C.L. v. J.H. Date:, 2015 BCPC 405

Citation: C.L. v. J.H. Date: 20150814 2015 BCPC 0405 File No: 13947 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.L. APPLICANT AND: J.H. RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Appearing on their own behalf: C.L.

Appearing on their own behalf: J.H. Place of Hearing: Port Coquitlam , B.C. Date of Hearing: August 14, 2015 Date of Decision: August 14, 2015 [ 1 ] THE COURT (ORALLY): The parties to this family law proceeding are C.L. (“Ms. L.”) as applicant, and J.H. (“Mr. H.”) as respondent. [ 2 ] The child, whose interests are the court's overarching preoccupation in this, as in all, family cases is seven-year-old J.L.H. (“Child J.”), born [deleted for posting]. [ 3 ] I have before me applications and cross-applications. Ms.

L., Child J.'s mother, applies to relocate with Child J. to Victoria leaving behind her home in Maple Ridge. Mr. H. opposes that application and he has his own application seeking an order compelling Ms. L. to desist from removing Child J. from the Lower Mainland. So the central question before me, on applications brought on a rather hasty basis, is what would serve the best interests of Child J., having regard to the conflicting views of the parents. [ 4 ] I will say that while they come at this problem from very different perspectives I have no doubt that both Ms. L. and Mr.

H. have an abiding love and affection for Child J. Neither do I have any doubt that each of the parties is fully capable of providing Child J. with high-quality, good parental care. Nothing I have seen, and nothing I have heard, has called into question the capacity of either Ms. L. or Mr. H. to be able to make proper provision for Child J.'s day-to-day needs while she is in the care of either of her parents. That is to say, when they are functioning as parents they are both, in my judgment on the material before me, equally capable of rendering high- quality parenting to this child. [ 5 ] But Ms. L. and Mr.

H. are not only functioning as parents, they are also functioning as litigants. They have entered the civil justice system through the portals of the Family Division of the Provincial Court, and as litigants they have taken on the personas of parties who are engaged in an adversarial process.

One of the regrettable but seemingly unavoidable side effects or consequences of turning to the court system for answers the parties cannot find themselves for their problems, is that the litigation process itself can have the effect of deepening divisions, inflaming conflict, and widening the already existing gaps between people who, at the end of the day, while in conflict with each other have and should have a continuing common interest in what will best serve the interests of their child. [ 6 ] Child J., like all other children in her situation, did not choose to have parents who could not get along with each other and live together, but she has to live with the consequences of that and she does live with the consequences of that.

The duty and responsibility of parents in the position of Ms. L. and Mr. H. is to devote themselves to ensuring that the problems they had with each other do not trickle down and erode and corrode the quality of life for their children any more than is absolutely unavoidable. [ 7 ] These two adults -- both capable, fair-minded parents -- present in their battle dress in the adversarial arena of the courtroom as warriors in a contest with each other, each trying to prevail over the other. In some ways their actions and their words have eclipsed their other qualities (I dare to say their better qualities).

The process itself has, as expected, widened the gap between them, deepened the conflict, inflamed the conflict, and spilled over and had adverse effects upon Child J. It is against that unfortunate background that this decision regarding where Child J. will reside in the near term must be made. [ 8 ] The evidence before me comes in essentially two forms. There are multiple affidavits on the file that have been submitted for filing on earlier occasions. I have read and considered all of those affidavits and I have read and considered the exhibits that are attached to them. That forms part of what is before me.

Then the parties themselves have given their oral testimony under oath. The parties have had their testimony tested by cross-examination conducted by the parties themselves, unrepresented litigants, and the parties have each called members of their families as witnesses. I have heard and digested and considered all of that testimony alongside what I see in the affidavit material in coming to the conclusions that I have reached. I have also listened to oral submissions from the parties and taken those into consideration. [ 9 ] I will say a little bit about the law that governs these kinds of applications.

Division 6 of the Family Law Act is entitled "Relocation" and it sets out the statutory framework within which applications like this are brought, considered and decided. I will not read out all of the sections, but I will read from the sections. "Relocation" has a special statutory definition. It 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 guardian or one or more persons having a significant role in the child's life.

Unquestionably there is a relocation in the sense of the statutory meaning proposed here. The relocation of Child J. from Maple Ridge to Victoria can reasonably be expected to have a significant impact upon Child J.'s relationship with her father, Mr. H., and with persons in her life from her extended family here in Maple Ridge, so this is a proposed development or step in the life of Child J. that calls to be considered against the background of Division 6 of the Family Law Act. [ 10 ]

Section 66 says: 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 the date of the relocation, and the name of the proposed relocation. [ 11 ] The court can exempt a party from that in circumstances where "notice cannot be given without incurring a risk of family violence" or "there is no ongoing relationship between the child and the other guardian, or the person having contact with the child."

These exemptions do not apply here; this is a case that is governed by a notice requirement. [ 12 ] As is plain from the evidence adduced in the course of the hearing today, the requirements of s. 66 were bypassed entirely by Ms. L. Ms. L. sprang this application upon Mr. H. without notice. She took steps in furtherance of her intended move of herself and Child J. to Victoria in the background, without disclosing those intentions to Mr. H. [ 13 ] Why did the legislature create a notice requirement? It is a requirement that is driven by fundamental notions of fairness.

The relocation of a guardian and child to another community is a seismic event in the lives of all concerned, the child most importantly. Guardians, by definition, are obliged to confer with each other about decisions of significance affecting their children. That is a simple incident of the status of guardian. These parties before me are guardians. They are joint guardians by agreement, by operation of law.

Guardians do not stay within the law if they purport to make decisions unilaterally, take steps unilaterally, go about transforming arrangements in place unilaterally without consultation and without either getting consensus or a court order to authorize their intended plan. This is an aspect of the matter before me about which I am absolutely compelled to comment. [ 14 ] Ms. L. could hardly have gone about the process that she has undertaken in a less ham-handed way.

As a guardian, as a person bound by s. 66, she was required not to operate by stealth but in an open and transparent way, making her aspirations known to Mr. H., recruiting his participation in the decision-making, endeavouring to find consensus, and only if that could not be achieved, then invoking the court's process, starting off with giving a 60-day notice. Exactly none of that happened here. That does not predispose Ms. L.'s application to certain failure, but it represents a self-inflicted wound to Ms.

L.'s aspirations that is present in the court's mind as it proceeds through the hearing process. [ 15 ] Paragraph 67: If notice is required under

section 66 … which in this case it was: …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. Exactly what I have been saying. It cannot happen if you put your house up for sale and lay the foundation for the move and the child is the one who announces it to the other guardian. That amounts to an absolute end-run around the requirements of fairness and of the law. [ 16 ] Section 69(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… And that is our situation; Ms. L. has vastly more parenting time with the child than does Mr. H.: (

a) the relocating guardian [Ms. L.] must satisfy the court that (

i) the proposed relocation is made in good faith, and (ii) the relocating guardian [Ms. L.] has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life, and (

b) on the court being satisfied of the factors referred to in paragraph (a), the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise. [ 17 ] So that is the inquiry: Is Ms. L.'s proposed relocation made in good faith and would it, as it is presented, afford a reasonable and workable arrangement to preserve the relationship between the child in this case, and her father, Mr. H., and the other important people in her world?

That is what the court is required to consider under Division 6 when relocation is proposed. [ 18 ] Everything I have had to say about Ms. L.'s actions in proceeding by stealth as opposed to openly and in an atmosphere of fairness, transparency and actual performance of a guardian-like role, call into question her good faith. I referred to her actions as bringing about a self-inflicted wound. She has executed a poorly thought out, strategic manoeuvre. Such manoeuvres have the effect of placing large obstacles in the pathways of the persons who choose to act so unfairly. That is exactly what Ms. L. has done.

She must strain mightily to persuade this court that her proposed relocation is pursued in good faith, simply because of the way in which she has gone about presenting the relocation plan. I said before that that is not fatal, but it presents a very significant problem. [ 19 ] Let me pause just to refresh the parties' memories about what it means to be joint guardians, and that is what you are. You may live in separate households, there may be an asymmetrical division of time as between the two households, but you are still equal in the eyes of the law as guardians.

You each have an equal share in decision-making regarding this child. You each are obliged by the terms of the agreement you entered into when you sought to give definition to your mutual rights and responsibilities, to consult with each other, to share decision-making, to be open and transparent, to cooperate. Why does the law require these things of joint guardians? In order that the two adults who happen to live in separate households might function effectively together.

While they are separate, they are together with respect to what the child needs and what the child's needs will require of them over the course of her lifetime until she is fully emancipated and on her own. [ 20 ] Child J. needs adults who can, despite their history, despite their baggage, despite the grievances that have existed between them in the past, nevertheless succeed in dealing with the requirements that arise day-to-day in making provision for a child who moves between two households. If one party sneaks up behind the other and springs something by surprise like this, no one should be surprised

if there is a loss of trust; no one should be surprised if there is a diminishment in the ability to function effectively as a team because you are still a team as regards the needs of Child J. [ 21 ] I consider it my obligation under the Family Law Act , as someone who is charged with the responsibility of making decisions about Child J. that are driven by her interests, to express my strongest disapproval of the way this application has been pursued by Ms. L. It cuts against every requirement of fairness and due process and natural justice reflected in Division 6.

It offends the ordinary person's sense of fairness. It is to be discouraged. And I say these things in the expectation that whatever unfolds in the coming months and years with this child will not reflect anything of that nature ever again. [ 22 ] These parties, Ms. L. and Mr. H., have a troubled history. Their relationship did not survive, and there are references in the evidence before me to instances of family violence in the past. That came up in Ms. L.'s testimony. Then of course there is the more recent incident involving a means of disciplining Child J. enacted by Mr.

H. that has caused some of that history to percolate back to the surface again. I am mindful of the history, the more distant history, and I am mindful of this recent incident; they are matters about which I should be informed and about which I have been informed in the course of this hearing. I expect that Mr. H., if he could hit rewind and do things differently, he would have done things differently with Child J. on the occasion in mid-March of this year when she presented him with an especially challenging need to discipline her. [ 23 ] But what I am also mindful of, as regards that incident, is that Ms.

L. first rushed the child to obtain medical attention; that is referred to in the affidavit material. I cannot fault Ms. L. for that. She hears that the child has been struck on the head by her father and she wants to satisfy herself that she is fine. She goes to the doctor; the doctor's report exhibited to one of the affidavits shows nothing by way of an injury, no marks, no anything. There is the psychological aspect, an unhappy and upsetting encounter between daughter and father. It is not so easy to identify and recognize to what extent that is persisting.

I do not suppose anyone can say with certainty. [ 24 ] What can be said with certainty is that the Ministry of Children and Family Development, the statutory body charged in this province with investigating circumstances giving rise to child protection needs, was also brought into the picture following the doctor's visit.

That statutory body -- which holds people in these situations to very high standards -- carried out its investigation, was satisfied that there were no subsisting child protection concerns and closed its file, and did so on March 19th. [ 25 ] That tells me, given that the Ministry has a responsibility to not just safeguard against physical but also psychological harm, that in the eyes of experts whose job it is to protect children against harms that might befall them, this incident was an incident of a relatively minor nature and that it has been resolved to the satisfaction of that statutory body and that everyone can move on past it. [ 26 ] Ms.

L. made references to a history of some family violence in her dealings with Mr. H. early in their relationship. That too is a matter that is part of the history, and that too is a matter that ought not to be trivialized. I certainly do not consider that either party should ask the court to afford too much or too little importance to it, but when one looks at the orders the courts in Victoria made not long after that incident, one can see -- and this all happened in Victoria -- both Judge Chaperon and Judge Higinbotham, undoubtedly aware of the history, made orders granting Mr.

H. liberal parenting time, or access as it was then known, to Child J. not long after the unhappy encounter between Mr. H. and Ms. L. that brought the parties before the criminal justice system. [ 27 ] So, just to refresh everyone's memories, looking back at Judge Chaperon's order in December of 2009, she ordered that Mr. H. would have weekly interim access to Child J. on alternate Thursdays from 11:00 a.m. to 6:00 p.m. Ms.

L. was required to ensure the transportation to Port Coquitlam, and on the weeks that he did not have those Thursday access opportunities, on weekends, Friday, Saturday and Sunday from 11:00 a.m. to 6:00 p.m., it being Ms. L.'s responsibility to take care of the transportation. [ 28 ] That was varied by Judge Higinbotham in February of 2010 to provide that Mr. H. would have access to Child J. from noon on Fridays to 5:30 on Sundays on alternating weekends. That was overnight access.

So from the very earliest days, courts have endorsed the idea that Child J. would spend unsupervised parenting time with her father, Mr. H., even in the wake of the historical family violence. From that I think it is a reasonable inference that the courts which made those orders back in 2009 and 2010 considered that, as important as that unhappy

chapter in the parties' lives was, it was not a

chapter that needed to lend any particular colour to the way in which the parties were going to deal with each other vis-à-vis sharing parenting responsibilities for this child and parenting time for this child. [ 29 ] Of course, Child J. has moved back and forth between Victoria and the Tri-Cities area more than once. There was a return by Ms. L. in 2012. Child J. was, by that time, two-and-a-half years old: she spent her first nine months in the Lower Mainland, was in Victoria, and at two-and-a-half she returns.

The parties gave definition to the terms of their dealings and to the whole question of the division of parenting time in an agreement that has been filed with the court, but their actual practices soon departed from the terms that they established in their agreement. [ 30 ] What they agreed was that Child J. would spend two hours a day with Mr. H. and one overnight every week. That was an agreement that was not actually performed for any amount of time. Very quickly after Ms.

L. returned with Child J. to the Lower Mainland, the parties settled into a pattern where Child J. spent every second weekend from Friday to Sunday, with overnights, with Mr. H. Indeed, that has been the actual arrangement until June this year around the time when Ms. L. put her home on the market and began taking formal steps to pursue her plan to move to Victoria. At about the same time -- which I observe is a couple of months at least after the Ministry closed its file on the question of Mr. H.'s means of disciplining Child J. -- Ms. L. unilaterally curtailed Mr.

H.'s parenting time with Child J. to remove the overnights. She gave, as her explanation, the incident for which the Ministry had closed its file two months earlier, and things she reports that Child J. said about what she wanted to do and where she wanted to be and who she wanted to be with. [ 31 ] And let me pause and comment on that subject because both parties -- both Ms. L. and Mr.

H. and their witnesses -- made reference from time to time to things that Child J. is said to have said about her preferences, about her wishes, about what she wants, about who she likes and who she doesn't like, and who she wants to spend time with and who she doesn't want to spend time with. I cautioned the parties as they led their evidence to say, firstly, that that evidence, to the extent that it sought to invoke Child J.'s words, was evidence that is generally not receivable as offending against the rule against hearsay. Secondly, I made the observation (which I

make again) that a young child's words, delivered by parties to a dispute like this who have their own interests, can be accorded very little weight. There is a reason why we have a rule against hearsay, and there is a reason why judges tell parties in these circumstances, over and over again, that entering into discussions with young children about matters in dispute between parents is a most unwise practice. I am, frankly, appalled at the amount of content in the affidavit material that purports to present to the court Child J.'s perspective on the very matters that are before the court.

Both parties have slipped into this practice to an extent, but I am bound to say that it is Ms. L. who most often tenders to the court what she says Child J. says and thinks and believes to the court in support of her position in a contentious matter involving her possible relocation to Victoria. [ 32 ] This child has no place in any discussions about a dispute between her parents about any disputed matter.

A moment's pause and hesitation and objective thought will lead any reasonable person to the conclusion that a child in that situation, drawn into a discussion of that kind, is going to feel a tension, an expectation, a need to align with one or the other of its parents. That is an invidious position for a child to be paced in. A six-year-old should not be drawn into a battle between her parents. She should not be commenting on one or the other parent's aspirations about a change in location; she should not be used as a foot soldier in two adults' battle.

That is a shocking recruitment of an innocent by two warring adults who both know better. [ 33 ] To the extent that Ms. L.'s application is supported by references to what Child J. wants or what Child J. says she wants, and so on, I cannot treat that evidence as being reliable because this child, like almost any child in that situation, cannot be expected to give an independent perspective to a partisan in a dispute when the two partisans are the two people she loves in the world most of all.

And so I would express my strongest disapproval to both parties to the extent that they have engaged Child J. in those kinds of discussions and sought to use her words as ammunition against each other. I urge them to cease doing anything like that going forward, because children who are recruited as foot soldiers in their parents' battles are ultimately the most tragic casualties of those battles.

It is one thing for the parties to fire shots back and forth at each other and inflict wounds, but to bring the child or children into the battle and seek to align them with one side or the other is an unconscionable practice. It should not have been happening here, and it has to stop. [ 34 ] On the material before me, the curtailment of overnight stays by Child J. with Mr. H. -- which coincides so closely with the bringing of the applications -- has not been justified. These parties have operated on a basis on which Child J. has spent overnights with her father on alternating weekends for years.

I do not consider it a coincidence that as Ms. L. seeks to prepare the way for her exit from the Tri-Cities area to live in Victoria, she reduces unilaterally the amount of time Child J. is spending with her father (which already is a relatively small amount of time). The parties had an opportunity in their affidavit material, and again in their oral testimony, to explain and justify their perspectives on that question, and I am absolutely unpersuaded there is any reasonable basis for that curtailment. It was unilateral, and (I am satisfied) tactical and strategic.

It was conduct that was the conduct of a warrior, not a parent, driven by the imperatives of the litigation and what Ms. L. wishes to accomplish in the litigation. It has nothing to do with Child J.'s best interests as broadly conceived. [ 35 ] One quick, easy way to dispose of this application would be to point to the non-compliance with the notice requirements and simply dismiss it outright, and that is certainly something that is open to me to do.

Moving in the shadows, operating by stealth, having the virtual fait accompli presented by the child to the father after all the work that has been done in the background, is precisely what s. 66 was intended to avoid. However, non-compliance with s. 66, while a serious matter, does not inevitably predispose the application to failure.

It certainly, as a self-inflicted wound, cripples the application to some considerable degree, but I do not believe I can call upon non-compliance with s. 66 to avoid the real inquiry, and that is to say, what does the proposed relocation represent in terms of the best interests of the child? [ 36 ] So I will move past s. 66 and into s. 69 and consider the evidence before me through the lens of s. 69(4) -- which I remind you says a person in Ms. L.'s position must satisfy the court that: (

i) the proposed relocation is made in good faith, and (ii) the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life. [ 37 ] Ms. L. presents a case for relocation in two ways, basically. She offers an economic argument in its favour and she offers an argument that invokes family associations.

It has a more human dimension to it, although of course economic arguments have a human dimension because if somebody is in a position to make better provision for a child's needs through relocation, that is something that indirectly benefits the child and is properly considered. [ 38 ] Ms. L. presented a perplexing economic position to the court. She contends that as a full-time medical transcriptionist she earns between $600 and $1,000 per month working here in the Tri-Cities area. I pressed her on that because I found that to be an astonishing submission.

I did not know how someone could possibly work full-time and generate an income of $600 to $1,000 a month and possibly survive. But that is what she re-affirmed in her testimony. It was not until it was raised in cross-examination that I learned that, by reason of an annuity flowing out of a settlement of some kind of personal injury matter resulting from a motorcycle accident, that Ms. L. also lives on a $1600 per month income from that annuity. I find it somewhat troubling that that did not figure in Ms. L.'s direct testimony. [ 39 ] At $600 to $1,000 a month full-time, Ms.

L. would have the court believe that she is working as a medical transcriptionist. I repeat that I pressed her on this. She is absolutely dead clear when she says that this is full-time employment generating $600 to $1,000 a month. Full-time means 40 hours a week, 160 hours a month. Ms. L. testifies she is working at somewhere in the neighbourhood of a third of minimum wage. I do not find that evidence believable.

I did better understand how she can live -- and as she says somewhere in her affidavit, pay a roughly $1200 per month mortgage payment -- once I learned, only in cross-examination, that she has an independent source of income from the annuity. Ms. L., it would have done you credit to be forthright about your income at the time you gave your direct evidence. I am grateful to know what I would never have learned from you but for Mr. H.'s cross-examination.

It is an important piece of the puzzle, particularly when you rest your case on an economic argument, that you chose to keep to yourself. [ 40 ] The argument, economically, goes that if she moves to Victoria. Ms. L. can obtain better-paid medical transcriptionist work,

possibly through a hospital setting. But this is only a prospect; it may come to pass, it may not. I have no evidence other than the oral testimony of Ms. L. herself to substantiate the foundation of that economic argument.

And if medical transcriptionists are working for somewhere between three and four dollars an hour in the Tri-Cities, I first have a hard time believing that, but I cannot imagine that if the pay is anywhere close to that, that it is dramatically different in what that work attracts in pay in a community as close as Victoria, or else all medical transcriptionists would be on the ferry going to Victoria in order to not have to work at Dickensian levels of compensation. [ 41 ] Another branch of the economic argument is that Ms.

L. can live in a suite in her parents' home and thereby pay below-market rent, effectively, in order to live and conserve funds. And while undoubtedly her parents, generously, are making space available for her, or are prepared to make it available for her, for a mature woman with a child and the responsibilities of a single parent to try to present an argument in which she is going to go back and live in her parents' house at diminished rent and hold that out as a forward-looking, strong economic argument favouring the relocation is, to say the least, a bit of a stretch.

Relocation applications that invoke economic arguments are generally brought by people who are earning tolerable incomes in one location and have a prospect of a promotion, an improved pay package and better circumstances in another and who can point to that, saying, as Ms. L. says, this is altogether better. For Ms. L. to say, "I can go and live in my parents' house and they aren't going to charge me much for it," is not really a step forward. It could be described as a step backward, economically.

It is not grabbing onto a need to establish and develop a career and not miss an opportunity to have that career afford opportunities of advancement; it is an acknowledgment or a concession that the career is in trouble and it is a move that is driven, in a way, by notions of down-sizing in terms of reducing the cost of living by taking advantage of a generous offer of parents to receive their adult daughter and grandchild back into their home and not expect much in way of payment from her to provide that. So this is, to say the least, an unconventional economic argument.

It rests on no certainty about employment; it depends on a charitable gesture from the parents. It does not present a strong case. There are possibilities, I accept, but they are speculative at best at the moment. [ 42 ] Ms. L.'s evidence raises the question: what is really driving this? What is the real reason for this proposed relocation? The history referred to in the affidavits and referred to in the testimony also shows that Ms. L. has been prepared in the past to relocate to other places, Edmonton for example, when she was involved in a relationship that she is not involved with any longer.

That was ultimately abandoned. This tells me that Ms. L., in turning her mind to moving with Child J. to other places, is as much influenced by considerations that have nothing to do with Child J. as she is by considerations that do have to do with Child J. If a boyfriend wants her to live in Edmonton, she will look at that. This idea that Victoria is really the only place that can properly meet all of Child J.'s needs is hard to reconcile against the relatively recent consideration Ms. L. gave to living in Edmonton.

It is not a particularly strong rationale offered in support of the move. [ 43 ] I return to the whole subject of fairness. Having chosen a school, having enrolled the child in a gymnastics program in Victoria, having moved all of her goods, having sold the house and not having her own place to live in Maple Ridge any longer, Ms. L., through her actions, has in a sense loaded the dice in her favour on the application. It is almost an ex post facto ratification she is asking for as opposed to court permission to make the move, and this is conspicuously something that she requires the court's permission to do.

Can she not appreciate, by talking about moving to Victoria with Child J., selling her house, keeping it secret from Dad, having it tumble out in a conversation with Dad, having all of her stuff moved to Victoria, having moved in, that she has set the stage for something that is difficult for the court or anyone else to reverse? This cuts directly against the good faith requirements of the decision-making process that would approve such action. This is not how it is supposed to work. One has to only consider the idea that Mr.

H. might be the one before the court saying, "I've found myself a very nice situation with a car dealership in Calgary, I've signed over the title to my new townhouse, I've actually got something in Calgary that's going to work very nicely, I've found a school placement for Child J. there, and I'm asking the court to tell me that it's okay if I move there. Ms. L. and I will work out something so that she can keep up her relations with Child J., but this is a great opportunity for me." Ms. L., in that situation, would be crying foul. Of course she would be, just as Mr. H. today is crying foul.

He says, "You didn't raise this with me beforehand, we didn't talk about this." He doesn’t know the

section number, but he is really saying, "You didn't do anything that s. 67 talks about. You pulled this out of a hat. You've practically done it, and now you're telling me I'm just going to have to live with it." That is not the way things are done. [ 44 ] Now I turn to a central consideration under s. 69(4)(ii): has the relocating guardian proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role?

Well, the starting point is what has been the status quo until recently? The status quo has been that Child J. has lived primarily with her mother, and she has spent alternating weekends with her father, with overnights, until the unjustified curtailment as of the end of May, early June of this year, and that has existed for a period of years. Mr. H.'s relationship with Child J. has been sustained on that basis for a period of years.

Undoubtedly he would like to have more time with Child J. than he has under that arrangement, but by his actions he has shown that he is prepared to live with that amount of parenting time. He has fit that into his

schedule and his testimony was clear that the things he does with Child J., for the most part with the odd exception, are the things he does during his alternating weekend parenting time. [ 45 ] So I turn my mind to what this relocation would look like on an interim basis, because -- let me say it now -- I am not prepared to make a final order today. At the most I will make an interim order with a view to re-examining the whole question at a point in the future to see what kind of final order can be made. Would a relocation that does not materially change the time that Mr.

H. has with Child J., or materially increase the burdens upon him in order to make use of his parenting time with Child J. -- would that destabilize or upset or impair the quality and the quantity of parenting time that he has with his child? [ 46 ] As it is proposed by Ms. L., it would. It is not enough for Ms. L. to say she is going to troop off to Victoria with Child J.; she also expects an accommodation from Mr.

H. where he would have to come to Victoria on half of his alternating weekend visits and put himself up in a hotel or possibly in his ex's parents' home in order to make use of his parenting time with the child. That, I say flatly, is perfectly unreasonable. [ 47 ] But if -- and this is where we come down to the tough decision-making -- if this relocation were to be brought about in a way that had no material effect, or very little material effect on the ongoing parenting time that Mr. H. has, would that represent a tolerable outcome?

I know that neither party made reference to the embeddedness of Child J. in a social community in the Tri-Cities area, but I think it a reasonable inference that this child has friends, she has people she goes to school with, and she has relationships that will wither if she relocates. She will have to establish herself with a new set of friends. She will have to get to know a new school. She will have to

get to know new neighbourhood children relative to the ones that she is used to dealing with where Ms. L. resides in Maple Ridge. These are things that routinely come up in relocation applications, and I do not know whether Ms.

L. thinks that disengaging from friends after a period of years of developing friendships, disengaging from classmates and school is a matter of importance to the social life of a child, but it is certainly known to be a matter of importance to the social life of children by the court, so I have to be mindful of that. [ 48 ] But the most important connections are the connections between a child like this and the other parent, and to a lesser extent to the extended family that clusters around the other parent. And on the evidence given by Mr. H. and given by Mr.

H.'s mother, I understand that while it is not the case that there are never any dealings between Mr. H. or his extended family and Child J. at times other than on his weekend parenting time, that is where most of it happens. If she spends as much time with Mr. H. and, by extension, the extended family, as she does now, while residing for the rest of the time in Victoria, is that a tolerable interim arrangement that can be tried with a view to re-visiting it for the purposes of making a final order a little less than a year down the road?

That is certainly worth considering, in my judgment. [ 49 ] At the end of the day, parenting time is ordered by courts so that each parent can make his or her contribution toward the growth and development of the child. Child J. takes things from her relationship with Ms. L. that only Ms. L. can give her; Child J. takes things from her relationship with Mr. H. that only Mr. H. can give her. Ms. L., no matter what she does with this child, cannot duplicate or replace what only her father can give, and vice versa .

That is why parenting time between both households has to be preserved, and if a way forward that preserves Mr. H.'s ability to continue to pour his contribution into the little vessel that is this child remains largely undisturbed, then I am prepared to say that the relocation as an experiment and nothing more is something that is perhaps worth looking at seriously. [ 50 ] If we have an experiment for a year's time or so, or perhaps a little less, what will this look like? Will the speculations about better employment actually come to pass?

Well, that will be something that the court could consider in a future hearing. Will the economic argument that Ms. L. makes look a little different? Will she be putting something before the court that looks a little better than this opportunity that involves going and living in her parents' house and not having to pay much rent? Will she actually get herself something substantial happening, career-wise?

Will she start living in a place that she pays for herself which has facilities that can accommodate both herself and the child and show some kind of robust argument that there really is something happening in Victoria and that she is not simply taking shelter from the normal economic forces by going home to her Mom and Dad? Well, that will be something to talk about in a year's time or so. Either Ms. L. will have delivered on that, or not.

If that proves to be an empty promise, then the court is going to take that into consideration in determining whether or not the experiment should end. [ 51 ] I do not doubt, by the way, that there are benefits -- psychological and familial -- that attach to this child having more time with her grandparents in Victoria. I am sure her grandparents are very kind and loving people who will want to make the best contribution they can to this little child's development. But I think that is an assumption that I can properly make about the extended family on Mr.

H.'s side as well; he just does not have the same amount of time to involve that extended family with Child J., but I am sure that the extended families on both sides are very loving people who want the best for this little girl.

But to the extent that the grandparents have fallen into the habit of the parties -- and I heard some testimony about that -- of talking to Child J. about where she wants to live and who she wants to live with, they too have to curtail their inappropriate communications with a child who ought not to be getting a sense that she has to align herself with one side or the other. [ 52 ] I am prepared to make an order on an interim basis that amounts, as I say, to being nothing more than an experiment. It will be interim in nature. It will preserve virtually all of the time that Mr.

H. has with this child because that is important parenting time, and it will minimize the inconvenience to him brought about by a change about which he was not consulted and which was developed in the shadows without his knowledge. [ 53 ] Altogether too much has already been said and discussed with this child by the adults. The court needs -- for the purposes of its long-term decision with respect to this, whether this is a good idea or not -- the kind of information about the child's wishes that comes from what we call a Views of the Child Report.

There is a great, elaborate mechanism to capture what children want, and parents running around asking them and then purporting to tell the court what they want, get in the way. And these professionals do a very good job of assessing what the views of the children are and they have no alignment with one party or the other, and they will be able to do as well as anybody can in finding out what Child J.'s real wishes are. And mark my words, if anybody is coaching Child J.to say the right things in those interviews, that will undoubtedly be noticed by these people who are sophisticated and see it all the time.

It will figure prominently in the report. So one of the go-forward arrangements that I will be specifying in the order is a Views of the Child Report. [ 54 ] So the idea here is that this matter will come back for a one-day hearing to take stock of what happens between now and then so that this experiment, which is nothing more than that, can be evaluated and a determination can be made as to whether or not the continued presence of the child in Victoria can be justified. [ 55 ] This is an interim order. The applicant, Ms.

L., on an interim basis only, has leave of the court to relocate the child, Child J., born [deleted for posting], to Victoria. This order is made without prejudice to the entitlement of the respondent, Mr. H., to apply to vary its terms or set it aside altogether on proper notice to Ms. L. [ 56 ] During the experimental period that will span between today's hearing and the next hearing in this matter, Mr. H. shall have parenting time with Child J. on alternating weekends. When does your parenting time start on Fridays, Mr. H.? [ 57 ] [MR.

H.]: Three o'clock. [ 58 ] THE COURT: From three o'clock p.m. on Fridays, and when does it end on Sunday? [ 59 ] [MR. H.]: Three o'clock. [ 60 ] THE COURT: And three o'clock p.m. on Sundays. [ 61 ] Transitions shall occur at the Tsawwassen ferry terminal. Mr. H. shall be responsible for attending at Tsawwassen ferry

terminal to pick Child J. up there on Fridays and drop her off there on Sundays. This is exactly what you have at the moment except you will have to go to Tsawwassen to do it. [ 62 ] Ms. L. is responsible, at her expense, for transporting Child J. to the Tsawwassen ferry terminal for drop-offs on Fridays and pick-ups on Sundays. There is an asymmetrical allocation of the burden of effecting transitions reflected in this order. Mr. H.'s burdens have been increased because he has to make his way out to Tsawwassen Fridays and Sundays.

That is a real addition to his burden, but it is not as great a burden as being responsible for getting Child J. to the ferry and on the ferry and travelling on the ferry there and back. [ 63 ] But Ms. L., you are the one who is introducing this seismic change and, as the

section says, a reasonable and workable arrangement to preserve the relationship with Mr. H. has to be put in place. It is not unreasonable and is workable to cast the larger burden on you. You are the instigator of this change, it is benefitting you asymmetrically vis-à-vis Mr. H., and you need to carry the larger share of the burden. [ 64 ] While Child J. is in Victoria, she shall have reasonable telephone and Skype contact with Mr. H. at times to be arranged between the parties.

I expect that the two of you can agree with each other on what is a reasonable number of telephone or Skype encounters to preserve the relationship during those long gaps when the child is not only not in Mr. H.'s care but is also not even in the same community. Those Skype and telephone contacts shall be supplemented by a reasonable number of Skype and telephone contacts with Mr. H.'s extended family, again, at times to be arranged between the parties. This is a way of preserving the connection between Child J. and not only Mr. H, but also Mr. H.'s parents, the cousins and aunts and uncles.

They can work it out, but there needs to be a mechanism in place that ensures that those relationships can be sustained. [ 65 ] There shall be a

Section 211 Views of the Child Report prepared by the office of the Family Justice Counsellors, with a request that the report be filed with the court and copies sent to the parties at their addresses, for delivery no later than July 4th, 2016. [ 66 ] The return date then for a one-day hearing to either declare this experiment a failure or a success, and to adjust it if necessary and adapt it to what is learned about what has happened in the interval between now and then, is July 13th. (REASONS FOR JUDGMENT CONCLUDED)