A.E.E.B. v. N.J.V., 2018 BCPC 112

Citation: A.E.E.B. v. N.J.V. 2018 BCPC 112 Date: 20180510 File No: 16102 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A. E. E. B. APPLICANT AND: N. J. V. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Appearing in person: A. E. E. B. Counsel for the Respondent: H. A. Lucky Place of Hearing: Abbotsford , B.C. Dates of Hearing: January 10, March 16, 2018 Date of Judgment: May 10, 2018 Introduction

Introduction [ 1 ] The Applicant A.E.E.B. and the Respondent N.J.V. are the parents of a little boy named C., who was born on [omitted for publication]. The Applicant and Respondent met in June of 2012 and began living together shortly after they met. They separated in 2014 and have had a shared parenting arrangement ever since. [ 2 ] Up until recently, the Applicant lived in Abbotsford. The Respondent also lives in Abbotsford. In July of 2016 the Applicant met her current husband, who has a home in West Kelowna. The Applicant now wants to move to West Kelowna to live with her husband and wants C. to live there with them. The Applicant has given the Respondent proper notice under

section 66 of the Family Law Act (the “FLA”) of her desire to move the child to West Kelowna, in time for the start of the next school year. The Respondent is opposed to this move taking place. He wants C. to go to school in Abbotsford. [ 3 ] A hearing of this application was held on January 10 and March 16 of this year and a decision on the application was reserved. These are always difficult decisions for a judge to make. Both of the parties are very important in C.’s life.

No matter the outcome of this application, C.’s life will be impacted significantly and his relationship with the two most important people in his life will change. Master Keighley of the Supreme Court of British Columbia explained in his reasons for judgement in L.L.J. v. E.J. 2013 BCSC 1283 at paragraph 18 , why applications of this nature are never easy to decide, when he wrote: “For good reason, the prospect of a relocation application invokes something akin to dread in some members of the court. Almost inevitably, someone's heart is broken no matter what the outcome of the application.

If the party seeking to relocate is denied permission, plans are shelved, opportunities are lost and the overall welfare of the family, beyond considerations strictly concerned with the best interests of the child, is compromised. If the application is allowed, the party left behind struggles to maintain a relationship with the child often at considerable distance and expense, frequently in circumstances of modest means.” [ 4 ] This is the case here. Both of these parents are good people who love their son very much, but who have differing perspectives on what is best for him.

These reasons for judgement set out a

summary of the law that must be applied to an application of this nature, a

summary of the evidence presented at the hearing, and the reasons for making the order ruling on this application. Application for Adjournment [ 5 ] At the commencement of this hearing, the Applicant asked for an adjournment of the trial of this matter in order to obtain counsel. This application was opposed by Counsel for the Respondent for several reasons. He noted that this trial had been adjourned on two previous occasions, but that the Applicant had still not retained counsel despite previously indicating that she was making those efforts.

He was concerned about the increased costs to his client because of the numerous adjournment requests, noting that his client had to pay for preparation for trial on each occasion. He also noted that a decision on this issue should not be postponed, in order that the child could be properly registered for school in September of 2018 and that further delays and uncertainty were not in the child’s best interests. [ 6 ] A review of the record of proceedings disclosed that these proceedings commenced by way of an Application filed on August 10, 2016. An interim order was made on August 30, 2016.

The matter was adjourned on September 20, 2016, with the notation on the record that the Applicant was attempting to get counsel. A report under

section 211 of the FLA was ordered on October 4, 2016, and trial was scheduled for March 22, 2017. That trial was adjourned on February 7, 2017. The trial was re-scheduled for November 24, 2017, but on October 31, 2017 that trial was adjourned at the request of the Applicant, though with the consent of the Respondent. This trial was rescheduled for January 10, 2018, at which time I denied the Applicant’s request to adjourn the trial again. [ 7 ] The trial did not conclude on January 10, 2018 and was adjourned for continuation on March 16, 2018.

Summary of the Law [ 8 ] The law which applies to applications for relocation of the residence of a child or children is set out in Division 6 of

Part 4 of the FLA . “Relocation” of a child or children is defined in

section 65 of the FLA as being “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” the child’s guardian or with “one or more other persons having a significant role in the child’s life.” [ 9 ] The primary residence of this child is now in Abbotsford, BC. The Applicant wants to change the child’s residence to West Kelowna, which is about 318 kilometres from Abbotsford.

This is certainly something that would reasonably be expected to have a significant impact on the child’s relationship with the Respondent. Such a move would make it more difficult and more expensive for the Respondent to see the child because of the increased geographic distance between them. There is no question that the proposed move would fall within the definition of “relocation” within the meaning of

section 65 of the FLA . [ 10 ]

Section 66 of the FLA requires that the guardian who intends to change the residence of the child must give notice to all other guardians and persons having contact with the child at least 60 days in advance of the proposed move. The notice must contain the date of the proposed relocation and must set out where it is proposed that the child will move to. (The notice can be dispensed with on application to the court on appropriate grounds.) In this case the Respondent does not dispute that the Applicant has given him the notice required by

section 66, in the form of a letter which was delivered to him in August of 2016. [ 11 ] Once notice has been given,

section 67 of the FLA requires that the parties attempt to resolve any issues arising from the proposed relocation. Here I am told that the parties have unsuccessfully attempted to resolve this issue. [ 12 ] Under section 69 (2) of the FLA , the proposed relocation can either be permitted or prohibited. The FLA distinguishes between situations in which the parents have and do not have “substantially equal parenting time with the child.” Whether or not this is the case in a given situation is a question of fact, but in this case it is clear that the parties have substantially equal parenting time with the child.

In such a case, section 69 (5) requires the relocating guardian (the Applicant in this case) to satisfy this 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 (in this case the Applicant), persons who are entitled to contact with the child, and other persons who has a significant role in the child’s life. [ 13 ] The court must also be satisfied that the relocation is in the best interests of the child. [ 14 ] Under section 69 (6) of the FLA , the court must consider the following factors in deciding whether or not a relocation is being made in good faith: 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 of the relocating guardian, including increasing emotional well-being or financial or educational opportunities; c. whether notice was given under

section 66; d. any restrictions on relocation contained in a written agreement or an order. [ 15 ] Justice Betton of the British Columbia Supreme Court, in L.J.R. v. S.W.R. 2013 BCSC 1344 , held, at paragraphs [71] and [72] of the reasons for judgement in that case, that positive or negative findings in respect of each of these considerations suggest an inference that the relocating guardian either is or isn’t acting in good faith.

He also held that the four considerations listed in section 69 (6) are not an exhaustive list of what can be taken into consideration in determining whether or not the relocating guardian is acting in good faith. [ 16 ] Even if a proposed relocation is found to be in good faith, section 69 (5) (

b) of the FLA requires that the court must still consider whether or not the proposed move is in the best interests of the child.

In deciding questions of whether or not something is in a child’s best interests, section 37 (2) of the FLA requires that “all of a child’s needs and circumstances must be considered, including the following”: a. the child's health and emotional well-being; b. the child's views, unless it would be inappropriate to consider them; c. the nature and strength of the relationships between the child and significant persons in the child's life; d. the history of the child's care; e. the child's need for stability, given the child's age and stage of development; f. the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; g. the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; h. whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; i. the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; j. any civil or criminal proceeding relevant to the child's safety, security or well-being. [ 17 ] It is this law which must be applied to this case in deciding whether or not to permit the relocation of this child to West Kelowna.

Summary of Evidence [ 18 ] The Applicant and the Respondent met in Westbank, BC in 2012. At the time the Applicant had lived there for a dozen years and the Respondent was living in Fort Langley and working as a long-haul truck driver. He was living with his parents. The parties entered into a relationship very quickly. The Applicant testified that they met on June 16, 2012 and three days later they were living together. The Respondent recalls that it was about two weeks before they began living together, but either way, the relationship progressed from dating to living together very quickly.

They lived briefly in Fort Langley before moving to Abbotsford. [ 19 ] C. was born in March of 2013 and according to the Applicant their roles in the home were such that the Respondent continued in his job while the Applicant stayed home and cared for C. The Respondent worked (and continues to work) for his parents, who operate a moving company. [ 20 ] The couple separated shortly after C.’s first birthday. At the time the Applicant’s mother was living in the same building as the parties. When they separated, the Respondent remained in the family home and the Applicant moved in with her mother.

With the two separated, but living in the same building, they were both able to see C. frequently. [ 21 ] When the parties separated, they did not have a formal parenting schedule, in the sense that there was no court order or

separation agreement setting out the parenting schedule. The Respondent testified that they operated on a “three days on, three days off”

schedule for quite a while. On July 2, 2014, they entered into a formal written agreement that was prepared with the assistance of a family friend. The agreement recognized that up to that point in time they had shared their parenting time equally. The agreement did not set out a fixed parenting time schedule, but only provided that there would be “reasonable and generous access as agreed upon by both parties. [ 22 ] The Applicant recalls that when she moved into another apartment, the Respondent would not let her take the child’s things to her new apartment.

She recalls that there was an attempt at reconciliation, but it did not go well. When the Applicant entered into a new relationship, she recalls that the Respondent became more hostile towards her. [ 23 ] The Respondent testified that the “three on, three off”

schedule changed to a “week on, week off” schedule. The Respondent works in the family business, a moving company, and this allows him considerable flexibility to adjust his hours or work to accommodate the needs of his son. The Respondent’s father will be retiring in the near future and the Respondent expects that he will be taking a more active role in the management of the company. [ 24 ] The Respondent would like C. to remain living in Abbotsford and attend a local elementary school in the fall. He describes his son as very healthy and very intelligent, with a good vocabulary.

He is an active child and likes swimming and skating. [ 25 ] The Respondent has entered into a new relationship, but is not living with his girlfriend. She has a young son. The Respondent testified that he is not rushing into moving in with his girlfriend and they are taking it slow. The Respondent is voluntarily taking parenting classes because he wants to be a better parent. He testified that he would like to have C. see a counsellor for the child’s anxiety.

He said that he has asked the Applicant about this, but she has not agreed to this. [ 26 ] The Respondent lives in a two bedroom condominium that has a laundry room and a den. C. has his own bedroom in the home. This is the same home that the parties lived in after moving from his parents’ home, and it is the home that the child has lived in for most of his life. [ 27 ] C. has a strong relationship with his paternal grandparents. Following the parties’ separation, the paternal grandmother cared for the child quite often, and now the child visits his paternal grandparents frequently on weekends.

The Respondent has an older sister and a younger brother who live at his parents’ home. His older sister is unable to live independently because of a disability, and his younger foster brother is a teenager. He has another sister who does not live with her parents. She is married and has an infant daughter. There is also an extended family comprised of aunts and uncles. The Respondent’s father has nine siblings and his mother has three siblings who are local. The Respondent testified that C. sees his cousins frequently. [ 28 ] The Respondent’s mother is 52 years of age.

The Respondent is her adopted child and she has raised him since he was 2 years old. She and her husband live in Fort Langley and have a house with a big yard. She is the dispatcher for the family’s moving company. The company provides mostly local moving services with 90% of their work being done in the lower mainland of BC. She is also a level three foster parent. Her fourteen year old foster son is known as “Uncle” to C. and the two of them have a good relationship.

When C. comes to their home, he plays on the trampoline, plays games, reads, and has a lot of other activities that do not involve watching television. C. also plays hockey with his grandfather. The Respondent’s mother testified that “C. is very very dear to me” and she looked after him very often when his parents were working. She describes C. as a “funny, fun-loving and compassionate” child who doesn’t like to see other people sad.

She testified that C. has complained to her about his long drives to and from Kelowna. [ 29 ] The Respondent’s mother has a sister and a brother in Chilliwack and another sister in Langley, and two of these siblings have children of high school age or older. The family gets together for Christmas and other holidays. The relationship that the Respondent’s mother has with the Applicant’s mother is not good.

The Respondent’s mother describes the Applicant’s mother as “cold to me.” She speaks highly of the Applicant, describing her as a “good mom.” The Applicant chose not to call her mother as a witness at the hearing of this application. [ 30 ] The Respondent testified that he first learned of the Applicant’s intention to move to West Kelowna in August of 2016. She wrote him a letter telling him that she wanted to move and setting out her reasons for wanting to do so.

He mentioned a previous move that the Applicant had made to Alberta because her mother had moved there very briefly, but her mother has moved back to Abbotsford again. In the letter the Applicant informed him that she had just gotten married and that the couple had a home in West Kelowna. [ 31 ] The Respondent is concerned that the child does not like the weekly drives he now takes to go to West Kelowna with the Applicant.

He says that the child has expressed his displeasure about this, though he concedes that sometimes C. is excited about going to Kelowna. [ 32 ] The Applicant’s father resides in the Kelowna area.

He has just completed serving a ten-year sentence in a federal prison and doesn’t know C., but the Applicant would like the two of them to develop a relationship. [ 33 ] If the proposed move by the Applicant is not permitted, the Respondent proposes that she continue to have generous parenting time with C., including alternating fourteen day periods during the summer, and having the child spend spring break with his mother. [ 34 ] The Applicant met her current husband in 2010, before she met the Respondent.

They began seeing one another as a couple in 2016 and were married in July of that year in a small, quiet ceremony. The Applicant gave birth to another son on June 19, 2017. In her new relationship she is once again a “stay-at-home mom”. The couple live in a house in West Kelowna where C. has his own room.

Her 13 year old nephew also lives in the house and there are some cousins who live across the street. [ 35 ] The Applicant proposes that if C. is able to live with her and attend school in West Kelowna, the Respondent can have generous parenting time in the summer, over the child’s spring break, long weekends and those with professional development days. [ 36 ] The Applicant is married to C.B. He is 36 years old and lives in West Kelowna. He had worked in the lower mainland at one time, but his current employment offers higher pay, better benefits and more security.

He testified that he has a good relationship with C.

His employer offers him some opportunity for relocation, but not to Abbotsford. The nearest alternate place for him to work would be in Nanaimo and he testified that he would likely take employment there if the Applicant was not allowed to move C. to West Kelowna. [ 37 ] On June 20, 2017, Family Justice Counsellor Jill Adamson provided a report under

Section 211 of the Family Law Act in order to allow C.’s voice to be heard on this matter. Her assessment of the parties matches that which came out in the evidence at the trial of this matter. The report shows both parties to be capable parents and persons who are very important in C.’s life. Ms. Adamson writes in her report: “Both parents reported they believe the other to be a positive influence on C., and I observed C. to be an outgoing and affectionate boy who is obviously well-loved and cared for by both his mom and dad and is clearly attached to both.

C. is also surrounded and cared for by extended family on both sides. Both parents have taken independent steps to assist C. with transitioning back and forth between them and he appears to be comfortable with the shared parenting arrangement that has developed.” [ 38 ] The report writer notes that while the move to Kelowna has significant and obvious benefits for the Applicant, this is not necessarily the case for the child.

The report states: “Although the move to West Kelowna would have positive benefits for [the Applicant] which would likely pass on to C., it also provides significant challenges to C., most notably travel between the Lower Mainland and West Kelowna and distance between him and his dad, as well as his paternal extended family.

A.E.E.B. describes the trip from the Lower Mainland to the Okanagan optimistically, but to maintain the current shared parenting schedule, C. will be travelling approximately seven to eight hours every two weeks over the Coquihalla Highway with the very real possibility of the trip becoming less pleasant with a newborn on board. The highway is also well- known to have changeable weather conditions throughout the year.” [ 39 ] The report writer corroborated the observations of the paternal grandmother about C.’s frustration and dislike of the long drives.

She notes that once the child begins school, the travel requirements of this shared parenting arrangement will impair C.’s participation in extra-curricular activities and his formation of friendships with peers. Without concluding that one parent is preferable to the other, Ms. Adamson reaches the same conclusion that I do, that it would be best for C. if he could have both parents in his life, in close proximity, without all of the travel that the Applicant’s move will introduce into his life.

Analysis [ 40 ] As set out earlier in these reasons, applications for relocation of the residence of a child are governed by the law as set out in Division 6 of

Part 4 of the FLA . “Relocation” of a child or children is defined in

section 65 of the FLA as being “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” the child’s guardian or with “one or more other persons having a significant role in the child’s life.” There is no doubt that the change of the child’s residence as proposed by the Applicant amounts to a relocation. It is also not in issue that the Applicant has given the Respondent proper notice of her proposed relocation as required by

section 66 of the FLA . The parties have unsuccessfully attempted to resolve this issue as required by the FLA . [ 41 ] This is a situation where these parents have “substantially equal parenting time with the child.” In such a case, section 69 (5) requires the Applicant to satisfy this court of several things. Firstly, she must establish that the proposed relocation is made in good faith. [ 42 ] Under section 69 (6) of the FLA , the court must consider the following factors in deciding whether or not a relocation is being made in good faith: (

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 of the relocating guardian, including increasing emotional well-being or financial or educational opportunities; (

c) whether notice was given under

section 66 [which has occurred in this case]; and (

d) any restrictions on relocation contained in a written agreement or an order [which does not apply in this case]. [ 43 ] The evidence satisfies me that the Applicant has proposed the move in good faith and not out of any malicious, mean-spirited or capricious motives. The reason for the move is because of her new relationship and she cannot be faulted for the fact that her new family is better situated in West Kelowna, where the family income will be greatest and where her new family has a wider support network.

Nothing in the evidence suggests that the move is motivated out of any desire to spite the Respondent or to injure his relationship with the child.

But despite the fact that the move is not motivated out of malice, the move will likely have an adverse effect on the child’s well-being because of the physical separation for longer periods of time from the Respondent and from his side of the family, one for which the child has developed a very strong attachment. [ 44 ] Next, the Applicant must show that she has proposed reasonable and workable arrangements to preserve the relationship between the child and the Applicant, as well as the other family members who have a significant role in the children’s life.

This presents a problem because of the geographical distance, the problems involved in travel, the fact that the child will be required to attend school in one location during the week during the school year, and because the child has such a strong attachment to both parents such that the move will impose a drastic change to the ties that he currently has with each of his parents. Her proposed parenting time

schedule is as good as it can get, given the presence of these factors, but it is not clear that it is it one that is in C.’s best interests. [ 45 ] The court must also be satisfied that the relocation is in the best interests of the child. In deciding questions of whether or not something is in a child’s best interests, section 37 (2) of the FLA requires that “all of a child’s needs and circumstances must be considered, including those enumerated in the section. It is here that it is most difficult to reconcile the proposed move with the best interests of this child.

It is likely that the imposition of a significant change from the life that the child has known up to now, and the prolonged separation from the Respondent and the Respondent’s family would cause the child discomfort, sadness and distress. The parenting relationship would go from an equal and balanced one, turning the Respondent into a part-time parent.

Even with an increase in the Respondent’s parenting time on weekends and holidays, this would still diminish the level of attachment that the child and the Respondent now have, and it would subject the child to greater travel in all sorts of weather conditions. [ 46 ] The proposed change is not in accordance with the child's views. He would like to have the same equal relationship with both parents that he now enjoys. The nature and strength of the relationships between the child and those significant persons on the

Respondent’s side would decrease and this would be a loss to the child. The proposed move is also inconsistent with the history of the child's care. It introduces a drastic change in the family life he has known. [ 47 ] It is difficult to say whether C. is of an age where his need for stability would be harmed by the proposed move, though the Family Justice Counsellor’s report has recognized the difficulty that increased travel would introduce into his life. The evidence satisfies me that both the Applicant and the Respondent are each capable guardians.

Both love C. very much and both are very important in his life, equally so. On that basis, it is difficult to conclude that the proposed move, which would upset the balance that now exists in C.’s life, would be in the child’s best interest. [ 48 ] On a consideration of all of these factors, I am not satisfied that a relocation to West Kelowna would be in C.’s best interests. What is in his best interests is the maintenance of the equal parenting regime that now exists. Acknowledgement of that unfortunately leaves the Applicant with a difficult choice.

It will be challenging for her to have her new family life, while keeping the close bond that C. now has with both of his parents. [ 49 ] The answer to that problem is not solved by moving C. to West Kelowna. This difficult issue has to be confronted by the adults who brought about the situation. It should not be placed on the shoulders of a five year old child. If there is any inconvenience which comes from that decision, it should rest with the adult creating the change and not the child.

Order [ 50 ] For these reasons, the following order is made: Upon the Court being advised that the name and birth date of the child is C., [omitted for publication]. The Court is satisfied that the Applicant A.E.E.B. and the Respondent N. J. V. are the guardians of the child under section 39(1) of the Family Law Act ( FLA ). Under s. 40(2) of the FLA the guardians will share equally all parental responsibilities for the child.

Under s. 49 of the FLA , if the guardians cannot agree on a parental responsibility, the Respondent shall make the decision and the Applicant may apply for a review of that decision under s. 49. The application brought by the Applicant to relocate the residence of the child to West Kelowna is denied, pursuant to section 69 (2) of the Family Law Act. Neither party shall change the residence of the child to a location outside of the City of Abbotsford, BC, without the written consent of the other parent or an order of this Court.

While the Applicant is residing in Abbotsford, BC, the guardians will share parenting time equally as agreed between them. If the Applicant changes her residence to West Kelowna, BC, or to any other location more than 80 kilometers from the child’s current residence, the Applicant will have reasonable parenting time with the child on such days and times agreed between the guardians. Dated at the City of Abbotsford, in the Province of British Columbia, this 10 th day of May, 2018. ___________________________________________________ (The Honourable Judge K. D. Skilnick)