B.M.D. v. C.A.F. Date:, 2016 BCPC 171

Citation: B.M.D. v. C.A.F. Date: 20160608 2016 BCPC 0171 File No: 1343408 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: B.M.D. APPLICANT AND: C.A.F. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M.J. BRECKNELL Appearing on their own behalf: B.M. Dumoulin Counsel for the Respondent: F. Stevens-Guille Place of Hearing: Prince George , B.C.

Date of Hearing: March 21, 22 and 23, 2016 Date of Judgment: June 8, 2016 INTRODUCTION [ 1 ] D.M.F., born [omitted for publication] (D.) is loved by all who know him. For the past few years he has lived equally in the homes of both his Mother, B.M.D. (Ms. D.) in Prince George, B.C., and his Father, C.A.F. (Mr. F.) in Tofield, Alberta. [ 2 ] Although they are no longer in a relationship both Ms. D. and Mr.

F., as well as their respective families acknowledge that, with some minor concerns, that each of them are exemplary parents to D. and each are completely able to care for, nurture, and love him while ensuring he will grow up enjoying his childhood and maturing into a fine young man. [ 3 ] However, D. will start Kindergarten in September 2016 which will require him to live predominantly in one community. Unfortunately, his parents have not been able to agree on where that should be leaving it to this Court to make that decision. Given the evidence presented in the trial of this matter it is not an easy decision.

THE ISSUES [ 4 ] The issues that must be resolved in D.’s best interests include:

a) Where will he primarily reside and how parenting time with him will be divided;

b) How will the parental responsibilities be distributed between his parents; and

c) How much child support will one parent pay to the other? THE LAW [ 5 ] In matters involving children, the Court must consider only the child’s best interests in determining parenting arrangements. In that regard the following provisions of the Family Law Act ( FLA ) apply in this case: Best interests of child 37

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following: (

a) the child's health and emotional well-being; (

b) the child's views, unless it would be inappropriate to consider them; (

c) the nature and strength of the relationships between the child and significant persons in the child's life; (

d) the history of the child's care; (

e) the child's need for stability, given the child's age and stage of development; (

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (

g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being.

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

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

(1) Only a guardian may have parental responsibilities and parenting time with respect to a child.

(2) Unless an agreement or order allocates parental responsibilities differently, each child's guardian may exercise all parental responsibilities with respect to the child in consultation with the child's other guardians, unless consultation would be unreasonable or inappropriate in the circumstances.

(3) Parental responsibilities may be allocated under an agreement or order such that they may be exercised by (

a) one or more guardians only, or (

b) each guardian acting separately or all guardians acting together.

(4) In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed: (

a) that parental responsibilities should be allocated equally among guardians; (

b) that parenting time should be shared equally among guardians; (

c) that decisions among guardians should be made separately or together; Parental responsibilities 41 For the purposes of this Part, parental responsibilities with respect to a child are as follows: (

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

b) making decisions respecting where the child will reside; (

c) making decisions respecting with whom the child will live and associate; (

d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location; (

e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity; (

f) subject to

section 17 of the Infants Act , giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child; (

g) applying for a passport, licence, permit, benefit, privilege or other thing for the child; (

h) giving, refusing or withdrawing consent for the child, if consent is required; (

i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive; Parenting time 42

(1) For the purposes of this Part, parenting time is the time that a child is with a guardian, as allocated under an agreement or order.

(2) During parenting time, a guardian may exercise, subject to an agreement or order that provides otherwise, the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child. Exercise of parental responsibilities 43

(1) A child's guardian must exercise his or her parental responsibilities in the best interests of the child. 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. LITIGATION HISTORY [ 6 ] On August 19, 2013, Ms. D. filed an Application to Obtain an Order seeking guardianship, parental responsibility, spousal support, retroactive child support and an order that D.’s primary residence be with her. [ 7 ] On August 21, 2013, Ms. D. filed a Notice of Motion seeking an order that D. not be removed from British Columbia. On that date she also filed an Affidavit alleging that Mr.

F. was threatening to come to Prince George to take D. back to Alberta. [ 8 ] On August 22, 2013, the Court granted the Ex Parte Order that D. not be removed from Prince George with that Order to expire on September 15, 2013. [ 9 ] On September 11, 2013, Ms. D. filed a further Notice of Motion seeking an order that D. not be removed from British Columbia and a further order that she and Mr. F. only communicate by email. In support of that Application she filed an Affidavit alleging that she was afraid that Mr.

F. would take D. once the Ex Parte Order expired and that she only wanted to communicate with him by email. [ 10 ] On October 2, 2013, Mr. F. filed a Reply contesting Ms. D.’s Application for spousal support and D.’s primary residence and in turn making claims for guardianship, parental responsibilities, parenting time and D.’s primary residence. [ 11 ] On October 29, 2013, Ms. D. filed a further Reply contesting Mr. F.’s claim for primary residence and parental responsibilities. [ 12 ] On October 30, 2013, a Family Case Conference was held in which Ms. D. and Mr.

F. agreed to interim joint guardianship and a shared parenting regime for D. on a two week alternating basis. [ 13 ] On January 24, 2014, the shared parenting regime was ordered to continue and to be reviewed in September or October 2014. [ 14 ] November 20, 2014, the Court ordered that Ms. D. was to be responsible for one of every four exchanges of D. and that the matter be further reviewed in May 2015. [ 15 ] On May 15, 2015, the Court ordered Mr. F. to pay to Ms.

D. child support in the amount of $200.00 per month. [ 16 ] On June 12, 2015, the shared parenting regime was ordered to be changed from two-week periods to three-week periods. In addition, it was ordered that in good weather months the exchange of D. would occur in Jasper, Alberta. Prior to this order Mr. F. had been responsible for almost all of D.’s travel, often by air at great expense. EVIDENCE Background [ 17 ] Ms. D. is 25 years old. She was born and raised in Prince George. She originally trained and practiced as a hairstylist and aesthetician.

Recently she changed careers and now works as an insurance agent, although she is taking further training to upgrade her credentials. [ 18 ] Mr. F. is 32 years old. He was born in Edmonton and raised in Tofield. He has worked as a geotechnical driller for several years. For some of that time he worked in the Prince George area. For many years he worked as an employee or as a contract driller. In 2015 he purchased his own drilling rig and now generally works in and about the greater Edmonton area. [ 19 ] Ms. D. and Mr. F. met in Prince George on New Year’s Eve 2009. In May 2010 they started living together.

By August 2010, Ms. D. was pregnant with D. He was born on (omitted) in Prince George. [ 20 ] In August 2011, the family moved to Tofield so that Mr. F. could pursue employment. They moved to a home on property owned by Mr. F.’s parents. Mr. F. continues to reside in that home today. [ 21 ] Once the family was in Tofield, Ms. D. contends that Mr. F. was away regularly for up to two to three weeks at a time to pursue his employment. Mr. F. acknowledged that was the case in the past but in later years and now with owning his own rig he no longer relies on work far from home. [ 22 ] In late 2011, Ms.

D. obtained work and D. was cared for by either Mr. F.’s mother or his sister. Ms. D. worked a variety of different office jobs until January 2013. [ 23 ] In early 2013, Ms. D. and Mr. F. separated as a result of Ms. D.’s infidelity. Soon after that situation came to light, Ms. D. returned to Prince George leaving Mr. F. and D. in Tofield. At that time Mr. F. was not working and was able to care for D. [ 24 ] Between February and May 2013 various attempts were made by Ms. D. and Mr. F. to reconcile their relationship. There were times during that period when D. was residing with Mr.

F. and other times when the family was reunited in both Prince George and Tofield. [ 25 ] By late May 2013, Ms. D. returned to Prince George permanently. D. remained with Mr. F. in Tofield until they both drove to Prince George in early July 2013 with the family’s furniture. [ 26 ] Mr. F. said he thought he was moving back to Prince George to resume cohabitation with Ms. D. and they had jointly found a

place they would be living in. Ms. D. said that she made it clear to Mr. F. that the relationship was over and she told him not to come to Prince George but he did anyway, something he acknowledged in an email. She was unable to give a concise explanation why, if that was the case, she signed a one year lease jointly with Mr. F. for a residence. [ 27 ] In spite of the dispute between them on how and when their relationship permanently ended, by September 2013, Mr. F. had returned to Tofield leaving D. in Ms. D.’s care pursuant to the then extant Court order.

D. [ 28 ] D. is described in glowing terms by everyone who gave evidence. He is variously described as loving, caring, bright, articulate, funny, happy, outgoing, charismatic, a good listener, well behaved, strong willed and a leader. He is healthy and has no medical or dental concerns. [ 29 ] D. is a very active boy.

In each household and with his extended families he participates in a variety of sports and activities including hockey, ball hockey, skating, swimming, lacrosse, T-Ball, biking, going for walks, ATV riding and snowmobiling, playing, board games, playing with a variety of pets, cooking and baking. [ 30 ] Both Ms. D. and Mr. F. provided the Court with numerous photographs of D. involved in a variety of situations including family events, sports participation, being with his pets and generally enjoying life.

In practically every photograph D. can clearly be seen as an engaged, involved and happy young boy. [ 31 ] Ms. D. did not describe, nor was she asked, how she disciplines D. Mr. F. and his partner described their discipline of D. as being a combination of getting out ahead of any bad behaviour to diminish it occurring and when it does occur, using verbal correction and time outs. No one suggested that D. was disruptive or unruly in either household or that either Ms. D. or Mr. F., or their partners engage in inappropriate discipline. Schooling [ 32 ] Ms.

D. had D. attend pre-school in Prince George in the 2014 – 2015 school year but he did not attend in the 2015 – 2016 school year. [ 33 ] Mr. F. has enrolled D. in the same pre-school in Tofield since September 2014. D. attends there three days a week for half a day. It is located in the same school Mr. F. proposes D. attend if he lives in Tofield. [ 34 ] D.’s pre-school teacher gave evidence. She did not note any changes in D.’s behaviour either before going to be with Ms. D. or upon his return.

She described D. as being able to assimilate both the two week and three week schedules he spends with his parents noting that he picks things up fast and gets into his routine very well. [ 35 ] The pre-school teacher also described D. as progressing well with his educational milestones and that he is fully ready to start Kindergarten. [ 36 ] Ms. D. proposes to send D. to a French Immersion school located approximately a ten minute drive away from her residence.

She advised the Court that she chose a French Immersion program as she believes it will enhance D.’s cultural, social and eventually career opportunities. She also advised that there is French Immersion education available in Prince George through to Grade 12. [ 37 ] Mr. F. proposes to send D. to a “Leader in Me” School located two blocks from his residence.

He advised the Court that he chose the school in part due to its proximity to his residence and in part because of the specialized and expansive education programming available through that type of program which is based on the “Seven Steps For Success” model. [ 38 ] In the event D. resides with Ms. D. he will attend full-time Kindergarten Monday through Friday from 8:30 AM until 2:30 PM. If D. resides with Mr. F. he will attend Kindergarten on a

schedule of either Mondays and Wednesdays and alternating Fridays or Tuesdays and Thursdays and alternating Fridays from 8:30 AM to 3:30 PM [ 39 ] Mr. F. also asked the Court to consider that both his mother and his partner are involved in the education system in Alberta and would be able to provide additional assistance to D. to enhance and enrich his education thereby increasing his opportunity to achieve at the highest level. [ 40 ] Mr. F. opposes D. missing any school to accommodate parenting time regardless of where he might reside. Ms.

D. is open to D. missing the occasional day of school in order to facilitate parenting time with the parent he will not regularly be residing with. New Relationships [ 41 ] Ms. D. started dating Mr. S. B. in the summer of 2013 and they started living together in August 2015. Mr. B. is a long time employee with a national courier company. He works a series of split shifts which he can adjust to provide additional childcare time for D. At present he is able to care for D. throughout the workday on Monday because he does not work until Ms. D. is home from work. [ 42 ] Mr.

B. described a variety of activities he and D. participate in together when he is caring for D. either alone or jointly with Ms. D. [ 43 ] Mr. F. met D.D.(2) in the spring of 2014. They began dating in August 2014 and they started living together in December 2015. Prior to moving in together Mr. F. consulted with D. about the plan and he endorsed the idea. Ms. D.(2). is a success coach with an Alberta school district located close to Tofield. [ 44 ] Ms. D. stated that she believes it to be very important for D.’s upbringing that all the adults get along to ensure D.’s best interests are always a priority.

Present Living Arrangements [ 45 ] Ms. D. and Mr. B. reside in a townhouse near many amenities in a residential area of Prince George. D. has his own room in the townhouse and he has two pets, a cat and a rabbit. [ 46 ] Mr. F. and Ms. D.(2). reside in a detached home belonging to Mr. F.’s parents in a suburban neighbourhood of Tofield. D. has his own room and he has pets there. This is the same residence D. has lived in since his birth on the occasions he has resided in Tofield. Extended Family [ 47 ] Ms.

D. has numerous relatives in the Prince George area including her parents, stepparents, grandparents and numerous cousins. Mr. B. has two siblings each of who have children. Ms. D. stated that various members of her extended family have regular contact with D. in a variety of family activities occasions. [ 48 ] Mr. F. has numerous relatives in the Tofield area including his parents, one sibling and numerous cousins. Ms. D.(2) and many members of her family also reside in the area. Mr. F. also has a sibling who resides in Lethbridge who he sees on major family occasions. Mr.

F. stated that D. regularly spends time with all members of his extended family at different social and family functions. [ 49 ] In the past D. was cared for regularly by Mr. F.’s mother and sister while Ms. D. and Mr. F. worked. At this time if Ms. D. works on Saturday her mother cares for D. [ 50 ] Based on the photographs and the oral evidence D. clearly enjoys his time with all his extended family whether he sees them daily, weekly, often or less frequently. Financial Statements [ 51 ] Mr. F. filed a Financial Statement on October 31, 2013 which he disclosed an annual income of $51,302.

He filed a further Financial Statement May 14, 2015 in which he disclosed an estimated income of $44,000. He also filed a Financial Statement on March 6, 2016 disclosing an estimated annual income of $44,000. [ 52 ] Ms. D. filed a Financial Statement on June 10, 2015 in which she disclosed an annual income of $26,216. She filed a further Financial Statement on March 16, 2016 in which she disclosed an annual income of $42,240 as an insurance agent. [ 53 ] In her evidence Ms.

D. acknowledged that when she filed her Financial Statement on June 10, 2015 she had started her employment as an insurance agent but explained that she utilized the lesser income figure because she had not yet received very many hours from her new employer. She denied that she was attempting to mislead the Court with regard to that information in an earlier hearing concerning who would be paying for the transportation costs involved in the exchange of D. from one parent to the other. [ 54 ] In his evidence Mr.

F. acknowledged that his income set out in his Financial Statement was not a true reflection of what he was capable of earning because he is working at his drilling job only five days per month when he could be working more. He is also structuring the company’s affairs to repay his debt for the drilling rig to his father in an accelerated fashion both of which has the effect of reducing his income. Parenting Concerns [ 55 ] Ms. D. did not raise any concerns about Mr. F.’s or Ms. D.’s care of D. [ 56 ] Mr. F. raised a number of concerns about Ms. D. to which she provided some responses to including:

a) Ms. D.’s crying at the exchanges of D. which Mr. F. said upsets D. Ms. D. responded that she sometimes gets upset because D. is already crying and she tries to calm him down by hugging and reassuring him. She noted that these events are less frequent than they were in the past and that Mr. F. also hugs D. at exchanges;

b) Mr. B. did not introduce himself to Mr. F. whereas Ms.D.(2) did introduce herself to Ms. D.;

c) On one occasion in 2014 Ms. D. did not attend the exchange of D. because she was hung over from her previous night’s birthday activities. Ms. D. denied that she was hung over and that her mother picked up D. so they could go out to buy Ms. D. a birthday gift from D.;

d) When D. is with Mr. F., Ms. D. only spends a few minutes visiting with D. on Facetime and then only sporadically in contrast to Mr. F. who visits with D. on Facetime more frequently and for longer periods when D. is with Ms. D. Ms. D. stated that she tries to call D. approximately every three days and did acknowledge that Mr. F.’s calls with D. last longer than her calls to him;

e) On two occasions at the exchange of D. in Jasper, Ms. D. had D. dressed in his pyjamas. Ms. D. stated that because of their early departure from Prince George to get to Jasper D. was more comfortable in his pyjamas but acknowledged that she hadn’t considered how he would look if he and Mr. F. wanted to go into some public place, like a restaurant, later in the day on the way back to Tofield;

f) On one occasion soon after the separation at an exchange of D. at the Prince George Airport, Ms. D. was very late in delivering D. and Mr. F. had to tell her to do better. The Proposals [ 57 ] Each of the Parties prepared a number of proposals for their parenting time with D. depending on which community he resides in. These proposals were both detailed and comprehensive and based on the anticipated school schedules in each community, the Parties and their partners work and vacation schedules, school vacations and transportation arrangements.

[ 58 ] Ms. D. also provided a proposal based on D. residing in Tofield and her moving to live close by. Mr. F. acknowledged that if such a circumstance were to occur he would agree to an equal parenting time regime for D. so long as his schooling continued in Tofield and he did not face excessive transportation time to and from school. SUBMISSIONS Ms. D. [ 59 ] Ms. D.’s submissions on what is in D.’s best interests can be summarized as:

a) Both parents and the extended family members love D. and he needs them all as he grows up;

b) D. has a big heart, he is funny and smart, strong willed, a leader and loves everyone;

c) She and Mr. B. have stable and flexible employment and can be available for D. on short notice whereas Mr. F., Ms. D.(2) and his mother all work at least 45 minutes away from where D. would be going to school in Tofield in the event of an emergency;

d) She has put forward the best plan for D.’s education in French Immersion School, his sporting endeavours and health;

e) Mr. F.’s present employment circumstances are sporadic and unreliable when compared to hers;

f) D.’s fulltime care by Mr. F. would be strained by Mr. F.’s work

schedule which could include overnight absences;

g) D. was born in Prince George and has spent a majority of his life in Prince George;

h) Prince George is a larger center and has more amenities close at hand when compared to Tofield;

i) Her proposals for D.’s care are reasonable when compared to Mr. F.’s given that he didn’t provide a proposal to move to Prince George if D. resides with her;

j) D. is her world. Mr. F. [ 60 ] Ms. F.’s counsel’s submissions on what is in D.’s best interests can be summarized as:

a) There was no evidence presented that Prince George offers more or better opportunities for D. than Tofield. In addition Tofield is close to a major center, Edmonton;

b) Based on the schooling days and hours in each community their proposal provides longer and better parenting opportunities for Ms. D. than any of her proposals provides to Mr. F.;

c) D.’s transportation should include exchanges in Jasper from April through September and with the receiving parent arranging for and conducting transport from October through March;

d) Mr. F. has provided better continuity in D.’s education by having him in pre-school for the last two years at the same school he will attend if he lives in Tofield;

e) French Immersion is a good programme but no better than the Leadership School Mr. F. has arranged and French education is offered in Tofield;

f) Ms. D.’s employment has changed frequently through D.’s life and her present job is not in her preferred career;

g) Ms. D. has not grasped how some of her decisions and behaviours surrounding the exchange of care have an adverse effect on D.;

h) Many of the

Section 37 considerations do not favour one parent over the other but when it comes to exercising parental responsibilities Mr. F. has demonstrated better abilities in his living environment and his family relationships are more stable and hence more beneficial to D.;

i) Ms. D.’s provided no evidence to support the submission that her spousal relationship is as stable and permanent as Mr. F.’s whereas he and Ms. D.(2) provided a plan for their future;

j) There have been no emergencies involving D. and he is in good health. However, in the event of an emergency in Tofield there are many relatives close at hand with the necessary training to deal with that situation;

k) Ms. D. has not been completely truthful with the Court in this and previous hearings concerning her income, employment and living arrangement plans which reflects on her abilities as a parent;

l) Ms. D.’s income should be found to be $45,760 and she should pay child support to Mr. F. for D. in the amount of $418.00 per month. DISCUSSION [ 61 ] But for the fact that they live far apart and that D. must now attend school in one community, Ms. D. and Mr. F. may well have continued to discuss and decide upon what is in D.’s best interests without the Court’s intervention.

[ 62 ] Any decisions about D. must be determined in his best interests only. In determining his best interests the needs and circumstances described in

Section 37 of the FLA are many of, but not exclusively all of, the considerations the Court must weigh. [ 63 ] Although each of Ms. D. and Mr. F., their respective partners and families may want the Court to balance who is a “better” parent that is not the Court’s task. [ 64 ] If the Court was to utilize a balancing of who is better there is little to distinguish between either of D.’s parents.

They both have the resources and capabilities to ensure that D. will have all the opportunities to continue to grow through an enriched childhood into a contributing citizen. [ 65 ] In relation to what is in D.’s best interests there is little consideration to be given to the several concerns raised by Mr. F. Several of them were dated, some were minor in the big picture of D.’s upbringing, and some were not at all reflective of Ms. D.’s parenting abilities. [ 66 ] That being said the following actions by both parties would be in D.’s best interests:

a) Maintaining a positive, upbeat and affectionate attitude toward D. at exchanges to lessen any anxieties he may have;

b) Maintaining a congenial and respectful attitude among all the adults to each other while transporting and exchanging D.;

c) Maintaining a regularized

schedule of contact by Facetime between D. and whichever parent he is not residing with at any given time. [ 67 ] Mr. F.’s counsel’s submitted that Ms. D.’s evidence surrounding the circumstances under which Mr. F. was convinced to move to Prince George in 2013 and her evidence to the Court about her income situation in the June 2015 Court hearing should be a factor considered by the Court in assessing Ms. D.’s conduct as a parent. [ 68 ] Ms.

D.’s evidence in both those areas left the Court with concerns but such conduct, while not to be encouraged by the Court, does not ”substantially affect” her ability to properly parent D. [ 69 ] D.’s schooling is important to both Ms. D. and Mr. F. They each have plans to assist in D.’s future success by placing him in what they believe to be the best educational option in their respective communities. Each presented detailed and informative written materials from the school they wish to send him to. Either option appears to offer advantages to D.

However, there was no expert evidence presented to assist in determining whether or not French Immersion or “Leader in You” schooling was substantially better than the alternative. [ 70 ] An examination of the Section 37(2) suggests the following considerations have application here.

a) The child’s health and emotional well-being [ 71 ] D.’s health is not an issue. His emotional well-being would be best met by being able to spend as much functionally usable time with each of his parents. It appears from the evidence of his pre-school teacher that D. adjusts well to his

schedule of spending long blocks of time with each of his parents. He has no experience with spending short periods of time with either parent.

b) The nature and strength of the relationships between the child and the significant persons in the child’s life [ 72 ] D. has a close and nurturing relationship with both his parents. He likely also has a close bond to his grandmothers, each of who have cared for him regularly in either the past or at present. [ 73 ] It also appears that he has a comfortable and close relationship with both Mr. B. and Ms. D(2). However, given that each of them has been living with D. for less than a year it would be premature to give considerable weight to those relationships in determining D.’s best interests given the sometimes less than permanent nature of modern cohabitation arrangements.

c) The history of the child’s care [ 74 ] D. has been cared for almost equally by both Ms. D. and Mr. F. throughout his life. Ms. D.’s assertion that D. has spent most of his life in Prince George is not accurate. For most of his young life D. has moved back and forth between his parent’s homes on a regular basis, apparently with minimal negative impact.

d) The child’s need for stability, given the child’s age and stage of development [ 75 ] D. is still very young although given his lifestyle up to now he is very adaptive and resilient given his travel schedule. That lifestyle now has to be changed to accommodate his educational schedule. His stability will be least affected by a regime where each of his parents have long blocks of time to parent him. That will be in his best interests. The question that needs to be answered is how that can be accomplished. [ 76 ] The proposals provided by Ms. D. and Mr.

F. provide assistance to the Court in developing a plan that will meet D.’s need for continued stability, given his age and maturity level. Those proposals offer a variety of different schedules for D.’s care dependent upon his educational schedules. [ 77 ] After analysing all the proposals and the respective plans for D.’s education, sporting activities and the living arrangements offered by Ms. D. and Mr. F., his best interests are best met by a

schedule that will allow for longer blocks of parenting time for each of the Parties. [ 78 ] That is best met by D. residing in Tofield and attending Kindergarten on that school district’s

schedule with some minor

modifications. [ 79 ] If D. were to reside in Prince George, his time with Mr. F., except for the school holidays, would be restricted to the relatively short periods of long weekends which would require an excessive amount of travel by D. to remain in contact with both of his parents. [ 80 ] With some minor modification to his Kindergarten

schedule in Tofield, D.’s time with Ms. D. can be much longer and more beneficial to him for at least the next year than any proposal based on him living in Prince George. [ 81 ] Mr. F. objects to D. missing any instructional days on the basis it would not be in his best interests. However, if D. misses the occasional day he will be able to spend longer blocks of time with Ms. D. which is also very important to his wellbeing. [ 82 ] When considering those two alternatives and adding into the picture Mr.

F.’s evidence that both his mother and his partner are educational professionals who can assist D. it is reasonable to conclude that a few absences from school can be overcome by the best efforts of D.’s parents and extended family to ensure that he remains current with his studies. [ 83 ] There was no evidence or submissions made to suggest that Ms. D. and Mr. F. should not be granted equal parental responsibilities as set out in

Section 41 of the FLA. [ 84 ] In general that arrangement is in D.’s best interests. However, there are some necessary exceptions to an equal sharing of parental responsibilities. They include the following subparagraphs of

Section 41:

a) Each of Ms. D. and Mr. F. will individually exercise day to day decisions affecting D. during the time he is residing with them;

b) Mr. F. will be solely responsible for where D. will primarily reside;

c) Ms. D. shall have the final say in deciding, to a limited extent, when it would be appropriate for D. to miss instructional days in order to spend more time with her. That extra responsibility will be limited to eight educational days per year. [ 85 ] With those exceptions Ms. D. and Mr. F. will equally share the parental responsibilities set out in

Section 41. [ 86 ] Ms. D. also introduced a proposal for D.’s care that would involve her moving to the Tofield area and in that circumstance she and Mr. F. should resume equal joint care of D. Mr. F. said that he would agree to such a joint care regime so long as it didn’t require a change to D.’s school or excessive travel to and from school. The Court must be open to that possibility and offer some direction to the Parties if that was to occur. DECISION [ 87 ] Ms. D. and Mr. F. are the Joint Guardians of D.M.F., born [omitted for publication]. [ 88 ] D. will primarily reside with Mr.

F. in Tofield, Alberta. [ 89 ] Ms. D. will have parenting time with D. while she resides in Prince George as follows:

a) blocks of days corresponding to D.'s non-instructional school days plus, as set out elsewhere in this order, some instructional days which may be utilized to provide extended parenting time in the month of September, October and November 2016 and January through June 2017;

b) one block of days in December 2016 of six days plus a portion of the Christmas school vacation commencing on December 30, 2016 and continuing until January 8, 2017;

c) commencing at the Christmas school vacation in 2017 and on odd-numbered years thereafter from the day after school ceases in December until a day at the midpoint of the Christmas school vacation;

d) commencing with the Christmas school vacation in 2018 and in even numbered years thereafter from a day at the midpoint of the Christmas school vacation until the day immediately before school recommences in January;

e) commencing with the 2016 – 2017 school year and in alternate years thereafter the entirety of the Spring Break school vacation from the day after school ceases until the day before school recommences;

f) commencing in 2017 and in every year thereafter summer school vacation commencing four days after school instruction ceases and continuing until Wednesday immediately following the BC Day statutory holiday;

g) at all the times as she and Mr. F. may agree. [ 90 ] In light of the uncertainty of D.'s schooling

schedule and requirements in this and subsequent years the Parties are at liberty to apply to the Court to vary the parenting time for each of them to meet D.'s best interests. [ 91 ] The exchange of D. between the Parties for their respective parenting time will be as follows:

a) in the month of April through October each year at a location to be agreed upon between the Parties in Jasper, Alberta, or failing such agreement at the VIA Rail train station. Each party shall be responsible for the transportation for D. and a responsible adult;

b) in the months from November of one year through March of the following year the parent who is to receive D. will be responsible

for arranging for and conducting the necessary transportation of D. and a responsible adult. [ 92 ] Each Party will have reasonable electronic contact with D. while he is in the parenting time care of the other, including in the case of telephone or Facetime at least three times per week. [ 93 ] Ms. D. and Mr. F. will equally share the parental responsibilities under

Section 41 of the FLA except that:

a) Each of Ms. D. and Mr. F. will individually exercise day to day decisions affecting D. during the time he is residing with them;

b) Mr. F. will be solely responsible for where D. will primarily reside;

c) Ms. D. shall have the final say in deciding, limited to eight instructional days per year, when it would be appropriate for D. to miss school in order to spend more time with her. [ 94 ] In the event Ms. D. relocates to the Tofield area she will share equal parenting time of D. with Mr. F. on such terms as they may agree and failing agreement upon application to the Court by either Party [ 95 ] Ms. D. is found to be a resident of British Columbia with an income of $42,240. [ 96 ] Ms. D. shall pay child support to Mr.

F. for D.’s benefit in the amount of $385.00 per month commencing on September 1, 2016 and payable on the first day of each month thereafter until further order of the Court. [ 97 ] Commencing in 2017 Ms. D. shall provide to Mr. F. by July 1 each year, copies of her Tax Returns and any Notices of Assessment and Reassessment issued to her by the Canada Revenue Agency to permit a recalculation of the child support obligations. [ 98 ] In the event Ms. D. relocates to the Tofield area Mr. F. shall provide to Ms.

D. by July 1 each year, copies of his Tax Returns and any Notices of Assessment and Reassessment issued to her by the Canada Revenue Agency to permit a recalculation of the child support obligations. [ 99 ] Pursuant to Section 223 (1) (

c) of the FLA any further applications in this matter shall be heard before this Judge until September 1, 2017. __________________________ M.J. Brecknell Regional Administrative Judge Northern Region Provincial Court of BC