D.M.M. v D.F. Date:, 2015 BCPC 310

Citation: D.M.M. v D.F. Date: 20151021 2015 BCPC 0310 File No: 1342555 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: D. M. M. APPLICANT AND: D. F. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. K. KEYES Counsel for the Applicant: Ms. Zetzsche

Counsel for the Respondent: Mr. Hutchinson Place of Hearing: Prince George , B.C. Dates of Hearing: January 12 and February 12, 2015 Date of Judgment: October 21, 2015 [ 1 ] D. M. and D. F. are the parents of S. M., born [omitted for publication]. Her parents were not married, but did live together at the time of her birth. Their relationship was tumultuous. Mr. F. often resided elsewhere for weeks at a time. The evidence of the parties differs as to when the parties officially separated but I note that an Application was filed in February 2013 by the Ministry of Social Development on behalf of Ms.

M. seeking child support from Mr. F., which would tend to indicate that the parties were, in fact, living separately. It is clear, however, that in June 2013 efforts to reconcile had failed and the parties separated permanently. [ 2 ] On July 9, 2013, Ms. M. filed an Application for guardianship, supervised parenting time, parental responsibilities, and a protection order. She obtained an Ex Parte Protection Order on that day which prohibited Mr. F. from having any contact with her or with S. That Order was cancelled on November 12, 2013. On July 15, 2013, Mr.

F. replied to Ms M.’s Application opposing the relief sought and seeking, inter alia, an order prohibiting Ms. M. from relocating outside the Prince George area and a cancellation of the Protection Order. [ 3 ] On September 8, 2013, Ms. M. moved to Kelowna with S. She did not provide any notice of the move to Mr. F. Mr. F. filed a Notice of Motion November 14, 2013, seeking an interim order requiring Ms. M. to return S. to Prince George. On January 9, 2014, Judge Daley made an Interim Order “without prejudice” granting Mr.

F. interim supervised parenting time with S. and setting two issues for hearing: whether Mr. F. should have supervised parenting time and whether Ms. M. should be required to return S. to Prince George. [ 4 ] The hearing with respect to those two issues began June 13, 2014. The continuation set for September 18, 2014 was adjourned at the request of Mr. F. The hearing continued January 12, 2015 and February 12, 2015. The primary issue turning on the evidence of the parties is whether Mr.

F. is the perpetrator of family violence, although, of course, any conduct by the parties that affects considerations enumerated in s. 37 of the Family Law Act (FLA) regarding the best interest of the child, will also be relevant. The determination of that issue is relevant to both the determination of whether Mr. F.’s parenting time with S. should be supervised and the issue of relocation. 1. Was Mr. F. the perpetrator of family violence? [ 5 ] Ms. M. says that Mr. F.’s parenting time with S. should be supervised because he has been violent to Ms.

M., has a violent history and suffers from PTSD, and because he has been rough with S. and, on the only occasion that he has been left alone with S., caused injury to her. Mr. F. does not deny causing the injury to S. but says it was accidental. Although he admits that the acts complained of by Ms. M. occurred, he denies that they constitute he acts of family violence as defined in the FLA . [ 6 ] Ms. M. testified that she never left S. alone with Mr. F. until January 2013 when S. was four months old. On one occasion she left S. with Mr. F. while she went to go to the store.

She said that S. had been having a difficult day and she instructed Mr. F. to leave S. in her crib if he became impatient with her. A while after Ms. M. came home she went to change S.’s diaper and found that S.’s legs were bruised from the knee down. She asked Mr. F. about it and he said it was an accident. After that she never left him alone with S. [ 7 ] Ms. M. said Mr. F. had a very hard time with his temper and he would easily become frustrated with S. That frustration was physically manifested by him “slamming” her into a car seat and “ramming” her into her swing. Ms.

M. was so concerned about his behaviour that she got up every two hours at night to look after S. for fear of what Mr F. might do to S. if left to tend to her. [ 8 ] Ms. M. testified that sometime between January and June Mr. F. awakened from a bad dream and told her about it. According to Ms. M., Mr. F. told her he dreamt that he had cut up S. into little pieces and was scrambling to hide the bits of her body before Ms. M. got home. Although this was a dream, Ms. M. said she was quite alarmed because the details of the dream were very similar to a real event that Mr.

F. had told her about on an earlier occasion. [ 9 ] Ms. M. testified that when she was about six months’ pregnant with S., Mr. F. told her about crimes he had committed in Ontario when he had been in the drug trade. She said he told her that he had been required to “dispose” of someone who hadn’t paid a drug debt, and that when his partner was upset about the murder, he then murdered his partner. She said Mr. F. told her he cut up their bodies in a bathtub and placed the parts in plastic bags filled with rocks and disbursed them about a lake. She said she was shocked and didn’t want to believe him.

However, after he told her he had a dream about S. that was so similar to his story about the murders, she was very concerned. Within a few days after that, Mr. F. told her that he felt jealous of S. because of the amount of time Ms. M. was spending with her. [ 10 ] Ms. M. testified that Mr. F. told her that he has PTSD as a result of traumatic incidents in his past in the army. She testified that he began to exhibited odd, paranoid behaviour, involving staring out the window and asking about vehicles parked outside. She has since discovered that Mr.

F. has a criminal record for domestic assault for which he served a jail sentence. [ 11 ] Ms. M. testified that in January 2013, she and Mr. F. got into an argument when she found videos of S. interspersed with pornography and dating sites on the computer. She said most of their arguments were related to that subject. She admitted that she pushed his lunch box off the dryer and it hit the ground. During the argument, she says Mr. F. grabbed her in a bear hug and squeezed her very hard. She did not go to the doctor or tell the police about that incident. In February, Ms. M. asked Mr.

F. to leave and they separated.

[ 12 ] However, they attempted to reconcile and they were again together in March 2013. Early one morning they got into an argument which escalated to the point that Ms. M. again asked Mr. F. to leave. She said he went up the hallway and punched the bedroom door so hard that the door and the door frame were broken. Ms. M. provided photographs of the damage which corroborate that description. She raised her hand and pointed at the door, telling him he needed to leave. She said he ran at her like a bull, grabbed her and squeezed her very hard. She struggled but could not escape.

While squeezing her, he slammed her into a wall. As a result of this event she suffered considerable pain and she attended her doctor and received pain medication. She said that she had difficulty picking up S. for several days because of extreme pain. She did contact the police, and spoke to Cst. Ingham, but did not press charges because, she said, she was too afraid. [ 13 ] The parties separated at that time, but carried on a dating relationship. The arguments continued however, and when they occurred Mr. F. clenched his fists hard enough that his wrists turned white. [ 14 ] On July 9, 2013, Ms.

M. was present at court for an appearance on the child support application filed by the Ministry. Mr. F. was also there, along with several supporters. Among them were women Ms. M. described as “undesirables” and a man she knew as “P.” whom Mr. F. had told her on earlier occasions was a major heavy drug dealer. She said that she was very afraid of P. and the others because of a discussion Mr. F. had in her presence with another friend of his in June 2013 about how easy it is to have a wife or spouse murdered. Mr.

F. had led her to believe that “P.” had such “connections” and that it was a simple matter to “throw someone a crack rock to do your dirty work.” She said she had never spoken to “P.” before but at the courthouse he came up to her and said “hello”. They had never spoken before and she felt that for him to greet her was out of character. She interpreted his behaviour as intimidating. She said she sought a protection order that day because Mr. F. had asked to see S. and she was afraid to leave S. alone with him and afraid to supervise the visits herself, and because Mr.

F. was keeping company with the people she saw at the courthouse; she felt that they were dangerous and might do away with her at his request. As a result of that interaction, she also attended at Social Services and sought their assistance to move her residence to a different part of town and she remained in hiding until she left to go to Kelowna. [ 15 ] In September she applied for social housing in Kelowna and made arrangements to move away. When she moved, she said it was due to fear of Mr. F.

However, since she arrived she was able to establish herself in secure, sheltered housing and obtain part-time work and she has now embarked on an effort to start up a small catering business. [ 16 ] Mr. F. agreed that he had little to do with S. aside from feeding her occasionally. He said that was partly due to his work shifts making him unavailable and partly due to living with S. and Ms. M. only some of the time due to their arguments. He said Ms. M. limited his time with S. [ 17 ] He acknowledges the episodes of physical confrontation described by Ms. M.

In the January incident, he admits that he was angry and insulted when Ms. M. rebuffed his sexual advances and when she shoved his lunchbox towards him, he admits that he grabbed her hand and pulled her in close, hugged her tight and in the course of that they fell into a wall. [ 18 ] With respect to the March incident, he says that he had been away at a firearms course all day and had not responded to her text and calls. She was upset about that, and they argued. He was upset and unable to sleep.

When the baby awakened early in the morning, he said tried to help and was rebuffed and was further frustrated and upset. He admits that he backhanded the door with such force that it broke. He said Ms. M. heard that and asked him to leave. He said his reaction was to get very close and “hold” her. He said he was strong enough that he picked Ms. M. up and brought her into the spare bedroom where his bed was; he said they tripped and Ms. M. went up against the wall. He agreed that Ms. M. slammed into the wall. [ 19 ] With respect to the bruising incident involving S., Mr.

F. says that S. was cranky and he didn’t know how the bruising happened. He said he took her out of her car seat and put her on the couch to change her diaper and she fell when he went to get a diaper and he grabbed her. He said “it could have happened then.” [ 20 ] Mr. F. agreed he told Ms. M. he had dreams of harming S., but said in Court that he dreamed that she had been stung by a bee and that he ran to her room to check that she was okay. He testified “I never said I had an intention to harm S.” [ 21 ] Mr. F. did not dispute that when he becomes angry with Ms.

M., he clenches his fists, but he commented that he has generally left the house to cool off. He said they had attended couples counselling but he found it was not helpful because he didn’t respond in the way that Ms. M. wanted. He took no counselling for anger management. [ 22 ] Mr. F. acknowledges that he had a number of friends and supporters with him when he attended court July 9, 2013 and that Ms. M. had contact with them, although he did not see it occur. He said he asked them not to talk to her. He did not challenge Ms.

M.’s description of them as “undesirables”, nor her description of “P.” as a high level drug dealer with “connections”, nor deny her account of his conversation regarding how easy it was to have a wife murdered. [ 23 ] I note Mr. F. said nothing whatsoever to contradict Ms. M.’s evidence about telling Ms. M. he had murdered two men, dismembered their bodies, and disbursed the bodies in a lake in Ontario. Her evidence on that point stands unchallenged in any way. If this story told by Mr. F. is true, then Mr.

F. is a person with a history of and willingness to perpetrate the most extreme violence that a person can commit. If he told this story to Ms. M. but it was false, it would absolutely justify in her a fear that he is a man willing to do murder if it serves his purposes.

Similarly, he did not dispute her evidence that he has a prior conviction for domestic assault for which he served a jail sentence. [ 24 ] He admitted that her description of him as having Post Traumatic Stress Disorder was accurate, although he said it stemmed not from incidents in his military career, but rather that it was self-inflicted, the result of his lifestyle choices involving chemical addiction. He said that a side effect of that lifestyle is psychosis and paranoia.

He said he has been involved with a 12 step program for many years. [ 25 ] When cross-examined about his Affidavit filed July 15, 2013 opposing the protection order, attesting that Ms. M. exaggerated that he had never slammed her into a wall, that he “closed the door and the latch came off”, and that he had been never been diagnosed with PTSD, Mr. F. admitted that Ms. M. could legitimately feel that she had been slammed into a wall, that Ms. M. was not exaggerating,

and that he had, in fact, been diagnosed with PTSD. DECISION Re: Family Violence [ 26 ] I took note of the physical appearance of each of the parties in Court. Ms. M. is a slim woman of average height who appears to be fit. Mr. F. appears to be a very well built man who gives the impression of considerable strength. [ 27 ] There is no dispute on the evidence that the January and March episodes of physical violence occurred, although in Mr. F.’s opinion, they were not “aggressive” on his part, and therefore, he argues, they were not family violence. In my view, that position is completely untenable.

There is no dispute that Mr. F. and Ms. M. were both upset and angry. There is no suggestion on the part of Mr. F. that his action in grabbing and holding Ms. M. was affectionate, nor protective, nor that she consented to it in any way. He suggested that she had raised her hand in a fist in the March incident, but his evidence was that she had backed away from him before she did that and that he was heading towards her.

In that scenario, he was clearly the aggressor and if she had made a fist (which she denies) such an action would have been consistent with self-defence, not aggression on her part. [ 28 ] It must be remembered that in the March incident, the physical confrontation was preceded by Mr. F.’s slamming the bedroom door with such force that both the door and the jam were broken. That is an obviously violent act which could only, in my view, be interpreted as threatening. It is clear from the accounts of both parties that Mr. F. used his vastly superior strength to grab Ms.

M. in a bear hug, hold her in that position despite her struggles, and crash her into a wall. I accept her evidence that she was injured as a result. He did not explain why he chose to pick her up or carry her into his bedroom, if his purpose was not “aggressive.” I find that Mr. F. perpetrated a violent assault against Ms. M. on both occasions. [ 29 ] The breaking of the door was obviously property damage but in that context it was both an expression of anger towards Ms. M. and a threat directed at her.

After all, what point is there in backhanding and breaking a door in the context of an argument except to suggest the desire and ability to break Ms. M.? The fist clenching is another behaviour intended to instill fear in the observer. There is nothing reassuring about the fact that when Mr. F. is angry and makes fists he “sometimes” leaves to cool down, given that at other times he has assaulted Ms. M. [ 30 ] It is particularly concerning to me that Mr.

F. is unable or unwilling to recognize his actions for what they really were, since he both minimizes his behaviour in the extreme while simultaneously blaming Ms. M. both for his anger and his behaviour. Whatever his cognitive distortions may be, he obviously sees nothing wrong with his behaviour and therefore I cannot have any confidence that he will not repeat such behaviour whenever he feels like it, whether to Ms. M., to S., or any other person in a domestic relationship with him. [ 31 ] On top of all of that, despite the fact that Mr. F. admits these events occurred, it was nevertheless suggested to Ms.

M. and to this Court that Ms. M.’s attendance upon her doctor and her reporting of the incident to the police at the time, were really a tactic in anticipation of litigation; that is, an effort to fabricate family violence to justify her actions later on. Given that Mr. F. admits the events did in fact occur, the suggestion that Ms. M. is using them as a tactic is absurd. I find that suggestion and submission quite offensive and a further indication that Mr. F. has no insight into his assaultive behaviour or its consequences. [ 32 ] I find that Mr. F. perpetrated family violence upon Ms.

M. and that this family violence was perpetrated in the presence of S. 2. Should Mr. F.’s parenting time with S. be supervised? [ 33 ] There is no dispute that S. was bruised while in Mr. F.’s care. He says he does not know how that happened, but it “might have been” when he was changing her diaper on the couch. It was suggested to Ms. M. that it happened because S. rolled off the couch and was caught by Mr. F. Ms. M. commented that was the first time she had heard that explanation.

However, she pointed out that S. had not, at that point, developed the ability to roll over, so she thought it was extremely unlikely that could have occurred. She did comment that S. had a tendency to kick when her diaper was being changed, but that at no time had S. ever sustained bruises while she was in Ms. M.’s care. [ 34 ] I find that Mr. F.’s account of what happened was vague and minimal in the extreme. It does not explain at all how S. might have been bruised.

A baby that young has no responsibility for its movements, so whatever happens is either as the result of accident (such as a caregiver falling while holding the child), negligence, or malfeasance on the part of the caregiver. Mr. F. seems to suggest that the injuries may have been the result of accident, but he does not explain what that accident was, nor how it occurred (without negligence on his part), nor how the injuries were caused. Certainly Mr. F. does not acknowledge any inattentiveness, or the use excessive force, or indeed any personal responsibility whatsoever for the injuries she sustained.

I note that Mr. F. commented in his account that S. was “cranky”, which I find to be very odd - and rather telling. It appears to me that Mr. F. is suggesting that her crankiness has something to do with how she became injured while in his care. He thereby shifts the responsibility for the cause of her injuries to her - a 4 month old baby. I find this attitude on the part of Mr. F. very disturbing. [ 35 ] It is clear that on the only occasion during which Mr. F. was left alone with S. in his care, she suffered injuries.

Given her age and stage of development at the time and the lack of any satisfactory account of “accident” on the part of Mr. F., as well as his comment that S.’s “crankiness” somehow relevant to how she sustained the bruises, I am not satisfied that those injuries occurred due to accident. I find that the injuries were caused by Mr. F., perhaps due to anger or frustration brought about by S.’s “crankiness”. Given that Mr. F. assaulted Ms.

M. repeatedly, when angry or frustrated, and that he did so in the presence of S., I am of the view that S. would not be safe in her father’s unsupervised care and his parenting time with her must be supervised. 3. Should Ms. M. be required to return to Prince George? Which provisions of the FLA apply, s. 46 or Division 6?

[ 36 ] The Family Law Act does permit the relocation of a child’s residence, but the requirements differ depending upon which

section of the FLA applies to the situation. There is no dispute that Ms. M. relocated S. to Kelowna without providing any notice to Mr. F. The evidence before me is that there was no written agreement nor order regarding parenting arrangements, nor any court orders at all, prior to the Protection Order granted by Judge Klaver on July 9, 2013. Where there are no written agreements or orders regarding parenting time, but informal arrangements are in place, then s. 48 of the FLA applies to restrict any changes to informal parenting arrangements once they have become a part of the child’s routine: Informal parenting arrangements 48

(1) If (

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

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

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

a) an agreement respecting parenting arrangements, or (

b) an order under

section 45 [orders respecting parenting arrangements] . [ 37 ] It is also clear from the evidence that after the final separation of the parties in June 2013, Mr. F. did not see S. at all because Ms. M. did not allow it. Thus there were no informal parenting arrangements in place. I find, therefore, that the requirement of s. 48(1) of the FLA that a guardian must consult with the other guardian before changing any such arrangements does not apply, because there were no established parenting arrangements creating a routine to be disrupted. [ 38 ]

Section 46 of the FLA applies to relocations of the child’s residence where no orders or written agreements have been made with respect to parenting arrangements. For ease of reference, I reproduce that

section as follows: Changes to child's residence if no agreement or order 46

(1) This

section applies if all of the following circumstances exist: (

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

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

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

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

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

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

b) must not consider whether the guardian who is planning to move would do so without the child. [ 39 ] Ms. Zeitche, on behalf of Ms. M., argues that in these circumstances, s. 46 is the applicable

section of the FLA on the basis that prior to Ms. M. leaving for Kelowna on September 7, 2013, there were no orders regarding parenting arrangements and there was an application filed in court by Ms. M. (on July 9 2013) seeking relief under s. 45(1) of the FLA . If s. 46 governs then there is no requirement for Ms. M. to give notice of her intention to relocate, and in determining whether the relocation is permissible, I must consider only the reasons for the move and the best interests of the child under s. 37. [ 40 ] Mr. Hutchinson, on behalf of Mr.

F., argues that s. 45 and s. 46 do not apply to this situation because Ms. M. did not apply to the court for permission to relocate prior to moving to Kelowna. He agrees that Division 6 does not apply because there are no orders or written agreements in place. He argues that since the FLA does not have provisions within it permitting the court to consider the propriety of a relocation after the fact, Ms. M. has no avenue to seek relocation after the fact, and I infer Mr.

Hutchinson to be arguing that corollary of that argument is that the court has no avenue to apply s. 46(2) (best interest of child and reasons for the move) to the determine whether the move should be ratified retroactively. [ 41 ] Mr. Hutchinson also argues that despite the fact that Division 6 does not apply to this situation (because it applies only where there is an order or written agreement in place), the court should nevertheless require Ms. M. to satisfy the provisions Division 6 to determine whether the move should be ratified or the child returned to Prince George.

[ 42 ] Division 6 would require Ms. M. to give Mr. F. 60 days’ notice of her intention to relocate, unless exempted from doing so by a court, and in determining whether to permit such a relocation, I would be required to consider the child’s best interests under s. 37 AND the factors enumerated under s. 69(4) as to whether the proposed move is in good faith and reasonable and workable arrangements to maintain the relationship with the child’s other guardian have been proposed. Mr. Hutchinson also argues that Ms.

M. has not provided evidence that she had greater than substantially equal parenting time, so she must also satisfy the court under s. 69(5) of Division 6. [ 43 ] For ease of reference I will reproduce Division 6 of the FLA as follows: Division 6 — Relocation Definition and application 65

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

a) a guardian, or (

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

(2) This Division applies if (

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

b) a written agreement or an order respecting parenting arrangements or contact with the child applies to the child. Notice of relocation 66

(1) Subject to subsection (2), a child's guardian who plans to relocate himself or herself or a child, or both, must give to all other guardians and persons having contact with the child at least 60 days' written notice of (

a) the date of the relocation, and (

b) the name of the proposed location.

(2) The court may grant an exemption from all or part of the requirement to give notice under subsection (1) if satisfied that (

a) notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child, or (

b) there is no ongoing relationship between the child and the other guardian or the person having contact with the child.

(3) An application for an exemption under subsection (2) may be made in the absence of any other party. Resolving issues arising from relocation 67

(1) If notice is required under

section 66 [notice of relocation] , after the notice is given and before the date of the relocation, the child's guardians and the persons having contact with the child must use their best efforts to cooperate with one another for the purpose of resolving any issues relating to the proposed relocation.

(2) Nothing in subsection (1) prevents (

a) a guardian from making an application under

section 69 [orders respecting relocation] , or (

b) a person having contact with the child from making an application under

section 59 [orders respecting contact] or 60 [changing, suspending or terminating orders respecting contact] , as applicable, for the purpose of maintaining the relationship between the child and a person having contact with the child if relocation occurs. Child may be relocated unless guardian objects 68 If a child's guardian gives notice under

section 66 [notice of relocation] that the guardian plans to relocate the child, the relocation may occur on or after the date set out in the notice unless another guardian of the child, within 30 days after receiving the notice, files an application for an order to prohibit the relocation. Orders respecting relocation 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 thechild'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 ofthe 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 timewith 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 if thechild's relocation were not permitted. If relocation permitted 70

(1) If the court makes an order under

section 69 [orders respecting relocation] that permits a child's relocation, the court may makeany of the following orders: (

a) subject to subsection (2) of this section, if the order made under

section 69 affects an agreement or order that allocates parentingarrangements between the relocating guardian and another guardian, an order under

section 45 [orders respecting parentingarrangements]or 47 [changing, suspending or terminating orders respecting parenting arrangements], as applicable; (

b) any order necessary to ensure that the relocating guardian complies with the terms of the order permitting relocation, including anorder to do one or more of the following: (

i) give security in any form the court directs; (ii) transfer specific property to a trustee named by the court.

(2) In making an order under subsection (1), the court must seek to preserve, to a reasonable extent, parenting arrangements under theoriginal agreement or order. Not a change in circumstances 71 The fact that an order is made that prohibits a child's relocation is not, in itself, a change in the child's circumstances for the purposesof

section 47 [changing, suspending or terminating orders respecting parenting arrangements]. [44] Counsel provided me with a number of case authorities, for which I am grateful:

a) Heppner v. Heppner BCPC, July 4 2014 (Court file No 14570 Williams Lake Registry);

b) DeJong v. Gardiner 2013 BCSC 1303 ;

c) AJD v. EAE 2013 BCSC 2160;

d) LJR v. SWR 2013 BCSC 1344;

e) TC v. SC 2013 BCPC 217 , 2013 BCPC 0217;

f) DGS v. JDS 2014 BCSC 2183. [45] On the question of whether Division 6 would apply where applications have been made to court but there are no orders in place,

Ms. Zeitche provided the decision Heppner (supra). In that case, the Honourable Judge Church was called upon to decide whether theprovisions of Division 6 of the FLA, including the requirement for notice, applied to a situation in which applications regarding parentingarrangements had been made to court but there were no orders in place aside from a Bail Order prohibiting the husband from havingcontact with the wife, in a situation where the husband faced charges for assaulting the wife. The Court in that case held that Division 6did not apply and that the wife could relocate without notice. In the alternative, if Division 6 did apply, Judge Church found thatpursuant to s. 66(2)(

a) applied to permit the move without providing notice, due to the family violence perpetrated by the husband in thatcase. [46] This case did not make a finding as to whether a protection order is an order for the purposes of Division 6, but I cannot see anyreason for that to be the case. Neither counsel suggests that a Protection Order qualifies as a court order under s. 46 or Division 6. Aprotection order is not an order making provision for parenting responsibility or parenting time under s. 45(1)(

a) or (

b) so I do not seehow it would qualify as an order under either s. 46 or Division 6. [47] The cases of AJD v. EAE 2013 BCSC 2160 (“AJD”) and LJR v. SWR 2013 BCSC 1344 (“LJR”), address the question ofwhether interim orders, as opposed to final orders, trigger the application of

part 6 of the FLA. [48] In AJD, the question was whether or not an interim order establishing parenting arrangements made after the notice to relocatewas given was an “order” for purposes of s. 46, and Division 6. Madam Justice Harris considered the conflicting decisions of LJR(supra) where Mr. Justice Betton held that interim orders trigger Division 6 as long as they deal with parenting arrangements, and SJF v.RMN 2013 BCSC 1812 where Mr. Justice Punnett held that only final orders triggered Division 6. Madame Justice Harrisagreed with the decision of Mr.

Justice Betton, that the interim order establishing parenting arrangements did trigger the application ofDivision 6. [49] In the case at bar, there was an interim order providing for supervised parenting time for Mr. F. made by Judge Daley, byconsent, on January 9, 2014. However, that interim order was expressly made “Without Prejudice” and also provided that the issue ofwhether Ms. M. must return S. to Prince George was to be set for hearing. It seems to me when an order is expressly made “withoutprejudice”, it must be treated as such.

Therefore, it cannot be used to prejudice one side or the other; in this case, to substantively changethe provisions of the FLA applicable to the facts of the case. That would render the “without prejudice” provision, the basis upon whichthe consent was given, meaningless. I find that the fact that an interim “without prejudice” order was made ought not to be consideredan “order” for the purposes of s. 46 and Division 6, and accordingly does not trigger the application of Division 6 instead of s. 46. [50] However, Mr.

Hutchinson argues that Divisions 6 may be applicable by default, as it were, where s. 46 does not apply. On thatissue, Mr. Hutchinson drew to my attention the DeJong v. Gardiner 2013 BCSC 1303 (“Dejong”). [51] In Dejong, the parties were the parents of a child and had lived together in B.C. until the mother went to Calgary for a visit andthen decided to stay there with the child. Thereafter, the father sought the child’s return. There were no allegations of family violence.

The court found that both parents were good parents who were equally capable of caring for the child and had done so without problemsin the two years between the move to Calgary and the date of hearing. The father commenced an application for the child to be returnedfrom Calgary. The court found that neither s. 46 nor Division 6 of the FLA applied. After considering the factors enumerated in s. 37,the court ordered a shared parenting regime to maximize the contact with both parents, which therefore required the return of the childreturned to B.C. [52] Mr.

Hutchinson argues that Dejong stands for the proposition that where the move in question has already occurred, the courtcannot use the provisions of s. 46 to decide whether a move is proper. With respect, that is not what Dejong says. The court found thatDivision 6 did not apply, since there were no prior orders or written agreements, and that s. 45 and s.46 did not apply because the mothermoved to Calgary before the proceedings were commenced and thus s. 46(

c) did not apply (para 63). [53] That is not the case before me. Ms. M. had, in fact, commenced a court application respecting parenting arrangements prior tomoving to Kelowna. It is true that she did not commence an application seeking permission to move, but that is not what s. 46 requires.

Section 46 states that it applies to any case where there are no orders or written agreements and an application has been made under s.45(a) (parenting responsibilities) or (b) (parenting time) and (

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

Section 46 does not require that s.46(

b) and (

c) have to occur at the same time or in a particular sequence. Nor does it require that the relief claimed in the applicationunder s. 46(

b) to the court for parenting arrangements include an application to relocate; if that were intended, then it would be a simplematter for the legislators say so, or to mirror the provisions of s.66 that advance notice must be given to the other guardian and/or anapplication to move has been made to the court in advance, but they did not do that. I must assume that the provisions of s. 46 are lessonerous than Division 6 for a reason. Even if s. 46 is prospective in its language, it still addresses what considerations are appropriatewhere there are no existing orders or written agreements in place.

There is nothing in the section, to my mind, that ousts the applicationof those considerations simply because the move has already occurred. [54] However, in my view, the decision of Mr. Justice Betton in DGS, is instructive on the retrospectivity issue. In that case, therewas a written separation agreement in place, but the mother moved to the children to Arizona without notice to the father or approvalfrom the court. Mr. Justice Betton said “since there is a written agreement, s.66 of the FLA requires that Division 6 of

part 4 governsthis application” (para 66). In DGS, the fact that the mother had relocated prior to making application regarding the propriety of therelocation did not oust the provisions of Division 6. Similarly, in LJR, Mr. Justice Betton considered the application of both s. 46 andDivision 6 where the applicant mother had moved to Tennessee before the relocation was adjudicated. Ultimately he decided thatalthough no written agreements or final orders existed, an interim order providing for parenting arrangements did qualify to render theprovisions of Division 6 applicable.

It was a corollary of that decision, I infer, that if he had not found that the interim order had thateffect, then s. 46 would have applied, regardless of the fact that the mother had already moved to Tennessee. I conclude, therefore, thatthe fact that Ms. M. moved prior to obtaining court approval does not oust the application of s. 46. [55] There is no basis that I can see to apply the more restrictive provisions from Division 6 applicable to situations where a movewill change well established, parenting arrangements, formalized by written agreements or court orders, to a situation where they do not

exist. I therefore decline to import the provisions of Division 6 to my analysis of whether Ms. M.’s move to Kelowna was proper andwhether she should return S. to Prince George. Accordingly, the authorities provided by counsel as to how to apply Division 6 toparticular facts are of limited assistance to the decision I must make, which is how to apply s. 46 to the facts of this case. [56] Parenthetically, if Mr. Hutchinson’s argument is correct, and the test in s. 46 cannot be applied retrospectively because thelanguage of s. 46(1)(

c) is prospective (in that it refers to a guardian’s “plans” to move,) then that same line of reasoning will oust theapplication of the provisions of Division 6, since that division also refers to a guardian’s “plans to relocate”. What is sauce for the gooseis sauce for the gander. Theoretically, if the considerations and restrictions enumerated in either s. 46 or Division 6 cannot apply to asituation in which the move has already occurred, then in my view the court must simply apply the provisions of s. 37, the best interestof the child, as the Court did in Dejong. [57] Interestingly, in DGS, Mr.

Justice Betton held that even where the relocating mother had failed to comply with the provisions ofs. 69, the move was not in good faith, and workable arrangements for preserving the relationship with the other parent had not beenmade, the best interests of the children under s. 37 of the FLA must be paramount and in that case he allowed the relocation. [58] In view of all of the foregoing, I conclude that the provisions of the FLA which apply to the case at bar are those enumerated ins. 46(2) of the FLA.

S.46 FLA - Analysis of whether the relocation should be allowed or S. be returned to Prince George: [59] When Ms. M. moved to Kelowna, there were no orders or written agreements, and no informal arrangements regardingparenting. In that case, under s. 46 there is no presumption in favour of Prince George or Kelowna, as noted by Madam Justice Sharma,in A.M.D. v. K.R.J., 2015 BCSC 946 , (“AMD”)where she contrasted the provisions of Division 6 with S. 46, noting: [47] This differs from s. 46 which does not create any evidentiary or legal presumptions about parenting or location. It must havebeen contemplated that the

section would only be used for initial orders, when parties had not yet agreed on a parenting scheduleand, thus, there was not yet a signed agreement or judicial consideration of what is in the best interests of the child. S. 46 (2)(

a) Reasons for the move: [60] Ms. M. gave evidence that her decision to relocate to Kelowna occurred after she made her initial application for a protectionorder and parenting arrangements on July 9, 2013. I find that decision was made partly due to the history of family violence perpetratedby Mr. F. and partly because her fears were exacerbated by the interaction she had with Mr. F. and his supporters at the courthouse. Given the history of violence inflicted upon her by Mr.

F., his story to her about having murdered two people in Ontario, and hisremarks in June 2013 just before they separated permanently about how easy it was to have a wife or a spouse murdered in PrinceGeorge, and her uncontradicted evidence about the character and antecedents of Mr. F.’s supporters, I am satisfied that she genuinelybelieved her life was in danger. Her behaviour in immediately arranging with Social Services to be moved to a new residence andremaining in hiding until her move to Kelowna is consistent with a belief that her life was in danger. Mr.

F. submits that it is alsoconsistent with simply intending to deprive him of parenting time, but in my view, that is simply the result, not the reason. I note thatMr. F. testified that Ms. M. encouraged him to relocate to the Kelowna area and that Ms. M. has been cooperative with facilitating hissupervised parenting visits with S., neither of which is consistent with an intention to deprive him of parenting time altogether. I amsatisfied that her fear of Mr. F. and his friends was legitimate and that her reason to leave town was genuine. S. 46(2)(a) - Best interests of the child under S. 37 FLA: [61] Mr.

F. suggests that there should be a shared parenting regime and that Ms. M. should be obliged to return to Prince George tofacilitate that, or if she is not required to move back to Prince George, that he should have extended periods of parenting time (severalweeks) with S. on his own, all of which should be unsupervised. I have already found that Mr. F.’s parenting time must be supervised. Imust now consider what parenting arrangements are in the best interest of the child in these circumstances.

I note, in particular, theremarks of Madam Justice Sharma in AMD that there is no presumption in favour of one location or the other. [62] In assessing what parenting arrangement is in the best interest of S., I will consider the factors enumerated in s. 37 of the FLA. S. 37(2)(

a) The child’s health and emotional well-being: [63] The evidence before me indicates that S. is a healthy baby and well cared for by her mother. Mr. F. has never undertakenregular care for the S. and there is no evidence to support his contention that he is capable of ensuring her health or emotional well-being. On the contrary, the evidence before me is that on the only occasion she was left with him, she was injured and that he committedfamily violence in her presence, which in my view, must harm her emotional well-being. S. 37(2)(

b) The child’s views: S. is too young to consider her views:

[ 64 ] Section 37(2)(

c) the nature and strength of the child’s relationship with significant others: S. has a strong bond with her mother as her sole caregiver and has had visits with Mr. F. on five occasions since the separation. I find there was little relationship between S. and her father when they were together and there is obviously less since he has seen her only five times since the separation. Neither party has any extended family in the Prince George area. Ms. M.’s parents reside in Kamloops, approximately a two hour drive from Kelowna and S. has contact with them. S. 37(2)(

d) The history of the child’s care: [ 65 ] Ms. M. has had sole care of the child since her birth, both before and after the separation. Before the separation Mr. F. indicates that he did not have much to do with S. because there was not much time after work, but he did feed her occasionally. The evidence is clear that on the one occasion that S. was left in his care she was injured. S. 37(2)(

e) The child’s need for stability: [ 66 ] S.’s most important bond is with family relationships, not places or institutions, because she is so young. In this case, her most important family relationship is with her mother. As far as stability of her parents is concerned, I note that when Ms. M. was in Prince George, she was required to move out of the townhouse she had shared with Mr. F. and to move twice before her move to Kelowna.

She testified that because she does not drive, her options for housing in Prince George were limited geographically and given that her only income was social assistance, the only housing she could afford was in very unsafe areas of town. It is true that she had been accepted to sheltered housing prior to the parties final separation, but she turned down the offer because she and Mr. F. were still attempting to reconcile. That opportunity has passed. Thereafter she applied to sheltered housing but had been informed that the wait list was two years long.

Accordingly, it would appear that there is a lack of secure and stable housing for Ms. M. in Prince George. In Kelowna, Ms. M. has found secure, sheltered housing that is within her means and she will only be required to move if her income improves to such an extent that she can afford appropriate housing elsewhere in town. [ 67 ] Mr. F. provided no evidence about his stability, aside from indicating that he has been out of work at various times due to injuries and illness due to treatment for Hepatitis C. S. 37(2)(

f) The ability of each guardian to exercise his or her responsibilities: [ 68 ] With respect employment, Ms. M. was on social assistance in Prince George and is on social assistance in Kelowna. However, she does have a part-time job in her housing development and is taking steps to establish a catering business. I note that she does suffer from instability of income in the sense that Mr. F. has failed to pay child support for S. on repeated occasions, but there is no reason for me to believe that would be any different if Ms. M. lived in Prince George. Nevertheless, Ms.

M. is clearly capable of looking after S. properly; she provided photos of her home and it is quite suitable for a child. There is a daycare (where Ms. M. works) located within the sheltered housing development where she lives. Ms. M. has taken a parenting course in addition to Parenting After Separation and is attending counselling for herself and S. in Kelowna. [ 69 ] I have no information about Mr. F.’s living arrangements. Mr. F. has completed the Parenting After Separation course. [ 70 ] In terms of financial stability, Mr.

F. has been significantly unemployed either due to the treatment he underwent for Hepatitis C or injuries he sustained in a motor vehicle accident. Mr. F. testified that he was unable to visit S. (and presumably unable to pay child support) because he was in such financial difficulty that he was unable to feed himself. Obviously if he cannot even feed himself, he is incapable of meeting S.’s needs. His failure to provide child support as ordered has resulted in hardship for Ms.

M. (and therefore S.) because the child support he was supposed to pay was deducted from her social assistance even though he did not provide it. [ 71 ] Mr. F. testified that once he is back at work it will be really difficult for him to see S. because of the hours that he works. He also testified that although one of the nice things about being a truck driver is that he can work anywhere, he refuses to seek work in Kelowna. He acknowledged that Ms. M. had contacted him about moving there because of the countless opportunities she saw there, but he is not interested.

He prefers to remain in Prince George where he has his support group. I am not satisfied that Mr. F. has the capacity or the willingness to discharge his responsibility toward S. since he has not succeeded in doing so in the past and appears to have little interest in changing anything about his life in order to spend time with S.. [ 72 ] Mr. F. has been diagnosed with Hepatitis C. Ms. M. expressed concern that he did not take sufficient care with his personal hygiene to ensure that S. was not exposed to this illness because he left blood droplets about and used S.’s nail cutters.

He acknowledged this behaviour but is of the view that because, since the separation, he has undergone extensive treatment for Hepatitis C and is apparently no longer infected with this virus, this is not problematic. While his freedom from the virus is obviously very good news, I remain concerned about Mr. F.’s attitude toward S.’s safety, since he was contagious at the time he was with her. S. 37(2)(

g) Impact of family violence: [ 73 ] Family violence is a factor in this case. Mr. F. has perpetrated family violence on Ms. M. repeatedly, in the presence of S. In my view that behaviour cannot have anything other than a very negative impact on S.’s safety, security and well-being. S. 37(2)(

h) Impairment of parenting ability due to a parent’s resort to family violence:

[ 74 ] I find that Mr. F.’s parenting ability is impaired by his resort to family violence which is why I have found that any parenting time he has with S. must be supervised. Given S.’s age, such visits should be of short duration. It is not appropriate, in my view, that there should be a shared parenting regime in this situation. S. 37(2)(

i) The appropriateness of parenting arrangements requiring the child’s guardians cooperation: [ 75 ] It appears to me that the parties have succeeded in making arrangements for Mr. F.’s supervised parenting visits this far, although I realize there have not been very many visits. However, given Ms. M.’s legitimate security concerns, any parenting regime that required extensive cooperation would be unworkable. DECISION: [ 76 ] Having considered the facts and the law, Mr. F. has not satisfied me that Ms. M. should be required to return S. to Prince George. I am satisfied that Ms.

M.’s reasons for moving to Kelowna were proper and that it is in S.’s best interest that she remains there with her mother. Accordingly, Mr. F.’s Notice of Motion seeking to have S. returned to Prince George is dismissed and Ms. M.’s Notice of Motion seeking that any parenting time by Mr. F. with S. be supervised is granted. ____________________ S. K. Keyes Provincial Court Judge Province of British Columbia