M.B. v. J.H. Date:, 2017 BCPC 129

Citation: M.B. v. J.H. Date: 20170217 2017 BCPC 129 File No: 13550 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: M.B. APPLICANT AND: J.H. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E.M. RITCHIE Counsel for the Applicant: D. Boulding

Counsel for the Respondent: D. Vanderende Place of Hearing: Chilliwack , B.C. Date of Hearing: August 6, 2016 Date of Judgment: February 17, 2017 [ 1 ] This matter concerns a young girl named, O.H. [ 2 ] The evidence shows that the parties were in a relationship from March of 2012 until the summer of 2015. Despite the relatively young age of J.H. and M.B., they are good parents to O.H. They both clearly want to do what is best for O.H. but they do not always agree on how that should be accomplished. They both acknowledge that the other party is a good parent.

There have been some difficulties between M.B. and J.H. over child support. That matter is not before me. [ 3 ] M.B. has expressed her intention to move to Williams Lake with O.H. J.H. opposes the suggested move and seeks an order that M.B. not be allowed to remove O.H. from a certain geographical area and an order prohibiting relocation of the child. [ 4 ] There are no written agreements between the parties or court orders dealing with parental responsibilities. Therefore Division 6 of the Family Law Act (FLA) does not apply. Both counsel submitted that s. 46 of the FLA governs this application. That

section reads 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. [ 5 ] The first two circumstances are met in this matter. I note that the requirement under s. 46 (1) (

b) that an application is made for an order dealing with parenting arrangements does not refer to who made the application. In this case, it is M.B. who made that application and it is J.H. who seeks the restriction on the removal and relocation of the child. [ 6 ] With respect to 46 (1) (

c) M.B. plans to change O.H.’s residence and she concedes that the change will have a significant impact on O.H.’s relationship with J.H. [ 7 ] Under s. 46 (2) in making my decision, I must consider the best interests of the child as set out in s. 37 and the reasons for the change in location of the child’s residence. I must not consider whether the guardian who is planning to move would do so without the child. Best Interests of Child [ 8 ] In determining what is in the best interests of O.H. I will separately consider the factors set out in s. 39 (2) (

a) to (

j) that apply to her and then consider it all as a whole. I have paraphrased the wording of some of the factors. (

a) The child’s health and emotional well-being: [ 9 ] O.H.’s primary residence has been with M.B. On the evidence, O.H. is thriving, both physically and emotionally. Although she spends more time with M.B. than with J.H., O.H. is clearly loved and nurtured by both her parents and by both sets of grandparents. I have no concerns about O.H.’s physical health whether or not I allow a change of her residence to William’s Lake. [ 10 ] A child’s emotional well-being can be heavily influenced by the situation facing the adults in her life.

J.H. has a steady job and has prospects for promotions in his work as a security guard. His income, even if he gets promoted, is not as high as it was when he worked in Alberta but his present employment is steady and provides stability. [ 11 ] M.B. was not employed at the date of hearing and was essentially “camping out” with O.H. at a friend’s apartment. In lieu of rent, M.B. looks after her friend’s child and dog and provides housekeeping service. M.B. does not know how long her friend will keep the apartment and M.B. cannot afford to rent an apartment on her own.

This is not ideal and the stress no doubt has a negative effect on O.H. M.B. wants to move to Williams Lake where she initially plans to live at her parent’s home. M.B. has good prospects of being employed at a day care operated by her cousin. The hiring requirements for working in a day care are considerably less in terms of

education and training than they are in the Fraser Valley. [ 12 ] If M.B. moves to William’s Lake, she will be happier and under less financial stress than she experiences living in Chilliwack. M.B. says that she only qualifies for minimum wage jobs in Chilliwack. Therefore, in dealing with the time O.H. spends with her mother, O.H.’s emotional well-being should improve if the move to William’s Lake is allowed. [ 13 ] The detrimental effect of potentially having less frequent parenting time with J.H. also must be considered when considering O.H.’s emotional well-being.

I note that J.H.’s time with O.H., both in terms of quantum and frequency, has fluctuated since O.H.’s birth, due in part to his prior employment in Alberta. I am satisfied that a change in the current parenting

schedule would not be unduly detrimental to O.H.’s emotional well-being. (

c) the nature and strength of the relationships between the child and significant persons in the child’s life: [ 14 ] O.H. has a loving and strong relationship with both of her parents and with both sets of grandparents. These relationships should be maintained. O.H. is fortunate that she has parents who each acknowledge the other’s attributes of good parenting. [ 15 ] J.H. expressed concern that O.H. will feel that he abandoned her if M.B. is allowed to move with O.H. While I have no doubt that this concern is real for J.H., I do not think there is any significant chance of it coming to fruition.

I accept that both M.B. and her parents will continue to encourage the strong bonds that O.H. has with her father and his extended family. This support includes M.B.’s parents offering a place to stay for either J.H. or his parents when they travel to William’s Lake if M.B. and O.H. are living in that community. (

d) the history of the child’s care: M.B. has provided the majority of care for O.H. While the parties were together, J.H.’s employment in Alberta meant that he was away for weeks at a time. When he returned to British Columbia, J.H. would participate in O.H.’s care. After the separation of the parties in August 2015, J.H. continued his Alberta employment until early June 2016 when he quit. J.H. cared for O.H. on occasion, including overnight, when he was in British Columbia.

From June 2016 to the hearing of this application, J.H.’s time with O.H. increased to the point where the usual routine is for O.H. to spend two days a week with him. On the evidence I find that this increase in time was initiated primarily by M.B. (

e) the child’s need for stability, given the child’s age and stage of development: [ 16 ] O.H. will be four years old later this summer. She has already lived in a variety of different residences in different communities in the Lower Mainland and Fraser Valley regions of British Columbia. The greatest stability in O.H.’s life is her mother, M.B. In the last few months her regular interaction with J.H. has also provided stability.

As O.H. grows, it becomes more important that she not only have stability in terms of her parents’ involvement in her life, but also that she has stability in terms of her schooling and friends. [ 17 ] Given the uncertainty over M.B.’s accommodation in Chilliwack and her poor employment prospects in Chilliwack, it is clear that M.B. would be able to provide a more stable environment for O.H. in Williams Lake. [ 18 ] It is also important for O.H.’s stability that she has regular, meaningful interaction with her father. (

f) the ability of each parent to exercise his or her responsibilities: [ 19 ] Both J.H. and M.B. have demonstrated their ability to exercise their parenting responsibilities. There have been some problems in communication between them but I am confident that they will continue to improve their communication skills. There is no doubt that each parent is determined to give O.H. the best upbringing that can be provided by being good role models for her. (

i) the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child: [ 20 ] Allowing M.B. to move to William’s Lake with O.H. would definitely require cooperation between M.B. and J.H. The distance between Chilliwack and William’s Lake means that either J.H. or O.H., or both of them, would have to travel several hours in order for them to be together during J.H.’s parenting time. [ 21 ] M.B. and her parents are willing to share in transporting O.H. to and from J.H.’s residence. M.B. is willing to change the parenting

schedule so that J.H. has O.H. with him for longer periods and so that there is regular contact over social media. [ 22 ] I am satisfied that M.B. and J.H. will be able to cooperate on issues concerning O.H. in a manner that is in O.H.’s best interest. Both parents have strong family values and both have the support of their parents. Reasons for Change of Residence [ 23 ] M.B.’s current living arrangements are not ideal. She and O.H. share a two bedroom apartment with a female friend of M.B.’s.

M.B. was not working at the time of the hearing and contributed her “rent” through housekeeping and pet care for her friend. M.B. cannot afford to rent her own place in the Chilliwack area. I accept that M.B. does not have the schooling or work experience to obtain employment in Chilliwack other than a job that pays minimum wage. [ 24 ] M.B. has family connections in William’s Lake.

If she and O.H. move to William’s Lake, she will be able to provide more suitable housing for O.H., initially at her parent’s residence and she has better employment prospects through her cousin’s daycare. [ 25 ] I find that M.B.’s reasons for wanting to change her residence to William’s Lake are genuine and are made for the right reasons. She is not wanting to move for any improper purpose including wanting to undermine J.H.’s parenting rights. Conclusion

[ 26 ] After considering the factors set out in s. 46 of the Family Law Act including the best interests of O.H. and the reasons for the proposed move, I find it is appropriate that M.B. be allowed to relocate with O.H. to William’s Lake. The individual factors in the “best interests” test set out above and the overall best interests of O.H. favour the move sought by M.B. [ 27 ] The move will necessitate further agreement or court order concerning parenting arrangements. The cost of travel to William’s Lake may also factor into the issue of child support.

I express no opinion and make no order on parenting arrangements or child support as those issues are not before me. [ 28 ] The application of J.H. to prohibit the relocation on O.H. and his application to prevent M.B. from removing O.H. from her current geographical area of residence is denied. E.M. RITCHIE Provincial Court Judge