L.J.P. v. D.L.B. Date:, 2013 BCPC 104

Citation: L.J.P. v. D.L.B. Date: 20130506 2013 BCPC 0104 File No: 12920 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: L.J.P. APPLICANT AND: D.L.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Applicant: Mr. David Dundee

Counsel for the Respondent: Ms. Gillian Oliver Place of Hearing: Kamloops , B.C. Date of Hearing: April 3, 4, and 5, 2013 Date of Judgment: May 6, 2013 [ 1 ] This is a mobility case. The child in question is L.E.P., born [DOB]. He goes by the name “E.”. By all accounts, he is a bright and active little boy who is loved by both parents and well cared for in both homes. [ 2 ] E.’s parents separated when he was six months old. Since then, he was cared for on an informal

schedule in the beginning, ultimately becoming a formal

schedule of two weeks with each parent after Ms. D.L.B. moved to Prince George. While the two weeks on and two weeks off seemed to have worked relatively well despite some significant communication issues between the parents, E. will be starting Kindergarten in the fall. He cannot live in two cities at the same time. THE APPLICATONS: [ 3 ] The applications respecting where E. will reside commenced before the Family Relations Act was repealed. The parties now seek orders respecting the child’s residence, parenting time with each parent, and parenting responsibilities. [ 4 ]

Section 37 of the Family Law Act preserves the requirement of the court to consider the best interests of the child but increases the obligation of the court to consider only the best interests of the 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. [ 5 ] Section 39(1) provides that: 39

(1) While a child's parents are living together and after the child's parents separate, each parent of the child is the child's guardian. [ 6 ] After some discussion about whether I should declare the parents to both be guardians of the child or simply acknowledge this requirement under s. 39, I will provide in my order language which acknowledges the parents are both guardians of E. This is important because only a guardian may have parental responsibilities with respect to a child.

In addition, s. 40 obligates each guardian to exercise parental responsibilities with respect to the child in consultation with the child’s other guardians unless that consultation would be unreasonable or inappropriate in the circumstances. This

section demands that parents communicate effectively. [ 7 ]

Section 41 enumerates the parental responsibilities but I have also been provided with a copy of a version of what used to be the Master Joyce model for guardianship as prepared by Mr. Dundee (the Dundee version) and a copy of a similar provision prepared by Stephen Soll, another family lawyer in Kamloops (the Soll version). These two versions are circulating amongst the Bar. Mr. Dundee and Ms. Oliver both referred to these versions essentially using them as a template but seeking variations particular to this case. [ 8 ] Under s. 45, the court may do the following: 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. [ 9 ] Mr. Dundee has asked that I impose an order under s. 224 requiring the parties to participate in family dispute resolution and/or to attend counselling, pursuant to s. 45(1)(d).

Section 224 provides as follows: 224

(1) A court may make an order to do one or both of the following: (

a) require the parties to participate in family dispute resolution; (

b) require one or more parties or, without the consent of the child's guardian, a child, to attend counselling, specified services or programs.

(2) If the court makes an order under subsection (1), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, services or programs. [ 10 ] There being no agreement or order in place at the time the relocation occurred, s. 46 of the Act also applies which provides as follows: 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. THE BACKGROUND: [ 11 ] Both counsel describe this case as being on a knife’s edge. That is an entirely accurate description. When I consider the best interests of the child, neither living circumstance prevails over the other in all factors generally or individually. E.’s health and emotional wellbeing is well fostered in both homes. Both parents have a surprisingly objective perspective on their son’s very busy nature and the most effective way to discipline him.

Despite the fact that both parents acknowledge they have communication hurdles to overcome, they are both disciplining E. in almost identical fashion. [ 12 ] E. is young to be expressing his views on where he would prefer to live. He has expressed an interest in going to “the blue school” but both proposed schools are blue. These parents have been careful to leave E. out of their legal proceedings as a result of which neither one has sat down with him to inquire into his preferences or views. I conducted an interview of E. despite his young age at the invitation of the parents.

As E. darted from place to place examining his new environment, we chatted freely about the daycare in Kamloops and the daycare in Prince George; the house in Kamloops and in Prince George; his bedrooms in each of the homes; his favourite activities with each parent; his least favourite activities with each parent; and his friends in both locations. In each instance, if E. described something he liked about the daycare in Kamloops, he would say that he liked it in Prince George too. The same applied for his friends, his bedroom, his yard, and his home life.

It is clear that E. would do very well in either location. He acknowledges that each parent would be sad if he was not living with them. [ 13 ] With respect to the nature and strength of the relationships between E. and the significant persons in his life, it is clear that E. is very attached to both of his parents. Whether he resides in Prince George or Kamloops, his contact with his grandmother in 100 Mile House will be continued. E. has friends in both locations. In Kamloops, he will be moving to a new school when he commences Kindergarten, and therefore a new daycare.

His contacts with his friends can be maintained but that contact can be maintained as easily if E. resides in Prince George and has parenting time in Kamloops, as it can be if he resides in Kamloops and sees his friends outside of school. He has very close ties with two of Mr. L.J.P.’s friends, C.M. and M.B. Both men are close friends with Mr. L.J.P. and have very close ties with E. Those ties, though, can be maintained if E. resides in Prince George. [ 14 ] Similarly, E. has developed new friends in Prince George.

Presumably those new friends will still be accessible to him if he were to reside in Kamloops and visit Prince George. His mother is engaged to be married to D.B. This marriage is taking place in August. E. has known Mr. D.B. all of his life. That connection only became closer after Ms. D.L.B. and Mr. D.B. entered into a relationship in 2011. This is a very close tie for E. but it can be easily maintained whether he lives in Prince George or Kamloops. [ 15 ] The history of the child’s care has been varied. Initially, when E. was born, Mr. L.J.P. was working and Ms. D.L.B. was on maternity leave.

As a natural consequence, she had the primary care of E. However, once Mr. L.J.P. was home from work for the day, they shared the parenting responsibilities. [ 16 ] After Mr. L.J.P. and Ms. D.L.B. separated, Ms. D.L.B. was working variable shifts at Future Shop and then returned to school at Thompson Rivers University. During that time, Mr. L.J.P. was able to work from home and then obtained different employment with a flexible employer. As a result, he was able to do much of his work from home and care for E. while Ms.

D.L.B. was first working, than attending school. [ 17 ] One of the communication problems that arose between the parties is that Mr. L.J.P. is very organized and schedule-oriented. Ms. D.L.B. is much less so. As a result, Mr. L.J.P. found his tendency toward planning to be disrupted by Ms. D.L.B.’s impromptu change of plans. This may have been an inconvenience to Mr. L.J.P. but there is no indication that it caused any disruption or harm to E. In fact, despite the communication problems between his parents, E. was able to spend considerable quality time with both parents.

While they do not seem to have been aware of each other’s participation with the daycare, both gave evidence that they were in daily contact with the daycare and aware of any issues or challenges E. may be facing. While they were each a different style of parent, they were both very engaged and very proactive. [ 18 ] When Ms. D.L.B. was no longer able to reside in Kamloops, she moved home to live with her mother for a brief period of time in 100 Mile House. During that time, E. would reside with his mother for two weeks and then with his father for two weeks. Mr.

L.J.P. agreed to this arrangement partly because 100 Mile House is not a significant distance and partly because it was not to be a permanent arrangement. Since then, E. has essentially been in the care of both parents for equal time. [ 19 ] It goes without saying that a child of E.’s age will benefit from stability. That stability can be maintained regardless of which home he lives in while going to school. [ 20 ] If there were to be a red flag in this case, it would be on the topic of the ability of each guardian to exercise his or her responsibilities.

I say this because both parents acknowledge that communication has been a stumbling block for them but neither have made any significant or genuine efforts to overcome that obstacle. They persist in telling each other as little as possible without compromising E.’s wellbeing. Neither parent is more culpable than the other but it is clear they both need to learn to communicate on a much more constructive level. [ 21 ] There is no evidence of any family violence in this circumstance. Ms. D.L.B. did express that she was fearful of Mr. L.J.P. when he became angry in the past.

However, there is no evidence that this anger threatened any violence. It was more a case of Ms. D.L.B. not wishing to have to deal with that anger. Despite this, she has persisted in addressing the more difficult issues with Mr. L.J.P., such as her relocation to Prince George. [ 22 ] Interestingly, the legislation has dropped from its enumerated list of “best interest factors” the consideration of “education and

training for the child”. While the court no longer “must” consider this factor, I am satisfied that it is an appropriate factor to consider allthe same. In this case, E. will be attending French immersion school regardless of where he lives. Before his parents separated, theyagreed that French immersion school would be beneficial to E. He has proved to be a bright and curious boy. Both parents continue tobe of the view that E. should attend French immersion school. I am satisfied that his education and training will be pursued assertivelyby either parent in accordance with the wishes of both parents.

THE LAW: [23] The considerations for a mobility case appear to be fairly similar under the Family Law Act as they were under the FamilyRelations Act. I have been referred to the following cases and materials: Where is BC Law Going? The New Mobility: Family Law Conference 2011 CLEBC; Family Law Source Book: Care of Children, Parental Mobility; Gordon v. Goertz, (SCC), [1996] 2 SCR 27; Pugachev v. Pugachev, 2006 BCSC 30; Stav v. Stav, 2012 BCCA 154; and One v. One, 2000 BCSC 1584.

I also made reference myself to a decision whose name escaped me at the time of argument but is annotated in the former FamilyRelations Act materials, King v. Low, (1985) (SCC), 44 RFL (2d) 113 SCC. [24] Gordon v. Goertz, supra, set out a two step test whereby the applicant had to first meet the threshold requirement determining amaterial change in circumstances affecting the child. It goes without saying that a move of residence significantly altering the parentingtime one guardian has with the child is a material change in circumstances affecting that child.

In any event, there was no prior order inthis case except interim without prejudice orders. [25] Once the threshold is met, the applicant then must establish that the proposed move is in the best interests of the child given allof the relevant circumstances for the child’s needs and ability of the respective parents to satisfy them. [26] This two step process has passed the test of time although I will note the following observations from the Family Source Book: The threshold requirement of a material change is often met merely by the proposed move itself.

The inquiry then focuses on what is inthe best interests of the child. Unless the custodial parent’s reason for wanting to move is connected to their parenting ability, it shouldnot enter the inquiry. [27] The new provisions make it mandatory that the court consider the reasons for the move without the qualifier continuing on: In a mobility application, the party seeking to move need not prove the move is necessary; although the degree of necessity may bearupon the best interests of the child. The authorities generally do not favour the status quo as a “default position”.

Further, the courtshave discouraged relying on any expression by the parent seeking to move that he or she will not move if the child cannot move as well,as this puts that parent in a classic double-bind (Hejzlar v. Mitchell-Hejzlar, 2011 BCCA 230 at paras. 24 to 27). Some cases since Gordon v. Goertz have focused on the importance of the move to the custodial parent and the consequent healthy ofthe family unit (Kennedy v. Kennedy, [1997] B.C.J. No. 2572 (QL) (S.C.); Doro v Doro [1997] B.C.J. No. 2407 (QL) (S.C.)).

In bothKennedy and Doro, the custodial parent was allowed move where it was found that to restrain the move would cause the custodial parentstress that would have an adverse impact on the children. In Vinderskov v. Vinderskov, 2001 BCSC 994, appeal on other groundsallowed in

part 2002 BCCA 590, where the mother wished to move to New Brunswick to marry and live with her new husband, but onlyif the children could move with her, the court permitted the move. The court noted that restraining the move would make the parentunhappy as a result of not being married, and that would adversely affect the children. See also Lowcay v. Lowcay, 2000 BCCA 447.When considering the best interests of a very young child, the court should not overlook the compelling needs of the parent. Theseinterests are likely closely aligned (Dario v. Rivers, 2004 BCSC 347). [28] I note that while Ms.

D.L.B. does intend to marry Mr. D.B., there is no suggestion that an order requiring E. to live in Kamloopswould prevent that marriage or Ms. D.L.B.’s relocation. [29] In One v. One, supra, the court considered the factors set out in Gordon v. Goertz, supra, and in Nunweiler v. Nunweiler,

[2000] BCJ (QL) No. 935 providing in a review of the principles arising from the various relocation cases which are cited beginning at page 18: parenting capabilities of and children’s relationship with parents and new partners; employment security and prospects of each spouse and, where appropriate, their partners; access to and support of extended family; difficulty of exercising proposed access and quality of proposed access if the move is allowed; effect upon children’s academic situation; psychological/emotional wellbeing of children; disruption of children’s existing social and community support and routines; desirability of proposed new family unit for children; relative parenting capabilities of either parent and respective ability to discharge their parenting responsibilities; child’s relationship with both parents; separation of siblings; and retraining/educational opportunities for a moving parent. [ 30 ] With respect to employment security and prospects of each spouse and partner, Mr.

D.B. did investigate the prospects of purchasing a home in Kamloops and obtaining employment here. Not only would he take a significant cut in income, but the housing prices are considerably higher than they are in Prince George. Similarly, Ms. D.L.B. has lived at a considerably low income level in all the time that she has been in Kamloops. On moving to Prince George, she was quickly able to obtain employment in a field of interest to her, earning almost $60,000.00 per annum. This is a markedly higher income than she ever earned in Kamloops. It permitted her and Mr.

D.B. to purchase a home in a neighbourhood across the street from the school. It affords a much more comfortable lifestyle for E. than he enjoyed when with his mother in Kamloops. [ 31 ] With respect to the desirability of the proposed new family unit for E., E. is familiar with Mr. D.B. Mr. D.B. has been in his life for some years and increasingly more so since moving in with Ms. D.L.B. E. is attached to his stepfather and they appear to get along very well. [ 32 ] Apart from that, I have already addressed the other factors enumerated in One v. One . In Pugachev v.

Pugachev , supra , the court reinforced the principle that “custody” must be crafted to best serve a particular child’s particular interest. [ 33 ] At paragraph 53, the court said of that particular child: 53 Michael's best interests will be served by primarily living with the parent who not only cares for him and will provide care for him, but whose approach to parenting is flexible, adaptive, sensitive, and sensible. Which is to say that all other things being equal, the parent with the greater dose of common sense is more likely to give Michael what he needs as he grows up.

To have common sense one must, of course, be able to exercise good judgment. And that judgment must be exercised in all aspects of Michael's rearing - health, education, recreation, socialization, and of particular importance in this case, promoting a positive relationship with his distant parent. [ 34 ] In this case, it is not so much a matter of whether one parent exercises more common sense than the other as it is that these two parents have entirely different personalities. In the end result, they have very similar parenting styles but share a common lack of proper communication with each other.

I am satisfied that either parent would ensure E.’s health, education, recreation, socialization and relationship with the distant parent. [ 35 ] Stav v. Stav , supra , cautions the court against correlating the best interests of the children with the “custodial” parent. Neither parent in this case is the distinctly “custodial” parent since both have parented E. largely equally all his life. [ 36 ] The decision I referred to in King v.

Low , supra , is for the proposition that the welfare of the child “will not be determined solely on the basis of material advantages or physical comfort offered by one parent over the other”. With that caution in mind, it remains a proper factor to consider if the improvement in circumstances for the parent results in an improvement of circumstances for the child. That is very much the case for E. [ 37 ] Unlike Gordon v. Goertz , supra , this is not a variation of an existing order. There are only interim consent orders which are without prejudice. However, Gordon v.

Goertz , supra , has been applied to initial “custody” cases as well. [ 38 ] The Continuing Legal Education materials summarize the trends in relocation cases in British Columbia. The principles that evolved from those cases as identified in the materials are as follows: (

a) Predominantly in British Columbia, a “well behaved primary caregiver” is almost always allowed to move. If the move is circuitous, or the custodial parent is “parsimonious” toward access, the move may not be permitted. (

b) Where each parent has a child or children for at least 40% of the time, the courts have declined to permit moves in a significant number of the cases. (

c) A predominant number of cases permitted children under six to be moved. (

d) Interestingly, a predominant number of moves were permitted for a parent to be with a new partner, for a new partner’s employment, or for a parent to return home to family. Conversely, perhaps because the numbers were so few, only 33% of the cases permitted relocation for a parent’s employment. [ 39 ] While these may well be trends in the law across the country and in British Columbia, trends do not dictate the outcome of a particular case.

The court must always be mindful of the specific facts of a specific case and consider only the best interests of the child. [ 40 ] The material suggests that the British Columbia Court of Appeal has “consciously decided to shift the law in favour of the moving parent, no matter whether that parent is a “primary caregiver” or a “primary parent” or a “shared custody parent”. S.S.L. v. J.W.W. , [2009] BCJ No. 1329 was cited as one such case. The Court of Appeal established the following four principles:

(1) A court should avoid the problem of the “double bind” question, which asks the custodial parent whether she or he will move without the child.

(2) A court should not default to the status quo in a relocation case, as that amounts to an inappropriate presumption.

(3) A court should look, not at “the time factor,” but at the role each parent has played in the children’s lives as caregiver.

(4) In shared custody situations, a court must consider four possible scenarios, including primary residence to each parent at each separate location and continued shared custody at each location, no matter the desired options of the parents. [ 41 ] Mr. Dundee argued that the Family Law Act will turn the Court of Appeal back away from permitting moves. Under s. 69(5), the presumption lies with the person planning to move. However, s. 69(5) does not apply in this case.

Section 48, which does apply, has a presumption against unilateral change. This is not a presumption against a move, but a presumption against change without consultation. As it happens, though, this Act had not been passed at the time that Ms. D.L.B. advised Mr. L.J.P. that she was moving to Prince George, or when her move took effect. [ 42 ] Mr. Dundee cautions the court against condoning Ms. D.L.B.’s actions while recognizing that the court cannot punish her for them. He argued that Ms. D.L.B. knew that moving would be an issue but did it anyway. She did not involve Mr.

L.J.P. in her efforts to explore options of moving to Kamloops. She chose to move rather than await the outcome of the court proceedings once they were commenced. It leaves Mr. Dundee to question whether or not Ms. D.L.B. would genuinely ensure active involvement in Mr. L.J.P.’s life if E. were permitted to relocate to Prince George. That can be resolved with the appropriate orders put in place. [ 43 ] Ms. Oliver argued that there was nothing sneaky about the move. There were consent orders made for the interim and were without prejudice. They were in place before the relocation occurred. Ms.

D.L.B. has justified her reasons for moving to Prince George and the efforts she made to integrate E. into her home in that city. Even if E. does not reside with her, he is going to have friends in Prince George, so she proceeded with introducing him to people he would know. There was no subterfuge or deceit involved. [ 44 ] All things being equal, Ms. Oliver argued that Ms. D.L.B. moved to Prince George because of her relationship with Mr. D.B. and to earn a better living, giving E. a more stable home. They did look at the feasibility of moving to Kamloops before looking at Prince George.

There was simply not the opportunity for Mr. D.B. to get competitive employment or for her to find employment that would not only give her a respectable living but assist her in paying off her student loans. She has gone from living on income assistance in Kamloops to a significantly better income level in Prince George. [ 45 ] Ms. Oliver argued that the new relationship matters. Ms. D.L.B. and Mr. D.B. have been together since E. was three, and she was friends with his family for years prior to that. They plan to marry and have children. E. is excited about this. [ 46 ] Ms. Oliver argued that although Mr.

L.J.P. is in a relationship, E.’s relationship with his partner is informal. There are no further details about this person before the court. This, in my view, is only relevant to the extent that Mr. L.J.P.’s partner is not a person with whom E. has established a relationship that I must take it into consideration. That Mr. L.J.P. has taken the wise course of not introducing E. to someone who may not stay in his life cannot be held against him. [ 47 ] Comparing the residences, Ms. Oliver argued that Ms. D.L.B. has a house in Prince George with lots of space and a back yard.

They live close to the school he will attend and have no plans of moving. On the other hand, Mr. L.J.P. lives on the ground floor of a house. He says that if E. stays with him he will move to another residence, but the location of that residence is uncertain. THE ANALYSIS: [ 48 ] As counsel said, this case is on a knife’s edge. There is no one strong compelling factor tending in favour of one parent as opposed to the other. Both parents have had essentially equal time caring for E. most of his life.

In a perfect world both parents would live in the same city and E. would continue to spend equal time with each parent. However, E. must start Kindergarten in September and so I must decide which city he will reside in. [ 49 ] The witnesses testified that E. is a busy, energetic child who is happy. He requires constant direction and reinforcement. He responds better to discipline that sees him rewarded for good behaviour and firm guidance for bad behaviour. Both parents appropriately exercise discipline that works best for E. [ 50 ] E. attends daycare in Kamloops which it is also a Montessori preschool.

It has been an enriching experience for him but he will be leaving that daycare when Kindergarten starts. There will be no continuity of playmates or caregivers at the daycare he will attend at [omitted for posting] Daycare, although his current daycare and his proposed daycare are related. In Prince George, E. will continue to attend [omitted for posting] Daycare where he has been attending since Ms. D.L.B. moved. He will attend that daycare less often because his mother will be working from home but he will continue to have those contacts.

In that sense, it will be in E.’s best interests to attend the [omitted for posting] Daycare in Prince George. [ 51 ] E. will be commencing Kindergarten in the fall. He will be going to a new school and starting anew regardless of whether he is in Kamloops or Prince George. Both of the schools are French immersion and he seems excited to attend either one. There is no factor balancing in favour of E. attending either school. [ 52 ] E. has no extended family in either Prince George or Kamloops.

Whichever decision I make with respect to his residence, E. will see less of his extended family who reside in 100 Mile House. However, Ms. D.L.B. has said that her mother will visit in Prince George to continue contact with her grandson. While there is no specific evidence that Mr. L.J.P. would accommodate E. seeing his mother’s family in 100 Mile House, there is every indication that Mr. L.J.P. is welcome in Ms. D.L.B.’s family’s home. He has been doing exchanges there comfortably since the move. It is clear, however, that E.’s contacts with his extended family and with Mr.

D.L.B.’s family who also reside in 100 Mile House, will be better fostered if E. is residing with his mother. This tends toward being in E.’s best interests. I must emphasize that this is not a particularly strong factor because those contacts will be maintained albeit at differing degrees regardless of where E. resides. [ 53 ] E. has made friends in both Prince George and Kamloops. Regardless of where E. lives, the nature of his contact with those

existing friends will not be significantly altered. [ 54 ] As I have said, the parenting styles of these two parents is quite different. Mr. L.J.P. is more structured and is more careful in planning. Ms. D.L.B. is less structured but still routine oriented. Both parents have shortcomings in the way of communication, but only with each other. Their communications with the caregivers and with E. himself are exemplary. There is no satisfactory evidence before me about whether a more structured and plan-oriented daily routine or a more flexible routine is in E.’s best interests.

He appears to thrive equally well in both environments. Communication does not affect E.’s best interests except insofar as his parents are able to coordinate access, travel difficulties and overall planning issues for E. This communication is going to be absolutely critical to the parties given the orders that I am going to make, but the communication issues can be resolved through conduct orders. [ 55 ] All things being relatively equal, a decision must be made nonetheless. While E. would thrive in either household I find that on the whole, the balance is in favour of his home in Prince George.

His home will be more stable and certain; his school across the street; his mother available to provide after school care; his connections continued with his [omitted for posting] Daycare friends; and the overall comfort of life more suited to a busy young boy. THE ORDERS: [ 56 ] I confirm that the parents are guardians for the purposes of the Family Law Act . I order that E. shall reside ordinarily with D.L.B. commencing August 31, 2013.

Until then, the current regime of two weeks with each parent shall continue. [ 57 ] I make an order under s. 224 that both parties shall attend counselling for constructive communication. I am advised that both parties have counselling covered under the medical benefits plans at their respective places of employment. Both have indicated a willingness to attend counselling and both recognize that they need to work on communication. [ 58 ] I am combining the Dundee and Soll guardianship orders into one which in my view is suitable for these particular parties.

(1) Each party shall: (

a) put the best interests of the child before the parent’s own interest; (

b) do everything necessary to ensure the child is disrupted as little as possible by the separation; and (

c) exchange information about the wellbeing of the child, including progress in school, extracurricular activities and any illnesses of the child while he is in the care of the other parent.

(2) Each parent will share equally all parenting responsibilities of guardians, with the following exceptions: (

a) to the extent she is able without being appointed trustee of the child’s property, Ms. D.L.B. will hold and administer any property of the child; (

b) in the event of the death of either parent, the remaining parent will be the sole guardian of the person of the child; (

c) each parent shall have the obligation to discuss with the other any significant decisions which have to be made with respect to the child, including significant decisions concerning the health (except emergency decisions), education, religious instruction, and general welfare, and specifically including decisions about: (

i) residence and association with other persons; (ii) education and participation in extracurricular activities, including the nature, extent and location; (iii) cultural, linguistic, religious and spiritual upbringing and heritage; (iv) medical, dental and other health related treatments (except emergency decisions), including giving, refusing or withdrawing consent to such treatments (subject to

section 17 of the Infant’s Act ); (

v) application for a passport, licence, permit, benefit privilege or other thing for the children; (vi) legal and financial interests and any proceedings relating to the children; (vii) any other responsibilities reasonably necessary to nurture the children’s development; and each parent shall have the obligation to try to reach agreement with respect to those major decisions; (

d) in the event that the parents cannot reach agreement with respect to any major decision, despite their best efforts, the parties shall exert their best efforts to mediate a resolution of the issue with a Family Justice counsellor and attend at least two sessions with a Family Justice counsellor before proceeding to court; (

e) in the event that resolution is not mediated through a Family Justice counsellor on the foregoing terms, either party is at liberty apply to the court for directions; (

f) each parent shall have the right to obtain information concerning the child directly from third parties, including teachers, counsellors, medical professionals, and third-party caregivers; and (

g) during their respective parenting time, either guardian may exercise the parental responsibility of making day-to-day decisions affecting the child, subject to the above.

(3) The respondent shall have reasonable and generous parenting time, including: (

a) The parties shall alternate parenting time with E. at Christmas time in alternating years beginning at the school break up until noon on Boxing Day. In odd numbered years E. shall be with Mr. L.J.P. commencing December, 2013 and in even numbered years with Ms. D.L.B. commencing December, 2014. (

b) Mr. L.J.P. shall have parenting time with E. for every Easter break commencing at noon on Good Friday to noon on Easter Monday. (

c) Mr. L.J.P. shall have parenting time with E. for the first six weeks of the school summer break commencing at noon on the first Saturday after the last day of school. (

d) Mr. L.J.P. shall have parenting time with E. for the entirety of E.’s spring break commencing at noon on Saturday after the last day of school until noon on Sunday before school begins. (

e) Mr. L.J.P. shall have parenting time with E. for every long weekend including statutory holidays, professional development days and non-instructional days not otherwise provided for in this order commencing at noon on the first non-school day and ending at noon on the last day of the long weekend. If Mr. L.J.P. does not wish to have parenting time on a particular long weekend, he shall so notify Ms. D.L.B. as soon as possible and not later than one week before the parenting time is to commence. (

f) All exchanges shall be in 100 Mile House at 12:00 noon, subject to agreement of the parties and subject to the prevailing weather conditions. (

g) Each parent shall have liberal and generous contact with E. by telephone, Skype or such other technology as the parties may obtain while E. is with the other parent. [ 59 ] I have also been asked to credit the paying parent $200.00 for the costs of exercising access, and to make orders with respect to special and extraordinary expenses. Ms. D.L.B.’s income for Guideline purposes is $57,146.00 per annum. Mr. L.J.P.’s income for Guideline purposes is $47,660.00 per annum commencing September 1, 2013. Mr. L.J.P. shall pay child support to Ms.

D.L.B. the sum of $435.00 per month less $200.00 for the costs of exercising access for a total of $235.00 per month. The parties shall exchange their completed income tax returns annually not later than June 1 and adjustments shall be made to child support and special or extraordinary expenses accordingly effective July 1 each year. [ 60 ] Special and extraordinary expenses will include some of the other extracurricular activities each parent would like to enrol E. in. In doing so, both parents must recognize that parenting time with E. is critical to his best interests.

As such, whatever activities they enrol E. in must be subject to parenting time with the other parent. If a parent wishes to enrol E. in something for which that parent will seek contribution from the other, that parent must first consult with the other parent in accordance with the order set out at paragraph 58(2)(c)(ii). [ 61 ] The proportionate share of special and extraordinary expenses are 45% to Mr. L.J.P. and 55% to Ms. D.L.B. [ 62 ] Ms. Oliver shall draft the order. ______________________________ S.D. Frame Provincial Court Judge