K.E.L. v. N.L.P. Date:, 2015 BCPC 306

Citation: K.E.L. v. N.L.P. Date: 2015 BCPC 0306 File No: 1547584 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: K. E. L. APPLICANT AND: N. L. P. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. W. CALLAN Counsel for the Applicant: J. Reed Counsel for the Respondent: J. Whidden Place of Hearing: Prince George , B.C.

Date of Hearing: October 2, 2015 Date of Judgment: October 29, 2015 BACKGROUND [ 1 ] Mr. K. L. makes application to the court for an order preventing the relocation of his daughter, S. L. P., born [omitted for publication], from Terrace to Prince George. The litigants were in a relationship since 2002. In 2011, they moved in together in a trailer home they purchased. They separated in 2014. Since that time they have shared parenting time on a week on week off basis. [ 2 ] In June 2015 Mr. L. completed training with [omitted for publication] as an installer and repair technician. He is now gainfully employed.

He objects to the relocation of S. on the basis that the relocation is not being done in good faith and that it is not in the child’s best interest. [ 3 ] Ms. P. currently works for a vehicle dealership in Prince George. She explained that coming to Prince George has given her employment where she earns $3,500.00 per month with benefits bonuses and incentives. She has come to Prince George because of better opportunities. In addition, in February 2015, she is in a new relationship with a partner who lives in Prince George.

THE FAMILY LAW ACT [ 4 ] Before examining the factors brought in the evidence I will set out the necessary law on the subject of relocation. The Family Law Act in Division 6 considers the procedures that need to be followed if one parent wishes to relocate with the child, the legal criteria that has to be examined by the court before such an order can be granted. The Act states: 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. [ 5 ] In the case of M.K.A. v A.F.W. 2013 BCSC 1415 , Master Young wrote at paragraph 17: This family law act transition guide explains at page 3 – 100 that in the situation where the guardians do not have substantially equal parenting time, the moving Guardian has the majority of the time with the care of the child must show good-faith reasons for the move, and he/she must provide reasonable and workable parenting arrangements that will maintain the relationship between the child and the other Guardian.

If the court is satisfied that those two things are established then there is a presumption in favor of the move, unless the objecting Guardian satisfies the court that the move is not in the best interests of the child. [ 6 ] Master Young, who found the move was being made in good faith, based on “the respondent’s health and financial well-being of the family with whom the child primarily resides is in jeopardy if the existing situation continues.”, and: “[21] Next I am to consider whether the relocating guardian has proposed reasonable and workable arrangements to prevent 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. [23] The onus shifts to the claimant to satisfy me that the move is not in the best interests of the child having consideration for the factors below and I am instructing the transcriber to insert

section 37 of the family law act here. I will not read it out.” [ 7 ] Judge Morgan of this Court reached a similar conclusion about the procedures in S.B., v. N.L. , 2013 BCPC 233 : “[34] Given the above I find the proposed re location is made in good faith, and I am satisfied the mother will ensure the preservation of

the child’s relationships with her father and significant others. Consequently the onus shifts to the father to show that the relocation is not in the child’s best interests.” ISSUES [ 8 ] I find that Ms. N. P. and Mr. K. L. are the Guardians under s. 39 of the Family Law Act of the child S. L. P., born [omitted for publication]. [ 9 ] I find that Ms. P. has met the required procedures for giving notice to the other Guardian and that and Mr.

L. has filed his objection in a timely manner. [ 10 ] I find that both parties had equal parenting time and therefore fall under s. 69(5) of the Family Law Act . [ 11 ] I need to consider the following questions: 1. Is the intended relocation of the child being made in good faith? 2. Has Ms. P. proposed arrangements for parenting time for Mr. L. that are reasonable and workable? 3. If Ms. P. has demonstrated the relocation is made in good faith and the arrangements for parenting time for Mr. L. are reasonable and workable, has Mr.

L. shown to the Court that the move is not in the best interests of the child considering the factors in s. 37 of the Family Law Act . [ 12 ] Ms. P. testified that her reasons to relocate to Prince George are based on better economic opportunities. Ms. P. also testified as to her work history. She became dissatisfied as a daycare worker even though her education was in early childhood education. She began working at some of the automobile dealerships in Terrace, British Columbia.

She had worked at [omitted for publication] for a period of six months and then later moved to the [omitted for publication] dealership. She found, however, that there were not the salary and benefits she had hoped or room for advancement. [ 13 ] This led to her seeking employment with the [omitted for publication] dealership in Prince George. The work, the salary, and the benefits were to her liking. She also has some opportunities for advancement. Another factor is that she started a relationship with a person from Prince George online in about December 2014 which became more serious in February 2015. Ms.

P. testified in her examination in chief that one reason for relocation was to get away from Mr. L.’s controlling ways. [ 14 ] In September 2015 there was a Consent Order for interim parenting time for Mr. L. This Order was by consent. Having heard the Application of the Order I believed provisions of parenting time for Mr. L. were appropriate. Including make-up times due to illness, scheduling or weather. [ 15 ] It must be noted that the major difficulty when establishing the parenting time in this case is the weather and geography. Terrace is a good six hour drive from Prince George.

During the winter months from late October to mid- April, travel on Highway 16 can be difficult due to icy conditions and snowstorms. BEST INTERESTS OF THE CHILD [ 16 ] Mr. L. and his sister, A. L., testified that Mr. L. has an extended family in Terrace. Ms. L., who is an LPN, testified as to attending hospital with Ms. P. in the spring of 2013. She testified Ms. P. was sobbing uncontrollably, couldn’t breathe, and was shaking. [ 17 ] S. is at her house four to five days a week. S. is happy and loving child but internalizes problems. Ms.

L. spoke to S. about the move and told the Court that S. does not want to go to Prince George. Ms. L. described her brother as a good and loving dad. The trailer home where they live is well kept. Ms. L. said she felt blindsided by Ms. P.’s move to Prince George as she said a number of times she was not going to move. The stresses have been tough on S. [ 18 ] Ms. P. and her aunt, J. Y., gave evidence that there is extended family in Prince George. Ms. P. and the child will live in the basement suite of her uncle. Ms. P. can afford this with her current to have the current income.

Their evidence that S. was at first apprehensive about the move, but is now looking forward to coming to Prince George and playing with her cousins here as well as some children she has met in the neighbourhood. Ms. Y. stated that Ms. P.’s relationship with Mr. L. was not an easy one. Ms. P. also made much of the fact that Mr. L.’s mother had a grow op in a back room of her trailer. As far as the evidence is concerned, the child was never in the room where this occurred. The grow op is now gone. [ 19 ] Mr. L.’s employment is steady and the hours are flexible.

He has the assistance of his mother, sister, and grandmother to help take care of S., while he is working. Ms. P. has argued that the trailer in which Mr. L. lives in is not properly maintained and certainly has some maintenance issues. CONCLUSIONS [ 20 ] Ms. P. gave 60 days’ notice as required under s. 66 of the FLA . She placed the letter at the bottom of Mr. L.’s duffle bag before he went on training in Prince George for his [omitted for publication] job. It raises some doubt as to whether Ms. P. wanted to give meaningful notice as required under the FLA .

[ 21 ] Fortunately Mr. L. found the letter. His objection was not filed in the 30 days contemplated under s. 68. I find, however, that was because Ms. P. had indicated to Mr. L. and his sister, Ms. A. L., that she may not move to Prince George after all. Some of Ms. P.’s frustration in the process was that she wanted a separation agreement with Mr. L. before moving, but she felt he was avoiding the issue. [ 22 ] As the parties had agreed informally to a week on week off parenting schedule, Ms. P. must comply with s. 69 (5) of the Act . That is:

(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. [ 23 ] I am not sure if she has acted in good faith. First there is the manner in which she gave the notice to Mr. L. and secondly in her examination in chief she said one of the reasons for the intended moved to Prince George was to “get away from his [that is Mr. L.’s] controlling ways. I believe this is part of Ms. P.’s motivation to move S. to Prince George. Ms. L. said in her testimony that Ms. P. is always off and on again about what she is going to do. Ms. L. also said that she felt blindsided by Ms.

P.’s move to Prince George as she had said so many times. [ 24 ] In examining the best interests of S., I note evidence from Ms. P. and Ms. Y. that S. will have some family and friends in Prince George, as well as other activities. I am mindful however of Ms. P.’s past work history. After leaving her employment at a daycare because of a dispute with the owner, she obtained a job at the [omitted for publication] dealership. This lasts only six months before she moves on to another employer.

Her evidence is she had difficulties with management and her coworkers. [ 25 ] She then be begins working at [omitted for publication] in Terrace, but as I understand the evidence, she is then hospitalized in the psychiatric ward in what has been described in the evidence of Ms. L. as some kind of emotional breakdown. The disturbing thing of this breakdown were suggestions that Ms. P. had suicidal thoughts. [ 26 ] Ms. L. gives evidence that it took some six hours on the medical staff to assess her condition as she was constantly sobbing, couldn’t breathe and was shaking uncontrollably. I would note Ms.

L. has known Ms. P. since they were both 13 years old and in Grade 8. It was Ms. L. and her mother who stepped into the breach to take care of S. while her mom was in the hospital and her dad was at work. [ 27 ] The last factor I have to consider is that S. has told her father and her aunt that she does not want to move to Prince George. I conclude from Ms. L.’s evidence that she is particularly close to S. They are together four to five days a week and S. plays with Ms. L.’s child. [ 28 ] Both Mr. L. and Ms. P. are good parents to S.

She seems to be a very active child with family and both Terrace and in Prince George. [ 29 ] Section 37(2) of the Act sets the criteria of what is in the best interests of the child .

The relevant criteria set out in s. 37 for consideration in this case are: (1) in making an agreement or order under this part respecting guardianship, parenting arrangements, or contact with the child the parties and the court must consider the best interests of the child only. (2) to determine what is in the best interests of the child, all the child’s needs and circumstances must be considered including the following: a. the child 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 and development; f. the ability of each person who is 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; [ 30 ] I have concerns about Ms.

P.’s health and employment stability because it affects S.’s best interest. [ 31 ] For that reason as well as some of the questionable aspects of the good faith of the move, I grant Mr. L.’s application and order that S. remain in Terrace.

R. W. Callan Provincial Court Judge Province of British Columbia