C.P. v. S.P. Date:, 2015 BCPC 41

Citation: C.P. v. S.P. Date: 20150303 2015 BCPC 0041 File No: 15430 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.P. APPLICANT AND: S.P. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L.S. MARCHAND Appearing in person: C.P.

Counsel for the Respondent: Ms. Gillian Oliver Place of Hearing: Kamloops , B.C. Dates of Hearing: December 15 - 18, 2014 Date of Judgment: March 3, 2015 INTRODUCTION [ 1 ] S.P. and C.P. met in Fort St. John in 2002 when C.P. was a 21 year old [omitted for posting] and S.P. was 19 and working at a local [omitted for posting]. The P.s were married in March 2003.

The couple have two children, E.P., who was born on [omitted for posting], and H.P., who was born on [omitted for posting]. [ 2 ] As a result of transfers with the [omitted for posting] and to be closer to family, the P.s relocated to Barriere in 2004 and then to Kamloops in 2008. The P.s separated in February 2010. [ 3 ] S.P. stayed home with the children during the marriage but now is employed as a [omitted for posting] with the [omitted for posting]. C.P. has just taken a medical retirement from the [omitted for posting]. [ 4 ] The P.s entered into a Separation Agreement in August 2010.

The Separation Agreement provides that the parties share joint custody and guardianship of the children, grants primary residence of the children to S.P. and provides C.P. with reasonable and liberal access to the children. [ 5 ] S.P. has been the primary caregiver of the children since they were born. C.P. has been actively involved with the children though his time with the children has been somewhat limited since the separation. [ 6 ] In July 2014, S.P. accepted a transfer from the [omitted for posting] in Merritt to the [omitted for posting] in Central Saanich.

At the time, she thought C.P. approved of her accepting a transfer and relocating with the children. In fact, C.P. is opposed to S.P. relocating with the children. [ 7 ] The only issue before me is whether to allow the children to relocate with their mother to Central Saanich. ANALYSIS Legislatve Framework [ 8 ] In the context of this case, s. 69 of the Family Law Act , SBC 2011, c. 25 (the “ FLA ”) governs S.P.’s application to relocate the children to Central Saanich. As S.P. has a clear majority of the parenting time with the children, the relevant parts of s. 69 provide as follows: 69

(1) In this section, "relocating guardian" means a guardian who plans to relocate a child.

(2) On application by a guardian, a court may make an order permitting or prohibiting the relocation of a child by the relocating guardian.

(3) Despite section 37 (1) [best interests of child], the court, in making an order under this section, must consider, in addition to the factors set out in section 37 (2), the factors set out in subsection (4) (

a) of this section.

(4) If an application is made under this

section and the relocating guardian and another guardian do not have substantially equal parenting time with the child, (

a) the relocating guardian must satisfy the court that (

i) the proposed relocation is made in good faith, and (ii) the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and 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. …

(6) For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following: (

a) the reasons for the proposed relocation; (

b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;

(

c) whether notice was given under

section 66 [notice of relocation]; (

d) any restrictions on relocation contained in a written agreement or an order.

(7) In determining whether to make an order under this section, the court must not consider whether a guardian would still relocate if thechild's relocation were not permitted. [9] As indicated in s. 69(3), s. 37(2) sets out a number of factors that must be taken into account in determining the best interests ofa child. That

section provides as follows:

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

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 thechild 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 carefor 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, includingwhether 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. [10] Section 69(4) requires that I first determine whether S.P.’s proposed relocation is made in good faith. I must then considerwhether S.P. has proposed “reasonable and workable arrangements” to preserve other important relationships in the children’s lives,including, of course, with C.P. If the answer to both of these questions is “yes” then the proposed relocation is presumptively in thechildren’s best interests unless C.P. can establish otherwise.

If the answer to either or both of these questions is “no” then the authoritiesmake clear that I must still determine whether the proposed relocation is nevertheless in the children’s best interests. (See C.M.B. vB.D.G., 2014 BCSC 780 at paras. 62-78.) Good Faith [11] To determine whether a relocating guardian is acting in good faith, s. 69(6) sets out a non-exhaustive list of factors that thecourt must consider. Regarding factors (

a) and (b), I will focus on S.P.’s subjective belief and whether that belief is objectivelyreasonable. (See L.J.R. v. S.W.R., 2013 BCSC 1344 at para. 71 and A.V. v. M.D., 2014 BCPC 252 , 2014 BCPC 0252 at paras.9 and 10.) [12] One or more of the 69(6) factors may be relevant to the question of what is in the best interests of the children but, at this stage,I am only determining whether S.P. is acting in good faith such that she can take advantage of the presumption in s. 69(4)(

b) that theproposed relocation is in the best interests of the children. At a subsequent stage, I will consider the best interests of the children morebroadly. Factor (a): the reasons for the proposed relocation [13] S.P. advances a number of reasons for pursuing a relocation to Central Saanich. [14] S.P. loves her work as a [omitted for posting] and I have no doubt that she is very good at what she does.

She has completedsubstantial training and is gaining seniority which enables her to secure better postings in busier locations. [15] Throughout her time with [omitted for posting], S.P. has lived in Kamloops and has worked in neighbouring communities. [16] S.P. began her [omitted for posting] career in Logan Lake. She worked at that station from May 2010 to August 2011. LoganLake offers [omitted for posting] “on-call” shifts only. While on shift in Logan Lake, S.P. had to be in the community on a pager to beavailable to respond to any calls.

She was paid $2.00 per hour while on-call and her regular wage of $21.79 per hour for a minimum offour hours if she was called into action. She worked either a 10 hour day shift or a 14 hour night shift. S.P.’s [omitted for posting]earnings were insufficient to support the children and herself so she maintained a second job in Kamloops driving a medical van.

[17] S.P. worked in Chase from August 2011 to August 2013. In addition to on-call shifts, S.P. was also eligible to work “standby”and “spareboard” shifts. During a standby shift, S.P. was required to be at the station. She was paid $11.49 per hour while on standbyat the station and her regular wage for a minimum of three hours if she was called into action.

If the Unit Chief was away then S.P. tookturns with other part-time [omitted for posting] covering for the Unit Chief at S.P.’s regular wage for the full shift. [18] When S.P.’s allotment of shifts in Chase was cut back, S.P. took a transfer to Merritt which also offered S.P. on-call, standbyand spareboard shifts. S.P. worked in Merritt from August 2013 to July 2014.

While in Merritt, S.P. generally worked four shifts in arow which required her to be away from her home in Kamloops for two full days. [19] S.P. worked in Peachland in August 2014 because the children were away camping and she could take additional standbyshifts. [20] S.P. has been working in Central Saanich since September 2014 though she has been working a limited number of shifts.

S.P.has not obtained a permanent residence in Central Saanich and has not been able to work a greater number of shifts because of theseproceedings. [21] S.P. has tried to obtain work as a [omitted for posting] in Kamloops but positions in Kamloops do not come up very often andS.P. does not have the seniority to obtain any positions that do become available. [22] In the spring of 2014, S.P. applied for a lateral transfer to larger stations in the Vancouver, Victoria, Kelowna and PrinceGeorge areas all of which have higher call volumes, opportunities to work more regular hours and opportunities to pick up a greaternumber of spareboard shifts.

By accepting the position in Central Saanich, S.P. felt she could simultaneously earn a greater incomewhile also being home with her children more after school and on weekends. [23] Along with the higher earnings and better time with her children, S.P. accepted the transfer to Central Saanich to gain greaterindependence. Since fairly soon after the separation, S.P. has lived in a basement suite at her parents’ home in Kamloops. Thisarrangement has worked well from both a financial and child care perspective. S.P.’s parents and sister live upstairs and help with childcare.

The children are able to sleep in their own beds when S.P. is away for work rather than being shuffled between residences. Nevertheless, at 31 years of age, S.P. is understandably looking for greater independence from her parents. [24] In considering S.P.’s testimony about her reasons for pursuing a transfer to Central Saanich, I have to temper what she has saidabout the benefits of a transfer with her testimony in cross-examination that she has been able to maintain a good work-life balance inKamloops.

This testimony was not elicited in the context of C.P. challenging the sincerity of S.P.’s plans to relocate but rather waselicited in response to questions from C.P. about some of the difficulties he experienced as a an [omitted for posting] with the [omittedfor posting]. [25] I also have to temper what S.P. has said about her expectation of earning greater income in Central Saanich with the fact that shewill have substantially higher living expenses as a result of her plan to hire a nanny and to share in the costs of C.P. exercising parentingtime with the children.

On the evidence, I am not convinced S.P. will be better off from a financial perspective if she relocates to CentralSaanich with the children. [26] Despite having some reservations about how much S.P. has to gain from both a quality of life and a financial perspective, thereis no hint of any improper purpose behind S.P.’s proposed relocation with her children to Central Saanich. C.P. has not suggestedotherwise. I find that S.P.’s reasons for pursuing her relocation application are reasonable.

Factor (b): whether the proposed relocation is likely to enhance the general quality of life of the children and, if applicable, of therelocating guardian, including increasing emotional well-being or financial or educational opportunities [27] S.P. believes that the proposed relocation to Central Saanich will benefit the children’s quality of life as she has always been theprimary caregiver and she will be home every day for them rather than having to work multiple shifts in a row. S.P. will be better offemotionally and financially which she believes will, in turn, be good for the children.

In somewhat similar circumstances, in T.C. v. S.C.,2013 BCPC 217 , 2013 BCPC 0217, Judge Dhillon concluded at paragraph 83 that “(a)s a general proposition, independence,pursuit of life goals, and self-actualization are generally positive factors in a young adult’s life and should translate well for the child’sgeneral quality of life.” I agree with Judge Dhillon’s comments. [28] In making her application, S.P. acknowledges that a relocation to Central Saanich will require the children to change schools,establish new friendships and adjust to being away from their father and other family.

S.P. points out that E.P. and H.P. have been ableto adapt to big changes in the past, including the separation of their parents, a number of moves, new schools and new sitters. That said,the children have never had to adapt to moving away from their father and their mother’s family. [29] I will weigh the advantages of the relocation against the disadvantages later in my Reasons for Judgment when I address thebest interests of the children.

At this stage of the analysis I need only indicate my finding that S.P.’s subjective belief that a relocation toCentral Saanich will be good for both the children and herself is sincere and objectively reasonable. Factor (c) - whether notice was given under

section 66 [30]

Section 66 of the FLA provides that a guardian who plans to relocate with a child must give 60 days’ written notice of the dateand location to all other guardians and persons having contact with the child.

Section 68 of the FLA permits the proposed relocation tooccur unless another guardian files an application to prohibit the relocation within 30 days of receiving the written notice. [31] In this case, S.P. did not provide written notice of her proposed relocation to C.P. as required in s. 66. There was some disputein the evidence about the nature of discussions that S.P. had with C.P. about her intention of pursuing a relocation but I accept S.P.’sevidence that she raised the topic with C.P. with quite a bit of clarity, including possible locations more than 60 days in advance of herapplying for and accepting the posting in Central Saanich.

[ 32 ] Though C.P. did not explicitly agree that S.P. could relocate with the children, I find that he gave S.P. every reason to believe he was supportive of a relocation to any of the possible locations identified by S.P., including the Victoria area. C.P. did not say he was opposed to any of these locations and simply indicated that he and S.P. would have to discuss issues such as his parenting time with the children once S.P. had made more definite plans.

C.P. wanted to be “kept in the loop”. [ 33 ] A failure to follow the relocation protocol set out in the FLA would normally support a finding of bad faith on the part of a relocating guardian but that is not so in the circumstances of this case. [ 34 ] First of all, the hiring practices of the [omitted for posting] are at odds with the written notice provisions set out in s. 66 of the FLA . Once a [omitted for posting] applies for a transfer, the [omitted for posting] fills the position based strictly on seniority.

A call is made to the most senior [omitted for posting] who has applied for the position and that person must either accept or decline the position. If the first person called does not accept the position, the [omitted for posting] moves immediately to call the next most senior person who has applied for the position.

The first person is not given any time to decide whether to accept the position, never mind 60 days to give notice under s. 66 , before deciding whether to accept the position. [ 35 ] Further, unbeknownst to S.P., as she was moving forward with her plans to relocate, C.P. was on vacation in Bermuda reflecting on S.P.’s desire to relocate and his role with his children.

With unfortunate irony, at the very moment S.P. was accepting the transfer to Central Saanich, C.P. was reaching the conclusion that he was opposed to any relocation of the children and intended to take a more active role in their lives. [ 36 ] Finally, unlike the mother in L.J.R. v. S.W.R. , 2013 BCSC 1344 who was found not to be acting in good faith, S.P. has not simply moved with the children. In fact, S.P. has been in a kind of cruel limbo since accepting her transfer. She is working the minimum number of shifts in Central Saanich that she must to maintain her seniority while continuing to live in Kamloops.

By doing so, she is showing C.P. and the court process every respect. [ 37 ] So, while S.P. did not follow the notice protocol set out in s. 66 , I have no hesitation in finding that she followed the intention of the legislation by giving C.P. plenty of notice of her plan to pursue a transfer with the [omitted for posting] and to relocate with the children. Factor (d) - any restrictions on relocation contained in a written agreement or an order. [ 38 ] The Separation Agreement is silent on the topic of relocation and there is also no court order dealing with the topic.

Conclusion on Good Faith [ 39 ] C.P. did not raise any other factors which might be indicative of bad faith on the part of S.P. and, in fact, C.P. did not argue that S.P. was acting in bad faith. Based on all of the evidence, with particular attention to the factors listed in s. 69(6), I find that S.P.’s proposed relocation is made in good faith.

Reasonable and Workable Arrangements [ 40 ] Section 69(4)(a)(ii) requires that S.P. satisfy the court that she “has proposed reasonable and workable arrangements to preserve the relationship between the child(ren) and the child(ren)’s other guardian, persons who are entitled to contact with the child, and other persons who have a significant role in the child(ren)'s (lives)”. In T.C. ( supra ) at paragraph 86, Judge Dhillon characterized the burden on S.P. as follows: This

section requires the mother to show how the father’s relationship with the child can be preserved, not augmented or enhanced. It does not require anything other than a reasonable and workable arrangement to maintain the parent-child relationship. [ 41 ] I should reiterate that, at this stage, I am considering the proposed arrangements only in the context of determining whether S.P. can take advantage of the s. 69(4)(

b) presumption that the relocation will be in the children’s best interests.

On my reading of the legislation, I will have to consider whether the arrangements, beyond the question of their reasonableness and workability to preserve important relationships, are in the children’s best interests at a subsequent stage of my analysis. [ 42 ] In the event that I approve S.P.’s relocation with the children to Central Saanich, S.P. has proposed that she and C.P. each have half of the Christmas, Spring Break and summer holidays with the children, that C.P. have parenting time with the children on long weekends throughout the year and that C.P. have generous electronic communications with the children.

S.P. has offered to share the cost of the children seeing their father by transporting the children on the ferry to exchange them with C.P. at a ferry terminal on the mainland. S.P. has also offered to allow C.P. to stay in her home in Central Saanich with the children if he would like to spend parenting time with them there. [ 43 ] By the terms of an interim without prejudice order made at a Family Case Conference (“FCC”) on October 16, 2014, C.P.’s current parenting time with the children generally consists of alternating weekends and alternating Wednesday and Thursday evenings.

S.P. has testified and produced scheduling records to establish that C.P. generally spent less time with the children prior to the FCC order. S.P. submits that her proposed arrangements will actually result in C.P. having more parenting time with the children than has generally been the case, not less. [ 44 ] C.P. raises a number of legitimate concerns regarding the arrangements proposed by S.P. [ 45 ] C.P. notes that it is expensive and time consuming to travel to Vancouver Island from Kamloops and that there are often difficult road conditions and ferry delays.

C.P. is concerned that if either he or S.P. is late for an exchange or if the roads are in a dangerous condition then he would have to find a hotel, at his expense, to stay with the children rather than take them straight to

Kamloops. [ 46 ] C.P. also notes that his time with the children in Kamloops will be limited by the fact that other friends and family members will want to spend time with the children and the children with them while the children are in Kamloops. [ 47 ] In terms of staying at S.P.’s home in Central Saanich, C.P. is understandably reluctant to do so. While S.P.’s offer is generous, it is not necessarily conducive to C.P. maintaining an independent relationship with the children. [ 48 ] Of greatest concern, C.P. submits that, as the children age, their peer group and activities will become more important to them.

C.P. fears that the children will eventually choose to stay home rather than see their father or, if forced to see their father, will resent seeing him. While I understand C.P.’s fears, the children love their father and there is nothing in the evidence that suggests that they would choose not to see him as they get older. [ 49 ] Anyone who has lived on Vancouver Island for any length of time knows that the time and expense of taking the ferry creates a significant barrier to frequent travel to and from the Island.

Even if S.P. takes the children across the ferry to meet C.P. at the terminal on the mainland, C.P. would likely have to travel in the order of eight hours in good weather and with no highway or traffic problems to pick up the children and drive them back to Kamloops.

If I approve S.P.’s relocation with the children, it is realistic to think that C.P. will be able to enjoy significant parenting time with the children over the Christmas, Spring Break and summer holidays but infrequently on long weekends. [ 50 ] Leaving aside the broader question of whether the proposed relocation is in the children’s best interests, and despite the legitimate concerns raised by C.P., if I approve the relocation, I find that S.P. has proposed reasonable and workable arrangements to “preserve” C.P.’s important relationship with his children. [ 51 ] I am not aware of any order granting “contact” with the children to any other party but there are family members on both sides of the family “who have a significant role in the child(ren)'s (lives)”.

Under s. 69(4), I must also consider whether S.P. has proposed reasonable and workable arrangements to preserve these relationships as well. [ 52 ] S.P.’s mother, J.K., has been a central figure in the children’s lives. The children have lived in her home for several years. She is the primary caregiver when S.P. is working away from home and the children are not with their father. S.P.’s father, D.K., and sister, C.K., have also had a significant role in the children’s lives. They also live in the same home with the children and take an active role in their care.

C.P.’s parents are away from Kamloops for much of the year but spend an extended amount of time with the children in the summer when they take camping trips together. [ 53 ] J.K. testified at trial and made it abundantly clear that, if S.P.’s relocation is approved, J.K. will remain very closely connected with the children. J.K. plans to spend as much as a month helping her daughter and grandchildren transition to their new home and she will subsequently travel to see her daughter and grandchildren as much as needed.

The rest of the family on both sides would see the children when they return to Kamloops at various times during the year. With respect to C.P.’s parents, they would still be able to take the children camping in the summers. [ 54 ] In my view, reasonable and workable plans are in place to preserve the children’s relationship with the other people who play a significant role in their lives.

Best Interests of the Children [ 55 ] Having found that S.P.’s proposed relocation is being made in good faith and that she has proposed reasonable and workable arrangements to preserve the children’s relationship with C.P. and other people who play a significant role in the children’s lives, the statutory presumption under s. 69(4) of the FLA arises.

This means that I must find the proposed relocation to be in the best interests of the children unless C.P. satisfies me otherwise. [ 56 ] In analysing this issue, I am keenly aware of the prohibition in s. 69(7) of the FLA that I “must not consider whether (S.P.) would still relocate if the child's relocation were not permitted.” This statutory prohibition is intended to avoid the “double bind” into which S.P. would otherwise be placed. In Spencer v.

Spencer , 2005 ABCA 262 , the Alberta Court of Appeal described the “double bind” at paragraph 18 as follows: In conducting this inquiry, it is problematic to rely on representations by the custodial parent that he or she will not move without the children should the application to relocate be denied. The effect of such an inquiry places the parent seeking to relocate in a classic double bind.

If the answer is that the parent is not willing to remain behind with the children, he or she raises the prospect of being regarded as self-interested and discounting the children’s best interests in favour of his or her own. On the other hand, advising the court that the parent is prepared to forgo the requested move if unsuccessful, undermines the submissions in favour of relocation by suggesting that such a move is not critical to the parent’s well-being or to that of the children.

If a judge mistakenly relies on a parent’s willingness to stay behind “for the sake of the children,” the status quo becomes an attractive option for a judge to favour because it avoids the difficult decision the application presents. [ 57 ] Our Court of Appeal cited this description with approval in Hejzlar v.

Mitchell-Hejzlar , 2011 BCCA 230 at paragraph 27 . [ 58 ] Though decided prior to the FLA coming into force, in Hejzlar (supra) , our Court of Appeal sets out some additional principles regarding the difficult problem of determining a child’s best interests in the context of a proposed relocation of a child against the wishes of the other parent which, in my view, remain apt. At paragraphs 24 to 26, the Court summarized these principles as follows: [24] From the cases, however, certain principles arise.

The cases confirm the principle expressed in s. 16(10) of the Divorce Act that the court must consider maximizing contact between the child and parent. Yet, that same

section makes it clear that maximizing contact is

not an absolute principle, and is only to be pursued within the limits of that which is “consistent with the best interests of the child.” [25] Second, Gordon v. Goertz tells us that, barring an improper motive for the proposed move, there must be an attitude of respect for a custodial parent. This means, in part, that the party seeking to move need not prove the move is necessary, although any degree of necessity, such as for income-earning reasons, may bear upon the best interests of the child. [26] Third, the authorities generally do not favour the status quo as a ‘default position’.

In Nunweiler this court observed that such an approach “reinserts into custody discussions a presumption which is contrary to the instructions in Gordon v. Goertz to assess each case individually”... [ 59 ] In C.M.B. (supra), Madam Justice Fleming tackled the thorny question of whether, in light of these principles and the prohibition in s 69(7) of the FLA , a court must assess the best interests of the children without any consideration of the status quo whatsoever. In rejecting this

interpretation, Madam Justice Fleming held at paragraph 104: In my view [ s. 69(7) ] cannot properly be interpreted to limit the court from engaging in a “full and sensitive inquiry” into the best interests of a child, now defined in s. 37(2) of the FLA . To do so is to risk prioritizing the rights of the relocating parent, over the best interests of a child. In addition s. 69(7) applies to relocation applications as a whole.

It is difficult to imagine how the court might properly assess reasonable and workable arrangements to preserve the child’s relationship with the other guardian if not permitted to consider the parenting arrangements that exist at the time of the application. (Emphasis in original.) [ 60 ] At paragraph 108, Madam Justice Fleming sets out an

interpretation of s. 69(7) with which I agree: Accordingly I agree with the

interpretation of s. 69(7) which provides that a trial judge must not consider a statement by the relocating parent that he or she would not move without the child as opposed to whether or not he or she would move without the child. I do not agree the provision prohibits the court from considering the status quo or existing arrangements in place at the time of the application.

In my view, s. 69(7) requires the court to discount any statements by the relocating spouse that he or she would not move without the children and engage in an analysis of the child’s best interests in accordance with s. 37(2), the scope of which will depend upon the reality of the situation. (Emphasis in original.) [ 61 ] In this case, the “reality of the situation” is that either the children will relocate with their mother to Central Saanich or their mother will transfer back to a [omitted for posting] station close to Kamloops (which she acknowledges she has the seniority to do) to remain in Kamloops with them.

There was no evidence during the trial of any other scenario arising for the children and counsel for S.P. acknowledges that I must analyse the best interests of the children in the context of the only two realistic scenarios for the children - namely relocating to Central Saanich with their mother or remaining in Kamloops with both of their parents.

In doing so, I will be sensitive not to favour the status quo , I will discount S.P.’s testimony that she will not move without her children and I will pay all due deference to S.P.’s views as the parent who has been primarily responsible for the wellbeing of the children since birth. [ 62 ] To assess what is in the best interests of the children, s. 69(3) of the FLA requires that I consider the factors set out in s. 37(2) as well as those set out in s. 69(4) (

a) of the FLA . As I have already set out findings regarding the s. 69(4) (

a) factors, I will turn now to my consideration of the factors listed in s. 37(2) . Factor (a): the children's health and emotional well-being [ 63 ] By all accounts, E.P. and H.P. are happy, healthy, active and well-adjusted children. They enjoy hiking, swimming, going to parks, playing games, doing crafts and camping in the summers with both sets of grandparents. Both are also active in a church group and have formed close friendships with other children in the community, especially at school and through their church. H.P. does well but E.P. has some struggles at school.

E.P.’s struggles in school are tied in part to night terrors which affect E.P.’s sleep patterns. [ 64 ] I have reviewed the children’s report cards and they contain comments which provide further insight into the children. [ 65 ] H.P. is consistently described as being happy, cooperative, kind, thoughtful, eager, hard-working, friendly, cheerful, positive, and well-liked. She easily meets all expectations for a child of her age at school. [ 66 ] E.P. is also described as being cooperative, kind, hard-working, thoughtful and well-liked. It is clear, however, that he is less outgoing than H.P.

He is often described as being quiet and sensitive. E.P. has received speech therapy and experienced some frustrations, particularly when he was younger, being understood in class. In Kindergarten to Grade 3, E.P. was graded as “approaching” or “meeting” expectations in his subjects. In Grade 4, he received B’s and C’s. [ 67 ] There was no evidence raising any concerns about H.P.’s emotional well-being but it is apparent that there are some concerns regarding E.P. [ 68 ] There was general agreement that E.P. is closer to his mother than his father. This is not surprising.

Beyond the fact that S.P. has been the primary caregiver, E.P. is probably more comfortable with her gentle, quiet and caring manner than C.P.’s caring but more direct and outgoing style.

[ 69 ] Historically, E.P. has not responded well to criticism from his father but C.P. has made some adjustments to his parenting style which has resulted in improvements in his relationship with E.P. While E.P. loves and is happy to stay with his father, I accept S.P.’s evidence that E.P. does not prefer spending extended time with C.P. [ 70 ] S.P. contends that a move to Central Saanich will benefit the children’s health and emotional well-being.

She feels that the children will do better having her home more, less tired and happier with her work situation. [ 71 ] C.P., on the other hand, highlights risks associated with the children leaving behind their friends, families and favourite activities and placing the children in an unfamiliar school while being cared for by an unfamiliar nanny whenever their mother is not available.

C.P. is especially concerned with the children’s care in the event of any emergency which may arise while S.P. is working and unable to respond personally. [ 72 ] I agree with S.P.’s submission that uncertainty does not necessarily equate to a new environment not being in the children’s best interests. I also agree that she has managed capably in the past to successfully navigate significant changes in the children’s lives and to hire sitters who are able to meet the children’s needs.

It is true that the children will not have the benefit of having multiple family members available in the event of emergency, but that is not unusual for many families and I have no reason to think that S.P. will be unable to put in place an appropriate safety plan for the children in the event that such a circumstance arises. [ 73 ] E.P. and H.P. have demonstrated that they can adapt to significant changes in their lives. I accept that they would remain happy and healthy in Central Saanich.

That said, I have two significant concerns about the children’s health and emotional well-being. [ 74 ] First, it is difficult to reconcile S.P.’s submission that her move to Central Saanich will be best for the children with her testimony that E.P. does not prefer to spend extended time with his father. If I approve the relocation, the children would spend half the Christmas, Spring Break and summer holidays and occasional long weekends with C.P.

While it may be, as S.P. submits, that the children’s time with their father in Kamloops would be broken up by time spent with other family members, the reality is that the children would still spend much more extended periods of time with their father than is currently the case. [ 75 ] Second, in my view, the children’s current well-being is closely connected to their close knit family, particularly on S.P.’s side. Even though J.K. has promised to be in Central Saanich to assist in the transition and whenever she is needed, the same is not true for D.K. nor for S.P.’s sister, C.K.

While the children would undoubtedly benefit from more time with their mother, it is hard to conclude that this would offset the corresponding loss of security they currently enjoy with the availability of daily support from C.P. and/or S.P.’s family. [ 76 ] Paying all deference to S.P.’s views and being wary not to favour the status quo by default, my conclusion is that while the children would be healthy and well cared for in Central Saanich, remaining in Kamloops would be better for the children, especially E.P., from the perspective of their overall health and well-being.

Factor (b): the children's views, unless it would be inappropriate to consider them [ 77 ] A Views of the Child report was prepared by Family Justice Counsellor, Karen Fenton. The report was prepared based on interviews with C.P. and S.P. to obtain necessary background information and, of course, also with E.P. and H.P. The report was prepared and filed in November 2014. [ 78 ] In their interviews with Ms. Fenton, both E.P. and H.P. emphasized the direct involvement of S.P.’s family in their day to day lives.

It is clear that both feel safe and secure when their mother is away for work and they are home with their maternal grandparents and aunt. Both E.P. and H.P. described being “excited” about moving to Victoria but Ms. Fenton writes that H.P. has “no idea how it will feel to be a long way away from her maternal extended family and her father” and that E.P. “is hesitant about leaving his family, friends and dog behind.” [ 79 ] Ms.

Fenton summarizes the views of the children as follows: E.P. and H.P. know their mother has accepted a job in Victoria and wants to move there and their father does not want them to live on Vancouver Island. They are accustomed to their maternal grandparents and maternal aunt being actively involved in their care and have friends and activities in Kamloops that they would genuinely miss. The information they have at this point is all based on a couple of fun trips to Victoria with their mother to explore the beaches and enjoy time away with her.

They have no concept of how long their mother’s work shifts will be and who will care for them in her absence. They have not known their father as a primary caregiver, but are used to him being involved on a weekly basis. [ 80 ] It is not unusual for children of E.P. and H.P.’s age not to fully understand the ramifications of a relocation such as the one proposed by their mother. There is really no way to know exactly how they would feel about a move unless and until they actually moved.

At this point, all they know about the Victoria area is based on their enjoyable time there with their mother in the context of what amounted to holiday time. I am in no way being critical of S.P.’s trips to Victoria with her children. The trips were a great idea to relieve any anxiety the children may have been feeling about her plan to relocate there.

That said, because of the understandably limited appreciation the children have at their ages regarding the proposed move, there are some limits to what I can make of their views. [ 81 ] I think the most I can say about the children’s views is that they are happy with their current living arrangements, are open to the idea of moving but also have some concerns about how they will feel moving away from their family and friends. Factor (c): the nature and strength of the relationships between the children and significant persons in the children's lives

[ 82 ] S.P. has always been the children’s primary caregiver. She has done a wonderful job raising her children in sometimes challenging circumstances. C.P. acknowledges that the children have the closest bond with their mother. [ 83 ] The children are also very closely bonded with S.P.’s parents and sister. The children’s maternal grandparents and aunt have taken on a very significant parental role, especially J.K.

Collectively, they have regularly fed the children and put them to bed, picked up and dropped off the children at school and other activities, helped the children with their schoolwork, been fully responsible for the children when S.P. has been away at work and been regularly involved with the children’s church activities. [ 84 ] Though the children have spent less time with their father and E.P. has had some reluctance to spend extended periods of time with him, it is clear to me that C.P. loves and is also closely bonded to the children. C.P. took a parental leave from work when E.P. was born.

Though he was not the primary caregiver, he was certainly present and involved with the children prior to the separation. [ 85 ] Since the separation, C.P. has not been as involved as he could and perhaps should have been with the children. That said, according to S.P.’s records, on average C.P. had after school, day time and/or night time parenting time with the children more than eight times per month in 2012, 2013 and 2014, excluding the summer months when the children were busy with other activities.

C.P. took significant responsibility for after school care and homework in the 2012-2013 school year, during which E.P.’s school performance improved from mostly “approaching” to mostly “meeting” expectations. S.P. was somewhat critical of C.P.’s ability to assist E.P. with his homework but, in my view, C.P. can share in the credit I give to everyone who was involved in making E.P.’s 2012-2013 school year successful. [ 86 ] Under the terms of the FCC order, C.P. has increased and more regular time with the children.

C.P. has also improved how he deals with E.P. so that E.P. is increasingly comfortable spending time with his father. C.P. has always been close to H.P. [ 87 ] The children also have a meaningful relationship with C.P.’s parents as well as C.P.’s current girlfriend and her daughter. They are well established at their school of the last four years and have a host of good friendships, particularly at school and at their church. [ 88 ] If the children relocate to Central Saanich, they will benefit from having more time with their mother.

Further, I am confident that the children would establish new and positive relationships in Central Saanich with their new nanny, new classmates and others.

I cannot find, however, that the increased time with their mother and the formation of new relationships can offset the impact on their existing relationships with their father, their mother’s family and their many friends. [ 89 ] S.P. has proposed “reasonable and workable arrangements” to “preserve” family relationships in the event of a relocation to Central Saanich but these will be different in nature, quality and quantity from the everyday close family relationships that currently exist. [ 90 ] In spite of the herculean effort J.K. is prepared to make to remain closely attached to and fully supportive of her grandchildren, they will not benefit from the security of having her in their lives on a daily basis.

On relocation, the children will see even less of D.K. and their Aunt C.K. [ 91 ] Regarding C.P., by the terms of the FCC order, the children currently see him on ten or more days per month. If I approve the relocation, C.P. will likely have parenting time with the children at Christmas, Spring Break and summer holidays and on occasional long weekends.

Given that the children will spend time with other family during C.P.’s proposed parenting time with his children, I disagree with S.P.’s submission that C.P.’s time with the children will increase not decrease if I approve the relocation. [ 92 ] From the perspective of the nature and strength of the relationships between the children and significant persons in their lives, my conclusion is that it is in the children’s best interests to remain in Kamloops. Factor (d): the history of the children's care [ 93 ] I have already outlined the key aspects of the history of the children’s care.

The history of S.P.’s family’s involvement supports a finding that it is in the best interests of the children to remain in Kamloops. [ 94 ] Regarding C.P., as I have said, C.P. could and perhaps should have been more actively involved in the children’s care but that is not to say that he has not been actively involved. He has. His history of involvement also supports a conclusion that it is in the children’s best interests to remain in Kamloops. Factor (e): the children's need for stability, given the child's age and stage of development [ 95 ] The children are entering a critical time in their development.

They are about to hit their “tween” and teen years - a time when their peer group will become increasingly more important and when there is an increasing risk that peer pressure will lead them astray. Feeling secure through having immediate family support will be very helpful in ensuring that E.P. and H.P. continue on their healthy paths.

In my view, this is especially true for E.P. who has already successfully faced challenges at school with the support of his mother, father and his mother’s family. [ 96 ] Given the increasing importance of peer relationships in the children’s immediate future, I have also considered how their ability to establish and maintain stable friendships in Central Saanich would be affected by the “reasonable and workable arrangements” that S.P. has proposed to preserve the children’s relationships with their father and other people who play a significant role in their lives. [ 97 ] If adhered to, S.P.’s proposal would result in the children being away or busy with their father for extended periods at Christmas, Spring Break and the summer holidays as well as on long weekends throughout the year.

This type of

schedule would be disruptive to the variety of activities the children will want to participate in and to the formation and maintenance of the friendships that go along with participation in such activities. [ 98 ] While it would be good for the children to have more time with their mother, in my view, it would be even better for the

children to continue having significant time with their mother while also having broader family support available to them on a daily basis. The children’s need for stability at their age and stage of development favours the children remaining in Kamloops. Factor (f): the ability of each person who is a guardian to exercise his or her responsibilities [ 99 ] In the past, C.P. struggled with work-related stress. This appears to have had some negative impact on his parenting.

Fortunately, C.P. is no longer struggling with stress and is fully able to exercise his parenting responsibilities. [ 100 ] S.P. has always been fully capable of exercising her parental responsibilities and, as I have already stated, has done a wonderful job with the children. That will not change whether she lives in Kamloops or Central Saanich.

Factor (g): the impact of any family violence on the children's safety, security or well-being, whether the family violence is directed toward the children or another family member [ 101 ] “Family violence” is defined broadly in s. 1 of the FLA to include emotional abuse. C.P. maintains that both parties were responsible for the breakdown in the relationship but has acknowledged that he was emotionally abusive to S.P. during the marriage.

While I accept S.P.’s testimony that C.P. has been critical of E.P. at times and that E.P. has not responded well to that criticism, the evidence falls short of establishing that C.P. has been emotionally abusive to E.P. S.P. did not submit otherwise. [ 102 ] Happily, family violence no longer clouds C.P.’s relationship with S.P. While C.P. and S.P. may not particularly like each other, as all separated parents should, they have put their differences aside to cooperate in the best interests of the children.

C.P. has been appropriately deferential to S.P.’s decisions regarding what is in the best interests of the children and this has worked out well for the children. Factor (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 children and meet the children's needs [ 103 ] I have no concern that family violence will impair the ability of any person to care for the children or meet their needs.

Factor (i): the appropriateness of an arrangement that would require the children's guardians to cooperate [ 104 ] As indicated, C.P. and S.P. have done a good job of setting aside their personal differences to do what is best for the children. I have no reason to think that C.P. and S.P. would not continue to do so whether the children reside in Kamloops or relocate to Central Saanich. Factor (j): any civil or criminal proceeding relevant to the children's safety, security or well-being [ 105 ] There are no civil or criminal proceedings relevant to the children’s safety, security or well-being.

Conclusion on Best Interests [ 106 ] S.P. has been the primary caregiver of the children since they were born. She has done a wonderful job and, leaving the authorities aside, has earned the right to have her views treated with deference. She has understandable personal reasons to pursue a relocation to Central Saanich, a move that would allow her to work more favourable shifts, earn enough to be able to afford a nanny, be home with the children more and gain personal independence.

There is no doubt that a move to Central Saanich would be positive for S.P. [ 107 ] Despite the obvious benefits to S.P., C.P. has met the onus of establishing that S.P.’s proposed relocation would not be in the children’s best interests. [ 108 ] The children have benefitted tremendously from the security and support of being surrounded by S.P.’s family while also maintaining regular and close contact with their father.

As the children reach the “tween” and teen years, family support will be even more critical to them. [ 109 ] The reality is that the time and expense associated with travelling between Kamloops and Central Saanich will be a significant barrier to maintaining the level of contact between the children and their father and other family that is best for them.

While S.P. has proposed “reasonable and workable arrangements” to preserve the children’s relationship with their father and other family, these arrangements are, in my view, not best for the children. [ 110 ] If the arrangements are strictly adhered to, the frequent and/or extended travel between Vancouver Island and Kamloops will impair the children’s ability to form and maintain stable interests, activities and friendships in Central Saanich. [ 111 ] On the other hand, the time and expense of the travel required would probably result in C.P. being unlikely to see the children on many long weekends.

Further, when the children are in Kamloops, there would be pressure on them to spend time with other friends and family. As a consequence of both of these likelihoods, C.P.’s time and ability to bond with the children would be diminished. [ 112 ] Perhaps most importantly, either way, S.P.’s evidence is that E.P. does not prefer to spend extended periods of time with C.P.

It is simply hard to see how the relocation would be good for E.P. given that he would be put in that situation no matter how the arrangements for C.P.’s parenting time with the children play out. [ 113 ] Finally, I fully appreciate that I am not to favour the status quo by default but I cannot ignore the evidence S.P. volunteered that she has been able to maintain a good work-life balance in Kamloops. As S.P. gains seniority, she will eventually and inevitably become eligible for and secure [omitted for posting] position in Kamloops.

In the meantime, life may continue to be somewhat of a grind for S.P. but I know that is a sacrifice that she will make for the well-being of her children.

ORDER [ 114 ] I grant C.P.’s application prohibiting S.P. from relocating the children and dismiss S.P.’s application to relocate the children. The children will remain in Kamloops until the parties agree or the court orders otherwise. [ 115 ] Ms. Oliver will draft the Order. I dispense with the need for C.P. to sign the Order. __________________________________ L.S. Marchand Provincial Court Judge