeks shared equal parenting time. I am guided by the decision of Mr. Justice Jenkins in M.M. v. C.J. I find that 13 ½ days per month falls within the term “substantially equal parenting time” and therefore the test as found in s. 69(5) applies in these circumstances. This

section also requires that I consider the best interests of the children. [ 26 ] I find that both I.N.A. and R.D.D. are very good parents. They are different in their parenting styles but I don’t find this makes one better or worse than the other. Each parent provides different attributes to their children. I find, therefore, it is in the children’s best interests to have both parents playing a significant role in their life. The children in such circumstances will learn from, and be emotionally supported, by both. [ 27 ] R.D.D. will have to attend Kamloops for her schooling in 2016.

If it becomes apparent that she is unable to find employment except in Kamloops then this issue may need to be addressed at some future time. At this time, however, it is at best speculative to conclude that she will only be able to find employment in the Kamloops area. I am not prepared to allow relocation simply for career advancement where employment is at best speculative, and the period of education is only 36 weeks. [ 28 ] I have considered whether other arrangements, other than those proposed by R.D.D., are workable and reasonable to preserve the relationship of the children and I.N.A.

I have been unable to craft such terms. I find that the most significant factor in determining the best interests of the children is to maintain the children’s relationship with both their father and mother. This can only be insured by refusing the mother’s application to relocate as to do otherwise would dramatically affect their relationship with their father. [ 29 ] The mother’s application for relocation is denied. [ 30 ] I.N.A. applies for shared parenting time with the children on a week on week off schedule. It is clear that the children would like a simpler form of arrangement of shared parenting time.

My impression from R.D.D. is that she also was unhappy with the present

schedule with all its variations throughout the month. I agree with this. It is in the best interests of the children to provide more regularity with their

schedule of parenting time. The

schedule for parenting time will be alternating weeks. The parents shall also be at liberty to have regular telephone or social media time with their children when the children are with the other parent. [ 31 ] R.D.D. also applies for child support from I.N.A. including arrears. In a shared parenting arrangement child support is calculated by first determining the income of each parent, then calculating the amount of child support that each would pay, and then reducing the higher payment by the lower payment. I.N.A.’s Line 150 income, according to his filed assessments, is as follows: 2011 - $66,481 2012 - $62,655

2013 - $75,000 2014 - $98,292. [ 32 ] R.D.D. argues that Mr A.’s income should be grossed up starting in 2013 as at that time he paid no income tax as a result of working from First Nations land.

The calculation for 2013 would be grossed up to $101,500, and for 2014 this would be $132,975. [ 33 ] R.D.D. applies for child support to be varied retroactively to June of 2011 and adjustments thereafter on a yearly basis. [ 34 ] R.D.D.’s line 150 income is as follows: 2011 - $8,331 2012 - $10,351 2013 - $25,250 2014 - $25,250. [ 35 ] I am using the figure of $25,250 for R.D.D.’s income for 2014 even though I have not been provided with a filed I.T.R. or Assessment. R.D.D. testified that she was working with the same employer and in the same capacity in 2014 as in 2013.

She also testified that she was earning approximately $2,000 net per month in 2014. [ 36 ] I.N.A. was required, as per the order of December 12, 2011, to pay child support in the amount of $781 per month. This was based on I.N.A.’s annual income of $51,451. It was retroactive to June 1, 2011. When this order was made there was not a substantially equal shared parenting schedule; this did not occur until the Order of December 11, 2013. [ 37 ] I find that the amount of I.N.A.’s child support was not reviewable until he was to disclose his prior year’s income on June 1, 2012.

His child support should have increased each following year on the 1 st of June to reflect his increase in income from the previous year. His child support should also reflect that he had the children for 45% of the time as of December 11, 2013, and therefore his child support should be reduced by Ms. R.D.D.’s obligations as of June 1, 2014. [ 38 ] I calculate that from June 1, 2012, to May 31, 2013, I.N.A. was required to pay $1,001 per month but only paid $781.

He therefore is $2,640 in arrears for this period. [ 39 ] For the period of June 1, 2013, to May 31, 2014, he was required to pay $949 per month but only paid $781. There is no reduction for income earned by R.D.D. as she did not earn enough income to pay child support. The total owed by I.N.A. for arrears for this period is $2,016. [ 40 ] For the period of June 1, 2014, to May 31, 2015, he was required to pay $1,498 per month but only paid $781. R.D.D. was required to pay $394 per month.

The total owed by I.N.A. for arrears for this period is $3,876. [ 41 ] For the period of June 1, 2015, to September 30, 2015, I.N.A. is required to pay $1,897 per month but only paid $781. R.D.D. was required to pay $394 per month. The total owed by I.N.A. for this period is $2,900. [ 42 ] The total arrears for the period from June 1, 2012, to September 30, 2015, is the sum of $11,432. [ 43 ] The child support payable by I.N.A. commencing on the first of October 2015, and the first day of each month thereafter is $1,503.

This amount shall be reviewable on June 1, 2016, and every June 1 thereafter to reflect the incomes of both parents and the Child Support Guidelines . [ 44 ] The parties shall continue to be required to exchange copies of their filed Income Tax Returns on June 1 for the previous year, and immediately upon receipt provide a copy of any reassessment to the other party. ____________________________ R.C. Dickey Provincial Court Judge