E.G. v. E.D. Date:, 2016 BCPC 187

Citation: E.G. v. E.D. Date: 20160422 2016 BCPC 187 File No: 1546883 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: E.G. APPLICANT AND: E.D. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.K. KEYES Counsel for the Applicant: K. Parker Counsel for the Respondent: W. Storey Place of Hearing: Prince George , B.C.

Date of Hearing: August 14, 2015 Date of Judgment: April 22, 2016 INTRODUCTION [ 1 ] E.G. and E.D. are the parents of D.F.G. born [omitted for publication]. E.G. and E.D. met online as teenagers. They were married in 2004 and separated in early March, 2015, when D.F.G. was only a few weeks old. They have resided in Prince George, B.C., since 2003. [ 2 ] On April 4, 2015, approximately one month after the parties separated, E.D. gave notice to E.G. of her intention to relocate D.F.G. to Blaine, Washington, USA.

On April 7, 2015, E.G. made an Application to Court to prevent that relocation and E.D. replied seeking permission to relocate and Counterclaimed for guardianship, spousal and child support, and allocation of parenting responsibilities, but not parenting time. No Reply was filed in response to that Counterclaim. PLEADINGS IRREGULARITY [ 3 ] The hearing before me proceeded on the basis that the parties were consenting to an order that both parties are guardians of D.F.G., but that parental responsibilities, parenting time and spousal support are at issue and dependant on the outcome of the relocation issue.

The parties also have a dispute concerning s. 7, expenses in connection with child support. [ 4 ] After the hearing, I discovered that parenting time had not been pleaded and that no Reply had been filed in response to the Counterclaim. [ 5 ] If the Court were to make orders granting relief that has not been pleaded, that would ordinarily mean that such orders are a nullity: Naderi v. Naderi 2012 BCCA 16 (“Naderi ”) and Muscardin v. Marvici 2013 BCSC 531 (“ Muscardin ”).

I note that in Naderi the parties had argued the issue in question on its merits in the hearing, and in Muscardin the hearing was ex parte , but in each case the Court found that the orders in question were a nullity because the pleadings did not seek the specific relief that was ordered. I note that in both cases the parties were self-represented at the hearing.

I also note that in Naderi the Court stated, at para. 18: “Lawyers understand that procedural prerequisites are not always enforced by judges and that orders are often made in Chambers that were not expressly sought in the underlying notice of application….Lay litigants are entitled to expect that the procedural rules will be followed.” [ 6 ] With respect, it seems to me, that if an order is a nullity for want of pleading, it will be a nullity whether the parties are represented or not.

However, if the matter is addressed directly by the parties, it seems to me that they can consent to an amendment to correct a defect in pleadings. It may often be the case that where the parties are represented by counsel, the Court assumes that counsel have tacitly consented to such an amendment.

The problem with tacit understandings is, of course, they are not explicit and the parties may take a different view of such arrangements if the decision does not go the way they had hoped. [ 7 ] I note that an Interim Order was made by consent at a Family Case Conference (the “FCC”) on June 5, 2015, under which guardianship and parental responsibilities are shared, and a parenting time regime, guideline child support, and spousal support have been ordered. Rule 7(4)(

f) of the Provincial Family Court Rules provides that a judge at a FCC may “make an order to which all parties consent.” However, Rule 6(3) provides: “The judge at the first appearance or any subsequent appearance may do one or more of the following: (

a) make an order that all parties consent to in respect of all or any part of what is claimed in the application or reply” [ 8 ] Rule 6(3) appears to apply to all subsequent appearances and makes no exception for Family Case Conferences. It seems to me that Rule 7 cannot contradict Rule 6(3) to grant a judge jurisdiction to order relief not pleaded. It seems to me Rule 7(4)(

f) must be interpreted to be consistent with Rule 6(3), which would mean the Order made at the FCC in this case was made without jurisdiction.

I do not have jurisdiction to declare another Order of the same Court a nullity, even if I were inclined to do so. [ 9 ] However, the arguments advanced with respect to relocation in this case do require me to deal with the legal effect of the parenting time Order made at the FCC because different sections of the Family Law Act (“ FLA ”) may apply depending on whether the Interim Order with respect to parenting time and arrangements has legal effect. [ 10 ] In this case, the hearing before me was conducted by experienced counsel and fully argued on the merits on the apparent assumption by all parties that parenting time had been pleaded and was an issue properly before the Court.

The parties, while represented by the same counsel, had previously consented to the making of the Interim Order concerning parenting time. I note that, s. 199 of the FLA provides that: 199(1) A Court must ensure that a proceeding under this Act is conducted (

a) with as little delay and formality as possible [ 11 ] When this irregularity of pleading came to my attention, I arranged for counsel to be alerted to the problem and offered counsel

the opportunity to make submissions on this issue. Both counsel consented to the amendment of the Counterclaim to include “parenting time” and to treat the amendment as if it were in place prior to the time of the hearing before me. In the interests of proceeding with as little delay and formality as possible, I have therefore proceeded on that basis. EVIDENCE [ 12 ] The underlying facts of this matter are not in any significant dispute. E.D. is an only child who comes from Colorado Springs, Colorado, USA; E.G. was born and raised in Prince George, B.C.

E.D. is now 31 and E.G. is 33. [ 13 ] They met via the internet when they were both teenagers. In August 2002, after E.D. graduated from high school, E.G. and a friend travelled to Colorado for a short visit and the parties met in person. E.D. came to Prince George in February 2003 and stayed for a six month visit. She went back to Colorado in August 2003 intending to go to college, but changed her mind and returned to Prince George in September instead. The parties were married the following year and at some point E.D. applied to immigrate to Canada.

E.D. has lived in Prince George with E.G. since 2003. [ 14 ] E.D. obtained her permanent residency status in 2007 but did not work outside the home until 2008. She said she could not work or go to school between 2003 and 2008 because of her immigration status, something I find surprising, considering that many other immigrants to Canada seem to be able to work within much less time. In any event, E.G. worked full time and supported them both. [ 15 ] In 2008, E.D. obtained employment as a kennel technician at Petland, then joined (omitted) as a receptionist in 2010 and later moved to (omitted) as a receptionist.

She is currently on maternity leave from that employment, which will be available to her when she ceases maternity leave in January 2016. Her 2014 income was $28,915 but her current income on Employment Insurance is considerably lower at $16,128, or approximately $1,300 per month. E.G. pays her $815 in child support and $700 in spousal support and she receives benefits of $500 per month. [ 16 ] E.G. has worked at (omitted), a heavy truck business in Prince George, since he got out of high school. He has no post- secondary education or other work experience.

He is now a parts man, third in charge at the (omitted) parts department and earned $87,660 in 2014. He works shifts that change from week to week, but he has offered to switch to straight night shift in order to care for D.F.G. during the day so that E.D. will be free to work and/or upgrade her education. [ 17 ] With respect to post-secondary education, E.D. said during her examination in chief that she had no education beyond high school and is therefore unable to do anything other than the customer service/receptionist work she has been doing.

She said there “had been no money” for educational upgrades and that she felt no urgency to do so. However, under cross examination, she agreed that part of the family debt was $5,000 for an online medical transcription course she started but did not complete. [ 18 ] E.G. added that E.D. had completed a medical terminology course that would have enabled her to get a job as a clerk at the hospital for approximately $20 per hour (considerably more than she earned as a receptionist at the veterinary clinics) but that she did not follow up on that. Mrs.

G., E.G.’s mother, testified that she had been a medical transcriptionist during her career and had encouraged E.D. to take courses in that regard. She said she advised E.D. of openings that came to her attention that paid $22 per hour and had offered to assist E.D. with the application process, but that nothing came of that either. [ 19 ] E.D. admitted that she had taken a one year medical terminology course online. She said that she had made an application for the hospital clerk’s job but heard nothing back.

She said she had applied for a medical transcriptionist’s position when she was working on the medical transcriber’s course and did receive a call, but was told she would have to complete the course first. She was of the view that the course was disorganised and might only produce part time work, and besides, she didn’t really like medical transcription. She liked her job at (omitted) and she decided not to complete the course. [ 20 ] E.D. says the parties were not particularly careful with their money, as a result of which they carry debt.

The parties bought a house in 2010, which is currently appraised at $248,000, on which they owe a mortgage of approximately $185,000. They also have a line of credit debt of approximately $34,000 and the parties owe approximately $14,000 on the car E.D. drives. [ 21 ] Since the parties have separated, E.G. has been paying the mortgage and the personal loan.

E.G. has offered to refinance to pay out the joint debt and to pay out E.D. her equity in the family home but E.D. says that she wants the house sold, because she objects to his continuing to live there. [ 22 ] E.D. says that E.G. was not particularly involved with her pregnancy prior to D.F.G.’s birth and considerable time was spent in her testimony on the fact that E.G. asked no questions of the “Doula” (labour coach) who visited prior to the birth, but instead he went to play video games.

E.G. said the comments and questions from the Doula were directed mostly at E.D. and her mother and that she directed no questions to E.G. E.D. also complained that E.G. was less than enthusiastic about shopping for baby supplies and equipment, although she admitted he worked hard to complete renovations they undertook to the family home in preparation for the baby’s birth. [ 23 ] E.D. also complained that E.G. did not arrange to take his vacation commencing on her due date for delivery; instead, he waited to give his notice for vacation until after D.F.G. was born.

He ended up taking vacation in early February when his sister came to visit. However, E.D.’s mother, K.E., was residing with them to assist E.D., both before and after the birth, for several months. [ 24 ] After D.F.G. was born, E.D. says that E.G. took over looking after D.F.G. when he came home from work, so that E.D. could sleep and then she got up at midnight and E.G. went to sleep. E.G. did not get up with D.F.G. in the night because he had to work in the morning.

After D.F.G. was born, E.D. slept in the master bedroom with D.F.G. and E.G. was obliged to sleep on the couch upstairs. [ 25 ] E.D. asked E.G. to leave the family home in March 2015 and he went to his parents’ home to live. During the second week of April he moved back into the family home and E.D. decided to move out a couple of weeks later. E.D. did not tell E.G. about her plans to move until she had already arranged to move, but when she told him she was moving he offered to leave instead, so she could remain in the family home.

However, she testified that she did not want to be in the marital home anymore, so she moved out anyway.

[ 26 ] In the meantime, she delivered to E.G. her Notice of Intention to Relocate to Blaine, WA, on April 4, 2015. [ 27 ] Since the parties separated, E.D. has had primary care of D.F.G., as she is breastfeeding and off work on maternity leave. E.G. has seen D.F.G. daily - both before and after a Consent Order made on June 5, 2015. E.D. says E.G. used to get frustrated when D.F.G. cried, but that he has grown much more comfortable as a parent over time. E.G. feeds, bathes, and changes D.F.G. and sees him daily for several hours, with 8 hour periods on his days off, broken by a two hour feeding/napping period.

E.D. complains that because E.G. works a variety of shifts, his parenting time with D.F.G. is not on a regular

schedule which causes D.F.G. to be cranky. She wants E.G. to change his shifts to be more consistent. [ 28 ] K.E. testified that before the parties separated she had discussed with E.G. the idea of changing his shifts to evenings so E.D. could return to work. At trial, E.G. offered to switch his shifts to straight nights to accommodate E.D.’s desire for stability and so that he can take D.F.G. regularly during the day to enable E.D. to return to work or school to upgrade her education.

E.D. agreed that if E.G. changed his shifts “that would be great”, but maintained that even if he did so, that would not enable her to upgrade her education “any more than win the lottery.” [ 29 ] E.D. says she has not made any close friends in Prince George during the 13 years she has lived here. Some friends she met at work at Petland moved away or drifted away and she did not make any friends at her subsequent places of employment. She says that her social circle has been basically E.G. and his family and friends, although as time passed they saw less of E.G.’s parents.

She enjoyed the company of his sister K. and her husband, who visit from time to time. In fact, both she and E.G. were part of the wedding party when K. was married and K. was a part of E.D.’s wedding party when that occurred. [ 30 ] Until recently, E.D.’s mother lived in Colorado and E.D. visited her approximately twice per year except for 2010-2013 when E.D. and E.G. purchased their family home in Prince George.

E.D.’s mother typically visited her as well and she came for an extended period before and after the baby’s birth. [ 31 ] E.D.’s parents are divorced and E.D.’s father came for the wedding in 2004 but has not returned to Prince George since that time. When E.D. visited Colorado with D.F.G. this past summer, she saw only her mother’s parents and sister and did not see her own father or his family, although her mother testified that should E.D.’s father choose to visit E.D. and the baby in Washington State, she would not object.

Until E.D. was trying to get pregnant, K.E. said she and E.D. talked weekly on the phone, but now they talk daily. [ 32 ] K.E. is now retired and as a consequence of that she moved her 35 foot sail boat to Blaine, WA, in April 2015 with the intention of living on it and spending her retirement living her lifelong dream of cruising the ocean. She stayed with E.D. and E.G. in December 2014 through March 2015, in part because her boat had been damaged during the move to Blaine and she could not live on it during repairs.

She has offered to move her yacht to a marina in Bellingham, WA, if E.D. were permitted to relocate to Bellingham. She said she would look to purchase a condo or other accommodation on land in order to assist E.D. if she relocates to Bellingham, but hadn’t considered purchasing accommodation in Prince George to assist E.D. [ 33 ] E.D. feels estranged from the G. family at this point. She suggested in her evidence that her relationship with the G. family had soured even before the baby was born, because she felt that Mr. and Mrs. G. did not visit her as much as she thought they should.

However, she admitted that the reason she felt estranged was that she resented the fact that Mr. or Mrs. G. had commented to E.G. that she and E.G. were not doing enough to keep Mr. and Mrs. G. in their lives. E.D. attributed her attitude to her hormonal issues during pregnancy. She said that the relationship was strained when D.F.G. was born because she found it hard to be around Mr. and Mrs. G.

She testified that they did not come over to help out with the housework or the baby prior to the parties separating when her mother was staying with them, although they did come over to visit. [ 34 ] E.D. admits that Mr. and Mrs. G. both offered her support when she had a discussion with them in April 2015 about the reasons for her separation from E.G. She testified that they both told her they understood why she felt she had to leave and said they wanted her to feel she was a daughter to them and was important to them.

However, E.D. complains that they have not followed up with anything concrete, like invitations for coffee or visits. She admits that she did not call them or invite them for coffee or visits either. When E.D. asked Mrs. G. to babysit on two occasions, she did. E.D. noted in particular that Mrs. G. did not greet her or speak to her when E.G. and Mrs. G. came to say goodbye to the baby before E.D. took him on vacation to the US last summer. On the other hand, Mrs. G. points out, and E.D. admits, that E.D. did not greet or speak to her either. Both acknowledge that Mrs.

G. later that day sent E.D. a text wishing her a happy birthday. [ 35 ] Both Mr. and Mrs. G. reiterated during their testimony their offers to support E.D. in any way she asks. Mr. G., in particular, said that he was very disappointed that E.D. wanted to take his grandson away from him because from the time she arrived he always thought of her as a daughter.

He specifically said that in the future, he “would like to sit down, have BBQs, go to ball games, that we may not be the best of buddies, but we will be respectful, we will help, financially or whatever - if she needs something that is in D.F.G.’s best interest we won’t hesitate to help.” [ 36 ] E.D. testified that the G. family has a habit of becoming estranged from their relatives and that she feels they have done, or will do, the same thing to her. She supports her position by pointing to the fact that Mr. G. will neither speak to his own father nor to one of his sisters. [ 37 ] Mr.

G. testified that he has stopped speaking to his father because he was terribly hurt that his father went on vacation knowing his daughter (Mr. G.’s younger sister) lay on her deathbed and immediately after her death kicked her children out of the home his sister had paid for. It was abundantly clear from his evidence that Mr. G. cared deeply for his younger sister and felt very badly for the plight of his niece and nephew and had tried to assist them himself. [ 38 ] With respect to his other sister, she and Mr.

G. have not got along for many years and she had nothing to do with E.D. or E.G. until she contacted E.D. after her separation from E.G. became known. Mr. G. admitted calling his sister and telling her to “butt out”. He testified that he was not seeking to deprive E.D. of support, but felt that his sister was poking her nose in where she should not. He apologized to E.D. for doing so.

[ 39 ] E.D. also feels she cannot rely on E.G. or his family to support her emotionally, because E.G. deceived her about his secret habit of photographing a neighbour of theirs, which caused the breakdown of the marriage. Since then, he also deceived her about having fed D.F.G. some rice pablum without her permission. [ 40 ] She also complains that she cannot trust E.G. to support her financially, although he is paying spousal support and child support, because E.G. refused to pay $400 when she hired a sleep counsellor to help put D.F.G. on a sleep schedule.

She admits that she did not ask E.G. about this expense in advance. She also admits he has been paying both the mortgage and the line of credit since separation, although he has not always paid the line of credit on time. Since the separation, E.D. has been paying the loan on the vehicle she drives (but I infer they jointly own), which will be paid off in 2016. [ 41 ] E.D. says now that she and E.G. have separated, she feels utterly alone in Prince George with no one to turn to for emotional support for herself.

She feels, therefore, the only way she can have the emotional support she desires is to move to Washington State to live with her mother, with whom she is very close. [ 42 ] E.D.’s Notice of Relocation declared an intention to relocate to Blaine, where K.E.’s boat is moored. After that notice was given, E.D.’s mother investigated educational opportunities for her in Blaine. After discovering there were few opportunities there, E.D.’s mother suggested Bellingham would be more suitable.

As a result of her mother’s inquiries, E.D. now applies to relocate to Bellingham, where she says she intends to upgrade her education at Bellingham Technical College in order to become a veterinary technician. [ 43 ] That program will take two years to complete and cannot be commenced until January 2017 at the earliest. E.D. will have to complete five prerequisite courses in order to qualify, which will take a year. [ 44 ] In terms of cost, E.D. estimated the program will cost $4,000 per year, assuming she obtains grants and student loans.

She admitted that those numbers were based upon the assumption she would qualify as a state resident, which she is not, since she has never lived there.

When it was suggested to her that the tuition for out of state applicants was actually $10,000 per year, she admitted she had not investigated that. [ 45 ] E.D. did provide a printout from the college website indicating an average wage of $34,507 upon graduation, but other internet derived materials provided indicated an average salary of $28,000 and a median of $27,552. [ 46 ] E.D. believes that the cost of living in Washington State is less than here, although she has not investigated that subject and provided no evidence to substantiate that belief. [ 47 ] I note that E.D. earned $28,915 in 2014 at (omitted) in Prince George, despite having left on maternity leave in December before the year was complete. [ 48 ] E.D. admitted that a Veterinary Technology program is offered at Thompson Rivers University in Kamloops, B.C.

It is a two year program on campus or the program is offered as an “online” distance program, for students who are already employed in a veterinary office and have a sponsoring veterinarian (the “TRU program”). [ 49 ] Dr. (omitted), who owns the veterinary office where E.D. is employed, has already agreed to take on this role and support her in the training while it was underway, although he could not commit to hiring her afterward.

The anticipated salary for a person with that qualification in British Columbia is $34,000-$44,000 annually. [ 50 ] E.D. testified that she thought that the TRU program costs about $11,000, but admitted that she could be wrong, and that she hadn’t looked into the cost of the program because she is not interested in it.

She says she would rather go “in person” than “online” and that if she is living in Prince George she will have to work full time and won’t have time to take classes in any capacity, despite the fact that the TRU online program is designed specifically for students who are working at a veterinary office. [ 51 ] E.D. says that if she relocates to Washington State, she and D.F.G. will live with her mother on her mother’s yacht, which she describes “is like a large camper.” She and D.F.G. stayed there for three days with her mother during a visit this past summer and she found it very comfortable.

The yacht is currently moored at a marina in Blaine, but her mother will move it to Bellingham should her application to relocate be granted. [ 52 ] E.D. says there are several advantages for her in living in Bellingham over Prince George. She says that she will be able to upgrade her education less expensively than in B.C., and that her living expenses will be reduced because her mother will, at first, allow her and the baby to reside with her on her yacht and then her mother intends to purchase accommodation on land and provide living expenses and babysitting services for free while E.D. attends school.

She plans to put D.F.G. into day-care as soon as possible and she plans to take part time jobs to pay for her education and living expenses. [ 53 ] In contrast, E.D. says that she cannot upgrade her education here in Prince George because she will have to work full time just to pay bills. She says she will have no money left over to pay for school and no time left over to attend school.

She says that she will need spousal support at the high end of the guidelines just to make ends meet and will live paycheque to paycheque for the rest of her life, with no pension, no retirement and no way for her to obtain a career. E.D.’s Proposals To Maintain the Relationship Between D.F.G. and His Father [ 54 ] E.D. testified that her research indicates it is important for child development for the child to have close and continuous contact with both parents, and she supports that for D.F.G.

Therefore, she suggests that E.G. should move to Washington State to live and work so that he can be involved in D.F.G.’s life. She provided some advertisements from the internet indicating jobs she thought E.G. could obtain.

[ 55 ] E.D. also suggested that E.G. could move to the lower mainland of British Columbia and get work there. If he moved to the lower mainland, E.D. says she would offer parenting time every other day and she would drive from Bellingham to E.G.’s location in the lower mainland to facilitate that if necessary, as well as facilitate electronic access daily. [ 56 ] If E.G. remained in Prince George, she offers to bring D.F.G. every two weeks in the summer, alternating weeks at Christmas and Easter and E.G. could come to Bellingham as much as he wanted.

If E.D. is permitted to relocate D.F.G. to Bellingham, she will abandon her claim for spousal support, because she will not need it as she will have her mother’s support. E.G.’s Response To Those Proposals [ 57 ] With respect to the proposal that he could move to the United States, E.G. says as a Canadian citizen, he would have to be sponsored to be a permanent resident in order to work in the United States and he has no such sponsor.

Therefore, he says, the suggestion that he could relocate to the United States is not workable. [ 58 ] With respect to the proposal that E.G. move to the lower mainland of B.C. to maintain his relationship with D.F.G. and to accommodate E.D.’s relocation, E.G. testified that he was not qualified for any of the jobs (with the exception of one in Abbotsford) shown in the advertisements. With regard to the one position for which he was qualified, with his own company, (omitted), he had inquired and that position was no longer available.

In any event, E.G. testified that his salary would not be sufficient for him to live in the lower mainland as housing costs are so much higher than Prince George. Thus, he says, the proposal that he move to the lower mainland is not workable. [ 59 ] E.G. testified that he loves his son and is deeply involved with his life. He takes the position that to see his son only on summer vacations and holidays would destroy the relationship he has with his son.

He wants to maintain that relationship and to give D.F.G. the sort of life he had growing up, which included basketball, other team sports, as well as winter sports such as skiing, snowboarding, and hunting which he continues to do today. [ 60 ] E.G. said his parents were deeply engaged with him as a child and young person, ensuring that he played in team sports, taking him to practice and attending games. His mother coached. E.G. said he intends to be just as involved with his son as his parents were. [ 61 ] Mr. G. said he never missed a single one of E.G.’s games and looks forward to the same for D.F.G.

As mentioned earlier, E.G. has offered to switch his shift to straight nights in order to have regular shift that will accommodate D.F.G.’s need for stability and to enable E.D. to become self-sufficient. Mr. and Mrs. G. have offered to rearrange their schedules to assist both parties with the care of D.F.G. [ 62 ] E.G. intends to continue living in the family home which he says is walking distance to elementary, middle and high school, and only a few blocks from his parents’ house where he grew up. He has worked hard to renovate the home and it has a large lot and fenced yard.

His parents helped him to replace all of D.F.G.’s furniture which E.D. took with her when she moved out and have purchased a backyard pool and home gym for him since the separation. LAW [ 63 ] The Family Law Act (“ FLA ”) provisions relating to relocation are as follows. [ 64 ]

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

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

(1) This

section applies if all of the following circumstances exist: (

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

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

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

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

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

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

b) must not consider whether the guardian who is planning to move would do so without the child. [ 65 ] For ease of reference I will reproduce Division 6 of the FLA as follows: Division 6 — Relocation Definition and application 65

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

(

a) a guardian, or (

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

(2) This Division applies if (

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

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

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

a) the date of the relocation, and (

b) the name of the proposed location.

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

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

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

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

(1) If notice is required under

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

(2) Nothing in subsection (1) prevents (

a) a guardian from making an application under

section 69 [orders respecting relocation] , or (

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

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

section 66 [notice of relocation] that the guardian plans to relocate the child, the relocation may occur on or after the date set out in the notice unless another guardian of the child, within 30 days after receiving the notice, files an application for an order to prohibit the relocation. Orders respecting relocation 69

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

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

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

a) of this section.

(4) If an application is made under this

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

a) the relocating guardian must satisfy the court that (

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

(5) If an application is made under this

section and the relocating guardian and another guardian have substantially equal parenting time with the child, the relocating guardian must satisfy the court (

a) of the factors described in subsection (4)(a), and

(

b) that the relocation is in the best interests of the child.

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

a) the reasons for the proposed relocation; (

b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the 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 the child's relocation were not permitted. If relocation permitted 70

(1) If the court makes an order under

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

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

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

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

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

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

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

section 47 [changing, suspending or terminating orders respecting parenting arrangements] . [ 66 ] In this case, after Notice of Relocation was given to E.G. on April 4, 2015, he applied to Court to prevent it. An Interim Order was made to prohibit E.D. from moving D.F.G.’s residence outside of Prince George without further court order, without prejudice to E.D.’s Application to relocate. [ 67 ] On June 5, 2015, an Order was made by consent at the FCC that dealt with guardianship, parenting responsibilities and parenting time, child and spousal support. Mr.

Storey, in his opening submissions on behalf of E.D., submitted the spousal support portion of the Order was “without prejudice”, but there is no notation on the Order to the effect that any portion of it is “without prejudice.” In my view, the question of whether the Interim Order was made “without prejudice” is quite material to the determination of which

section of the FLA provisions regarding relocation applies to this situation. [ 68 ] It seems to me that if an order is made “without prejudice”, it must be treated as such. Such an order cannot be used to prejudice one side or the other; in this case, to substantively change which provisions of the FLA applicable to the facts of the case. That would render a “without prejudice” provision, presumably the basis upon which the consent was given, meaningless.

If, in fact, the Interim Order was made “without prejudice”, in my view it ought not to be considered an “order” for the purposes of s. 46 and Division 6 and accordingly does not trigger the application of Division 6 instead of s. 46. [ 69 ] The Order does provide E.D. with substantially greater parenting time than E.G. The Order reflected the state of affairs at the time which was that E.D. is not working while on maternity leave (which would end in December 2015 or January 2016) and that D.F.G. was a very young baby, who was breastfeeding (something that would also change as he grows older).

Section 69(4) of the FLA creates a different regime for those parents who have unequal parenting regimes than is provided for substantially equal parenting regimes; that is, it presumes a relocation of the child is in the child’s best interest as long as the proposed move is in good faith and reasonable and workable arrangements for maintaining meaningful relationships with the child have been proposed. [ 70 ] I note parenthetically that it seems in most cases that all parties, including the Court, have assumed that this

section allocates this advantage only to the parent with the greater proportion of parenting time, but there is no such provision in the section. Thus, it would give the same advantage (possibly quite perversely) to a parent with very little parenting time who wished to move with the child as it does to the parent with the overwhelming majority of the time. [ 71 ] Another problem with the

section is that it can work a substantial unfairness in granting such an advantage to a parent who has the greater share of parenting time pursuant to an interim order that is based upon an obviously temporary state of affairs, as is the case here.

It would be, I suspect, very difficult to find a situation in which parenting time was shared equally between parents of a very young breast fed baby, so the invariable result, if interim orders are to be treated indistinguishably from final orders under this section, is that all breast feeding mothers will have a legal advantage (not having to prove that the move is in the best interest of the child) in relocation cases, despite the fact that breast feeding is, in fact, manifestly temporary. Presumably the drafters of the legislation were not intending

to reintroduce a “tender years” doctrine for relocation cases, given that under s. 40(4) the FLA no particular parenting arrangement ispresumed to be in the best interest of the child. If interim orders are to be treated as final orders for the purposes of relocation, then thatresult is virtually unavoidable wherever babies are concerned. [72] With respect to interim orders generally, in Acosta v.

Munoz (unreported, Court File No 12-26150, Vancouver ProvincialCourt), Judge Dillon considered the question of whether interim orders should qualify as “orders” for the purpose of Division 6 andconcluded that the answer depended on the context in which the interim orders were made: [11] The context in which an interim order is reached (such as at a judicial case conference or after fully considered negotiations), andthe scope of parenting responsibilities and arrangements addressed in the interim order, are relevant to determining if the order fallswithin the meaning of s. 65.

Many interim orders are “make peace” orders of limited scope intended to stabilize difficult family relationsuntil the competing claims can be adjudicated on their merits. [73] The higher court authorities go both ways on the issue of whether interim orders are “orders” for the purposes of s. 69 of theFLA. [74] In A.J.D. v. E.A.E. 2013 BCSC 2160 (“AJD”), the question was whether or not an interim order establishing parentingarrangements made after the Notice to Relocate was given was an “order” for purposes of s. 46, and Division 6. Madam Justice Harrisconsidered the conflicting decisions of L.J.R. v.

S.W.R. 2013 BCSC 1344 (“LJR”) where Mr. Justice Betton held that interim orderstrigger Division 6 as long as they deal with parenting arrangements, and S.J.F. v. R.M.N. 2013 BCSC 1812 where Mr. JusticePunnett held that only final orders triggered Division 6. Madame Justice Harris agreed with the decision of Mr. Justice Betton that theinterim order establishing parenting arrangements did trigger the application of Division 6. No decision on the subject has been made asyet, so far as I am aware, by the B.C. Court of Appeal; in fact, in the recent decision of Fotsch v. Begin (2015 BCCA 403), at paragraph75, the B.C.

Court of Appeal expressly declined to make a decision on that issue. [75] Interestingly, the Court of Appeal in that case did specifically note that the interim order was expressly made “withoutprejudice” and that the parties agreed it “did not establish a status quo or presumptive parenting arrangement for determining the bestinterests of the child” [para 77] but nevertheless appeared to assume that the question of relocation would be decided under s. 69 (insteadof s. 46).

Although the Court in Fotsch appeared to accord particular significance to the fact that the interim order was made “withoutprejudice”, it did not ask, or answer, the question of whether such a “without prejudice” order counted as an order at all for determiningwhether s. 69 or s. 46 governed the relocation issue. [76] The Court may have proceeded in that fashion because in that case the interim order created substantially equal parenting time,so s. 69(5) would require the relocating guardian to satisfy the Court that the relocation was in the best interest of the child under s.69(5), just as would be necessary under s. 46.

Thus, it was not necessary to address the effect of a “without prejudice” order, butunfortunately there appears to be no other guidance on this issue. [77] In this case, the Consent Order before Judge Klinger was made approximately two months after the Notice of Relocation wasgiven by E.D. and the parties filed their Application, Reply and Counterclaim, all in anticipation of a contested hearing with respect torelocation. In addition to parenting arrangements, the Interim Order dealt with interim child and spousal support.

As stated earlier,E.D.’s counsel submitted that some portion of that Order, at least, was “without prejudice” although it does not say so. [78] What is indisputable is that the Order was certainly made with the clear anticipation that everything in it concerning parentingarrangements was subject to change depending on the outcome of E.D.’s relocation application.

In that context, it seems to me quiteimproper that the Interim Order be used to place E.D. at the strategic advantage under s. 69(4) of requiring the Court to presume that therelocation is in the best interest of the child - when in fact the question of the best interest of the child with respect to parentingarrangements, all dependent on relocation, had yet to be determined. [79] I also note that the Interim Order with respect to parenting time was made without jurisdiction since parenting time was notsought in the pleadings when the Order was made.

As I mentioned earlier, it may be that the parenting time portion of this Order is inlaw, a nullity. It is the only the parenting time Order, giving E.D. and E.G. unequal parenting time, which triggers the application of s.69(4). If that Order is a nullity, then E.D. cannot rely on it in order to rely on the provisions of s. 69(4) to give her the advantage of nothaving to prove that the relocation is in D.F.G.’s best interest. [80] In this situation, I am of the view that s. 69(4) should not apply.

However, given that the authorities go both ways on the issueof whether interim orders are “orders” for this purpose and there is at this time no Court of Appeal authority on this subject, I willanalyse this case under both s. 46 and s. 69(4). I am also mindful of the remarks of Madam Justice Harris in C.A.P v. M.S.P. 2015 BCSC183 (“CAP”) with respect to the analysis under s. 69, as follows: [49] Having said that, I agree with the caution expressed by Mr.

Justice Betton in L.J.R., and Madam Justice Fisher in Hadjioannou v.Hadjioannou, 2013 BCSC 1682 , that whether or not a relocating parent has been able to establish the relocation was made ingood faith and that reasonable arrangements have been made to preserve the child's relationship with the other parent, there remains anobligation on the court to consider whether the arrangement would be in the best interests of the child. In that regard I agree that thefactors set out in section 69(4) and (6) are connected to and not wholly separate from the consideration of the best interests of the child. [81] Mr.

Storey, for E.D., drew to my attention to the decision of McCormack v. Pepin 2014 BCSC 2230, in which the Court orderedthat a four year old child be relocated to Scotland with her mother, a Scottish citizen. With the agreement of the father, the mother hadalready resided there for approximately a year with the child, in order to look after her mother who was ill. The mother was a registerednurse who had secured well- remunerated employment in Scotland, resided with her grandmother in a large home owned by hergrandmother, and had excellent and free childcare arrangements thanks to the Scottish government.

The child had established

relationships with the mother’s extended family in Scotland. [ 82 ] By contrast, the cost of living in Vancouver and cost of day-care due to the shifts available to the mother as a nurse in Vancouver, now that she was separated from the father, would be prohibitive and the child would rarely see her. The father, in Vancouver, had a history of little or no employment, unstable housing arrangements and the child had no family ties with anyone in Vancouver aside from her father.

In those circumstances the Court held that the mother’s proposed move was in good faith and that she had satisfied both the requirements of s.69(4) and, if applicable, s.46. [ 83 ] Similarly, in Fotsch v. Begin 2015 BSCS 227, the mother was a German citizen who sought to relocate her three year old daughter to Germany contrary to the wishes of the father, who resided in Vancouver, B.C. Her application was granted. In that case, the relationship was of very short duration (only three years) and during the relationship the parties had intended to move to Germany once the father’s university degree was completed.

The Court found the father had agreed that the mother and child could relocate to Germany if reconciliation efforts failed. They were, in fact, visiting there when they separated for the last time. The mother had a “substantial, established family and supportive network in Germany” (including her parents, brother, grandmother, cousins, an aunt, uncle, and best friends), whereas the father had only one member of extended family in Vancouver. [ 84 ] The Court also noted that the parties had given up their apartment and disposed of their furniture when they left for Germany, having no intention to live in Vancouver.

The Court found that the father really had no home to go to and no concrete plan for accommodation in Vancouver and had created an artificial habitual residence in Vancouver for the purposes of the application to return the mother and child from Germany.

The father paid only marginal child support and despite his claim to German authorities that he would assist the mother with living expenses when he applied to have her return from Germany, he failed to do so upon her return, and never paid spousal support. [ 85 ] Further, the father in Fostch had never undertaken care for the child on his own at home prior to her turning one year old and had little involvement in the child’s care despite encouragement from the mother. [ 86 ] Although both McCormack and Fotsch both permitted mother and child to move to another country and live with family, they are entirely distinguishable from the case at bar on its facts.

In the case at bar, it is the parent opposed to relocation who has a stable well remunerated employment, residence and extended family ties in the home location. In the case at bar, the parent seeking relocation has a good job available to her along with the possibility of career enhancement with continued employment in the home location, but where she proposes to move, in Washington State, she has no employment, no ties of family or friendship whatsoever aside from her mother (who has no ties to that community either).

Additionally, her planned employment prospects, after more than three years of college, if she is successful, will likely produce an income no greater than she already enjoys in her present occupation in Prince George (when she returns to work after her maternity leave expires). [ 87 ] In terms of stability of housing, unlike McCormack , where the proposed place of residence was multi-bedroom flat in a large mansion surrounded by extensive grounds, minutes from day-care and school, and unlike Fotsch , where the mother lived with her father in his four bedroom house, E.D. proposes to move the baby to a sailboat, which she describes as similar to a “large camper.” Unlike McCormack and Fotsch , where the extended family was all comfortably settled in the immediate area, E.D.’s proposed home is stable only so long as her mother foregoes her lifelong dream of spending her retirement sailing the ocean and there is no extended family (aside from K.E.) at all. [ 88 ] Further, unlike McCormack and Fotsch , where the day-care for the child was government sponsored and very inexpensive, well within the means of the mother in each case, E.D.’s proposal for D.F.G.’s childcare is that K.E. must give up her retirement dreams to provide full time childcare for D.F.G. until she has the financial wherewithal to afford paid childcare. [ 89 ] In both Fotsch and McCormack , each mother had already relocated with the child to the other country with the agreement of the father, prior to the father applying to the Court to prevent the permanent relocation, which is not the case before me. [ 90 ] Furthermore, unlike the father in Fotsch , E.G. has been looking after D.F.G. on his own daily since the parties separated.

FINDINGS OF FACT [ 91 ] Both E.D. and E.G. are competent and loving parents and both are intimately involved in the parenting of their child.

In particular, I find that despite the fact that his parenting time is limited due to the fact that D.F.G. is breast fed, E.G. has maintained daily parenting time with D.F.G. and is as involved with D.F.G. as much as E.D. permits him to be. [ 92 ] Contrary to her assertion, I find that E.D. has not been shut out by E.G.’s family as a result of the marriage breakdown; in fact, to the extent that there is estrangement between E.D. and the G. family, I find that estrangement began before the parties separated and E.D. is largely responsible for it. E.D. argues that she has been rebuffed by Mr. and Mrs.

G. but I find that the opposite is true; I find that Mr. and Mrs. G. wished to have a closer relationship with E.D. and E.G. and said so to E.G. long before the separation of the parties, but E.D. took offence and rebuffed them, particularly as her pregnancy advanced and her relationship with her mother became closer. [ 93 ] E.D. points to the estrangement between Mr. G. senior and some members of his family and would have me infer that the G. family will pursue an estrangement with E.D., and by extension, D.F.G. I decline to draw that inference.

Family estrangements are something that happens in many families, sometimes for very good reasons. Certainly it appears that E.D.’s relationship with her father is not nearly as close that with her mother; in fact, it appears from the evidence that she did not see her father nor take D.F.G. to see him when she took D.F.G. to the United States last summer.

No explanation was provided to me with respect to that apparent estrangement in E.D.’s family. [ 94 ] I find that the G. grandparents have a warm, loving and constant relationship with D.F.G. and there is no reason to suppose they will unilaterally sever that relationship with their grandson. I am not prepared to infer that D.F.G.’s best interest will be impaired by his grandfather’s unhappy relationship with his great-grandfather or his great-aunt.

[ 95 ] On the other hand, E.D. did not wish to see Mr. and Mrs. G. before and after D.F.G.’s birth and she seeks, at present, to remove D.F.G. from this country (and therefore the G. grandparents); thus I find E.D. is quite willing to unilaterally sever her own relationship with the G. family as well as D.F.G.’s relationship with his grandparents. [ 96 ] Although E.D. complains that E.G.’s parents have not made sufficient overtures of support to her since the separation, I find that they have made overtures and E.D. has ignored them.

She has made no overtures of friendship of her own, although when E.D. asked them to babysit, they did so. It is quite evident that E.D. views herself as the “injured party” and the petulant manner in which she gave her testimony reflected that attitude. [ 97 ] With respect to E.D.’s assertion that she has no friends in Prince George to provide her with emotional support and comfort, I find that is unfortunate, but she is the author of her own misfortune. There is no geographic solution to that problem.

I find from the evidence presented that E.D. has not maintained any close friendships in Pueblo, Colorado, where she grew up, either. If E.D. has made no friends in Prince George in more than a decade of living here, there is no reason to believe she will be any better at making friends in an unfamiliar town in Washington State. [ 98 ] I find there are educational opportunities for E.D. to train as a veterinary technician in both Bellingham and Prince George.

I find that E.D. either knowingly or carelessly put forward inaccurate evidence regarding expense estimates for the cost of the Bellingham and TRU educational programs in an effort to create the misleading impression that education in Bellingham was less costly.

With respect to the TRU program she asserted that it would cost $11,000 and only later admitted that she had not looked into the cost at all because she “just wasn’t interested in that program.” With respect to the Bellingham program, E.D. relied on tuition estimates based upon tuition discounts for state residents to which, having never resided there, she is obviously not entitled. [ 99 ] I find that the TRU online program will permit E.D. to advance her education under the supervision of a veterinarian while remaining employed in the field.

I find that E.D. had explored this opportunity prior to the separation and obtained the agreement of Dr. (omitted), to be her supervisor. Clearly she was ready, willing, and able to undertake that form of upgrading at that time, despite her assertion at trial that she is not interested in that program. I find, therefore, that her lack of interest in that program at this time has nothing to do with the merits of the program itself. [ 100 ] I find that the TRU program is specifically designed for persons working in the field to upgrade their education while continuing to work.

Yet, E.D. asserted that she cannot upgrade herself if she remains in Prince George because she will have to work, despite the agreement of her boss to sponsor and supervise her in this very program. On the other hand, E.D. testified that she does plan to work while she upgrades her education - so long as she does it in Washington State. Clearly, if she can work and upgrade herself in one geographic location, she can do it in another.

I find E.D.’s evidence in this regard to be disingenuous. [ 101 ] I find that the salary expectations with respect to graduates of the Veterinary Technician Program in British Columbia are superior to those Washington State. I find that E.D.’s current salary in her current employment as a receptionist in Prince George is as good, or better, than she could expect in Washington State after completion of the Veterinary Technician Program after several years of school. [ 102 ] I find E.D.’s evidence that the cost of living is less in Washington State is purely speculative.

She has never lived in Washington State and has no basis to make that assertion. [ 103 ] With respect to standard of living, E.D. proposes that D.F.G. move into her mother’s boat, which she describes as “like a large camper.” She says D.F.G. would always wear a life jacket, so he would be safe.

While I recognize that people do take small children on boats, to my mind, the suggestion that it is in D.F.G.’s best interest that he be raised in a life jacket on a floating camper in a harbour as opposed to a home in Prince George is ludicrous. [ 104 ] E.D. says that if she lives in Bellingham, her mother will assist her to have a comfortable residence by purchasing a residence on land at some point in the future in which E.D., D.F.G. and K.E. could reside (when K.E. is not away sailing her yacht).

Indeed, E.D. is so confident that she will be able to have a comfortable home for D.F.G. with her mother’s assistance that she offers to forego spousal support altogether if she is permitted to relocate. In contrast, E.D. says she will never be able to have a comfortable residence in Prince George because she cannot afford one, even if provided with spousal support. [ 105 ] Again, I find there is no magic to geography. I find that E.D.’s testimony in this regard is manifestly disingenuous.

If E.D. plans to be entirely dependent on her mother’s generosity to provide housing for herself and D.F.G., her mother can just as easily assist her in that way in Prince George. K.E. chose to reside in Prince George for several months during the fall and winter of 2015/16 because her yacht required repair and she wanted to assist E.D. to prepare for D.F.G.’s birth. K.E. is now retired and her time is hers to do as she wishes, but there is nothing tying her to Bellingham but her boat.

If she wishes to spend her winters on land, she could easily purchase a residence in Prince George to assist E.D. and spend time here with E.D. to assist her as she has done in the past. [ 106 ] E.D. testified that she cannot upgrade her education in Prince George “any more than win the lottery” even if E.G. changes to straight night shift so he can provide day care for D.F.G., but on the other hand she asserted that she can upgrade her education, as well as work, if her mother provides day-care in Washington State.

Thus, E.D. would have the Court accept that childcare provided by her mother will enable her to upgrade her education and work, but childcare provided by E.G. will not.

Again, I find that E.D.’s evidence is disingenuous, to the point of absurdity. [ 107 ] I find that nothing, except E.D.’s attitude, prevents her from upgrading her education in order to become self-sufficient in Prince George and nothing about Bellingham, if E.D. were to relocate there, would provide any overall advantage with respect to improving E.D.’s self-sufficiency. [ 108 ] I therefore find that there are no advantages to E.D. (and therefore D.F.G.), whether measured in terms of availability or quality of housing, cost of education, quality of education or employment income upon completion of her education, by residing in Bellingham as opposed to Prince George.

[ 109 ] I find that E.D.’s desire to relocate, at the time she gave the Notice, was not motivated by a desire to upgrade her education to be a veterinary technician. I find that E.D. knew nothing about any programs of educational upgrading in Washington State when she gave notice to E.G. to relocate. I draw that inference from the fact that her Relocation Notice declared her intention to go to Blaine where there are no such educational programs.

I find that E.D.’s change of plans, to relocate to Bellingham instead, was the result of her mothers’ efforts to find an educational program for her to take in Washington State to provide ex post facto justification for the relocation. It was not the motivation for the relocation. [ 110 ] It is not surprising that E.D., as a new mother, wants her mother’s emotional and hands on support. However, E.D. moved to Prince George and lived here for 12 years, planned, conceived, and bore a child here without needing to have her mother present full time. Clearly, E.D. planned to make a life here.

E.D.’s mother made the time and effort to visit E.D. over the years and recently for an extended period and there is no reason she will be unable to do so again. She is now retired and her time is her own. If she has the money to assist E.D. by buying accommodation in Bellingham, a place where she has no ties whatsoever, there is no reason she cannot assist E.D. in the same way here.

I find relocation to Washington is not necessary to meet E.D.’s desire for her mother’s emotional support. [ 111 ] I find that, aside from her mother, E.D. has no supports in the way of family nor friends, nor indeed, any connections at all to Bellingham or anywhere else in Washington State. As a result, D.F.G. would have no such supports or connections there either. [ 112 ] It was submitted to me that E.D. was earning minimum wage, which is obviously an exaggeration: her last year’s income was substantially over minimum wage.

The submission was that living in Prince George would prevent her from ever earning anything more than minimum wage. I find that is similarly inaccurate - while in Prince George, E.D. had opportunities to earn a greater income than she was already earning after she took a medical terminology course, but she chose give up on that opportunity after a single phone call. She had the opportunity to earn substantially more as a medical transcriber, but after incurring a $5,000 debt to take the course, she decided she “didn’t really like it” and chose not to complete it.

The submission was that E.G. is crushing her financially, but I find that is untrue - she has made choices based on her preferences, not due to any pressure from him or his family. [ 113 ] I find that none of the reasons E.D. gives for relocating are genuine when subject to scrutiny. That leaves only an unspoken motive for relocating D.F.G. to another country. [ 114 ] I note that E.D. objected to E.G.’s proposal to refinance in order to pay her out of her interest in the family home and the parties’ line of credit, despite its obvious advantages to her because she objects to him remaining in the family home.

She testified that she did not want to live there, but she doesn’t want E.G. to live there either, even though the home is well set up for D.F.G. and located close to his grandparents and schools. Her objection, she says, is based upon “moral” grounds; that is, that E.G. should be removed from his home because his interest in a neighbour caused the marriage breakdown, and most notably, the neighbour is still there. That is a position based upon hurt feelings and a desire for punishment and revenge, not based upon the best interest of any party and certainly not on the best interest of D.F.G.

I find that this motivation is also the unspoken reason that E.D. seeks to relocate D.F.G. to the United States: to punish E.G. for his transgressions. [ 115 ] I acknowledge that E.D.’s hurt feelings are understandable; it would be extraordinarily rare to find a marital breakdown that did not involve hurt feelings on the part of one party or both. However, punishment of one party or another for marital breakdown is not the function of the Court, and certainly such considerations ought to form no

part in determining parenting arrangements. Section 37(4) of the FLA specifically prohibits consideration of a person’s conduct unless it affects the best interests of the child under s. 37(2) and in this case no one suggests that E.G.’s conduct has any effect on his parenting abilities nor any of the considerations listed in s. 37(2) of the FLA . Relocation Under S. 69 of the FLA [ 116 ] Insofar as her Application to relocate is founded on s. 69, E.D. must satisfy me that her Application is made in good faith under s. 69(4)(a)(i).

As a result of the foregoing findings, I find that I am not satisfied that E.D.’s Application to relocate D.F.G. to Bellingham is made in good faith. [ 117 ] Out of an abundance of caution, I also have considered the second leg of the test under s. 69(4)(a)(ii) which requires the relocating guardian to satisfy me that reasonable and workable proposals have been made to preserve the relationships of the child with the child’s other guardian, persons entitled to contact and other persons having a significant role in the child’s life. [ 118 ] I have considered the evidence of the parties regarding the proposals that E.D. has put forward should she be permitted to relocate D.F.G. to Bellingham, including that E.G. could move to Washington State to live and work; that he could move to the lower mainland to live and work; or, failing that, he can visit with D.F.G. at various times as he pleases and E.D. will take D.F.G. to visit him in Prince George for alternate two week periods in the summer and alternating weeks at Christmas and Easter. [ 119 ] I find that E.G. cannot move to Washington State because as a Canadian citizen he cannot simply move there and work there.

I find that E.G. has looked into the issue and I accept his evidence that the process for him to emigrate to the United States would be as difficult for him as it was for E.D. to immigrate to Canada. I note that E.D. remained unemployed in Canada for five years, she says due to her immigration status. During that time E.G. fully supported her. E.G. would have no such support, nor a sponsor in the United States.

I find that proposing that E.G. relocate to the United States is not a reasonable and workable proposal. [ 120 ] With respect to the proposal that E.G. relocate to the lower mainland of B.C., I find that although (omitted) had a job similar to E.G.’s available in Abbotsford, it is no longer available. In any event, I find that the parties both considered relocating to the lower mainland in the past and chose not to do so because it the cost of housing was just too high.

They could not afford to move to the lower mainland when they were an intact family; there is no reason to believe that they could afford to do so now that they must maintain separate households. I find the proposal to have E.G. relocate to the lower mainland in order to maintain his relationship with D.F.G. is not reasonable or workable. [ 121 ] The remaining proposal is that E.D. will bring D.F.G. to Prince George every two weeks in the summer, as well as alternating

weeks at Christmas and Easter and E.G. could come to Bellingham as much as he wanted. If E.D. is permitted to relocate D.F.G. to Bellingham, she will abandon her claim for spousal support because she will not need it as she will have her mother’s support. [ 122 ] I find that this final proposal will destroy the relationship currently E.G. has with D.F.G., which includes daily parenting time. D.F.G. is a baby. At his stage of development he will not be able to remember his father, much less his grandparents or extended family, if separated from them for months at a time.

Thus, they will be strangers to him by the time each visit comes around. I find that a proposal that involves repeatedly leaving a baby or very young child with people of whom he has no memory cannot be good for a child and is very likely harmful to a child.

I find this proposal is not reasonable or workable and will not preserve the relationship between D.F.G. and his father, grandparents and extended family. [ 123 ] I also note that such a proposal would prevent E.D. from gainful employment during the summer months or school vacations (it is reasonable to infer that few employers would permit an employee to be absent half the time throughout the summer months and school vacations) which would obviously impair her ability to be self-sufficient and to support D.F.G. I find that this aspect of the proposal is not reasonable or workable.

Best Interest of the Child, s. 37(2) [ 124 ] Even in the absence of good faith and/or reasonable proposals, that is, where the tests in s. 69 are not met, under CAP (supra) there is a residual obligation for me to consider whether the relocation might nevertheless be in the best interest of D.F.G. I find that it is not in his best interest for the reasons noted above as well as those that follow. [ 125 ] With respect to immediate health and safety arrangements under s. 37(2)(a), I find the proposal to raise a baby on a boat described as “a floating camper” is not in his best interest.

D.F.G. would have to be life jacketed and leashed or confined every moment of his existence.

I find that the likelihood that he would fall off the boat into the harbour, despite the most attentive care, is very high; in fact, in my view that is a tragedy waiting to happen. [ 126 ] D.F.G. is too young to be consulted as to his views under s. 37(2)(b). [ 127 ] With respect to s. 37(2)(c), the proposal to move to Washington State has the enormous drawback that it will disrupt the relationships D.F.G. has already formed with his father and extended family and may well prevent him from ever forming a close relationship with anyone other than his mother and grandmother.

As a young baby, D.F.G. may have no interest or recognition beyond those individuals he sees daily or weekly, but babies grow up and benefit from extended family and larger social circles. D.F.G. will benefit from such an extended family here in Prince George.

If E.D. were to develop friendships of her own, wherever she lives, that would also enhance the opportunity for D.F.G. to make friendships. [ 128 ] However, given E.D.’s apparent inability to maintain a single friendship in 12 years in Prince George, nor to maintain her childhood friendships from Colorado, I have serious doubts about her ability to expand her social circle beyond her mother in Bellingham (or elsewhere).

I find it is not in the interest of D.F.G.’s emotional well-being to confine his social circle to no one beyond his mother and grandmother in Bellingham, when in Prince George the baby will have the benefit not only of those two people (should K.E. chose to visit), but also his father, paternal grandparents and extended family. With respect, I do not see how E.D.’s emotional ties to her mother (such that she desires to live with her mother) should outweigh the emotional ties D.F.G. will form (if those ties are not severed by relocation) with his father and his extended family in Prince George.

I find that it is not in D.F.G.’s emotional and developmental best interest that he be relocated to Bellingham. [ 129 ] With respect to the history of D.F.G.’s care, under s. 37(2)(

d) and (f), as I found earlier in this decision, both E.D. and E.G. are competent and loving parents and they have managed to cooperate well with one another. Although E.D. spends more time with D.F.G. than his father does, that is due simply to D.F.G.’s age, breast feeding status, and the fact that E.D. has been on maternity leave, while E.G. has been working and providing support. Thus, the history of D.F.G.’s care is that both parents are fully involved in his care and I find that it is to his benefit to maintain that arrangement.

E.G. has offered to take on night shifts and to provide child care for D.F.G. during the day so that E.D. can upgrade her education and/or work opportunities, should D.F.G. remain in Prince George.

With this arrangement D.F.G. would have the benefit of maximum time with two loving parents, as well as extended family, which I find to be in his interest. [ 130 ] If D.F.G. were to relocate to Washington State, he would lose the benefit of a warm and loving relationship with his father as well as extended family and friends, which would enable D.F.G. to grow up with a lifestyle similar to his father’s, full of sporting and outdoor activities. E.G. has maintained friendships from his youth and they form a part of the social circle to which D.F.G. would belong.

By contrast, E.D. has not maintained friendships from her childhood and has no friends or family in Washington State, aside from her mother. She gave no evidence of involvement in any particular activities to which she could introduce D.F.G. [ 131 ] With respect to the ability of the parents to exercise their parental responsibilities with respect to D.F.G., under s. 37(2) (

e) and (

f) I am also concerned that the move to Washington State will not meet D.F.G.’s need for stability nor improve E.D.’s ability to earn an income that will provide D.F.G. with the economic advantages he would have if he remained in Prince George. E.D.’s relocation proposal is essentially that she will trade being dependent upon E.G. in Prince George for being dependent upon her mother in Bellingham.

She proposes to forego spousal support from E.G. “because she would not need it”. [ 132 ] Thus, it is clear that the stability of D.F.G.’s proposed living arrangement in Washington State depends entirely on the willingness and ability of her mother, a person who has no legal obligation to support her or D.F.G., to provide that support.

If something happened to K.E., or if she chose, quite understandably, NOT to forgo her lifelong dream of spending her retirement sailing the seas in favour of looking after her adult daughter and grandson, the foundation of that whole arrangement would crumble. [ 133 ] I also note that while E.D.’s relationship with K.E. is at present very close, so close that E.D. seeks to live with her, it cannot be forgotten that E.D. chose to leave her home and her mother in Colorado and move to another country 12 years ago. The closeness of their present relationship is recent and may well be temporary.

I find that the proposed relocation is not in D.F.G.’s best interest because it does not meet D.F.G.’s need for stability under s. 37(2)(e). Even if K.E. gave up her retirement dreams, I do not see how it is in

D.F.G.’s best interest to be raised by a single mother relying entirely on his retired grandmother in a community of strangers. [ 134 ] I now turn to s. 37(2)(f), the ability of each parent to exercise their parenting responsibilities. As I mentioned earlier, both E.G. and E.D. are competent and loving parents. It is one of the obligations of parents to support their child. E.G. has always worked to support his family - that is to meet his parental obligations - and continues to do so.

E.D.’s history of employment is less robust, but she has the opportunity to return to her employment at Dr. (omitted)’s veterinary office and to simultaneously upgrade her qualifications. Most mothers return to the workforce after their maternity benefits have ceased and there is nothing preventing E.D. from doing so.

Certainly, having the support of two working and self-supporting parents will be in D.F.G.’s financial best interest. [ 135 ] Although E.D. would be able to fulfil her obligation to support her son immediately in Prince George, as well as upgrade her education through the TRU program under Dr. (omitted)’s supervision, she would not be able to do so in Washington State for many years, if at all. Therefore, I find that E.D.’s ability to exercise her parental obligation to support D.F.G., and therefore D.F.G.’s financial security, is more likely to be met in Prince George than in Washington State.

As I have found earlier in this decision, there is no advantage to D.F.G. in relocating to Washington State. [ 136 ]

Section 37(

g) through (

j) all deal with considerations relevant to situations in which family violence has occurred. There is no such suggestion in this case. DECISION REGARDING RELOCATION [ 137 ] I find, for the reasons given above, that a relocation to Washington State is not in D.F.G.’s best interest. I have already considered the reasons given by E.D. for the move and have found that those reasons are not genuine. It follows from these findings that E.D.’s Application to relocate, if brought under s. 46 of the FLA , must also fail. [ 138 ] E.D.’s Application to relocate D.F.G. to Washington State is dismissed.

Guardianship [ 139 ] The parties are both guardians of D.F.G. by operation of s. 39(1) of the FLA . Parenting Responsibilities [ 140 ] The parties agree that if D.F.G. remains in Prince George, parenting responsibilities should be joint. I therefore order, under s. 40(2) of the FLA, that the parties will share equally all parental responsibilities for D.F.G. Parenting Time [ 141 ] At present E.D. has enjoyed the bulk of the parenting time with D.F.G. because she has been on maternity leave.

E.G. has been exercising daily parenting time with D.F.G., with extended periods on weekends with breaks to accommodate his breast feeding schedule. However, D.F.G. is now over one year old and E.D.’s maternity leave benefits have expired. Like other mothers, when she returns to work, and if she intends to continue breast feeding, E.D. will have to express milk or find other ways to accommodate that goal. (She had clearly planned to do s

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