A.C.G. v. G.S.G., 2014 BCSC 2354

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: A.C.G. v. G.S.G., 2014 BCSC 2354 Date: 20141211 Docket: 16193 Registry: Smithers Between: A.C.G. Claimant And G.S.G. Respondent Before: The Honourable Mr. Justice Abrioux Reasons for Judgment Counsel for Claimant/Applicant: T.E. Hudson Counsel for Respondent: G.E. Greene Place and Date of Hearing: Smithers, B.C. December 1 & 2, 2014 Place and Date of Judgment: Smithers, B.C. December 11, 2014 Table of Contents I: INTRODUCTION .. 3 II: BACKGROUND .. 4 III: THE APPLICABLE PRINCIPLES .. 9 IV: THE PARTIES’ POSITIONS .. 11 V: DISCUSSION .. 12 A: Suitability for

Summary Trial 12 B: Is Relocation in the Best Interests of the Children? . 14 VI: CONCLUSIONS .. 18 I: INTRODUCTION [ 1 ] This is a

summary trial proceeding in which the applicant, Ms. G., applies to vary a final consent order made at a judicial case conference on June 10, 2013 (the “Order”), pursuant to section 17(5) of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.). [ 2 ] The Order provided that the parties share joint custody and guardianship of the children of the marriage, R.G., born May 3, 2006, and W.G., born May 1, 2009, with the primary residence of the children to be with the applicant. [ 3 ] Ms. G., who currently resides in Smithers, BC, wishes to relocate to Elliot Lake, Ontario where she was born and where her parents reside.

It is her intention to retrain from her current position as an engineering technician in order to become a personal support worker.

[ 4 ] The basis for the proposed relocation is Ms. G.’s belief that her employment prospects and improved personal circumstances, which will include support from her parents, will be best for both her and the children. [ 5 ] The applicant filed her notice of application on August 11, 2014. The respondent, who now lives in Quesnel, BC and opposes the relocation, filed a notice of application on August 13, 2014 in which he sought an order, inter alia , that the applicant not move to Ontario with the children until further order of the court or written agreement between the parties. [ 6 ] On August 20, 2014, Mr.

Justice Affleck ordered that the parties’ respective applications be adjourned on the basis that a

summary trial take place at the earliest possible date and that “the

summary trial is subject to the discretion of the [chambers] judge hearing the

summary trial to order a full trial of these issues”. He also ordered that the applicant be prohibited from removing the children from British Columbia until further order of the court or written agreement between the parties. Orders were also made with respect to filing pleadings and limiting cross-examination on affidavits subject to the discretion of the chambers judge hearing the

summary trial. [ 7 ] Since the respondent’s application sought interim relief, only the applicant’s application is before me. [ 8 ] The respondent’s position is that the application should be dismissed. In the alternative, he submits that it is not suitable for disposition pursuant to the

summary trial provisions of the BC Supreme Court Civil Rules . In the further alternative, he submits that if the applicant pursues her intention to relocate to Ontario then the children’s primary residence should be with him. [ 9 ] For the reasons that follow, the application is granted. II: BACKGROUND [ 10 ] The parties began to cohabit in January 1998. They married on September 19, 1998 and separated on October 20, 2011. [ 11 ] At the time of separation, the G. family resided in Telkwa, BC which is a short distance from Smithers. The applicant worked for the Village of Telkwa (the “Village”) at the time.

The respondent was employed as a forester based out of the Bulkley Valley. He spent a considerable amount of his time in the woods doing fieldwork. [ 12 ] After the separation, the applicant left her employment with the Village and obtained employment with the engineering firm, McElhanney Consulting (“McElhanney”), at its office in Smithers. This position advertised a better income and guaranteed full-time hours and benefits.

The office where the applicant worked also permitted her to take the children to and from school. [ 13 ] The applicant accepted the position at McElhanney on the basis that she would be employed full-time. This has turned out not to be the case. In fact, the position is seasonal with the applicant being off work from January through April. This would be the applicant’s work status indefinitely were she to continue to be employed with McElhanney. [ 14 ] There were also financial consequences to this employment.

During the period of unemployment, the applicant receives employment insurance benefits of approximately 50% of her normal $2,600 per month income. She also receives $1,000 per month in child support from the respondent. The applicant’s employment income and child support is not sufficient to provide for her and the children’s needs on an ongoing basis. [ 15 ] In June 2013, the respondent obtained new employment with Tolko Industries in Quesnel which is approximately a six-hour drive from Smithers.

He accepted this position in part since it involved a move to a regular management position with a larger company and assisted his professional progress in his career as a forester. He moved to Quesnel in June of that year. [ 16 ] Since June 2013, the respondent’s access or parenting time amounts to 50% of the summer, Christmas and Easter vacations and one long weekend per month that coincides either with statutory holidays or school professional development days. [ 17 ] Ms. G. has no family support in the Smithers area. Her parents live in Elliot Lake, Ontario where the applicant was born and raised.

She has a sister and brother who live in Cambridge and Oakville, Ontario, respectively, with their families. [ 18 ] On November 23, 2013, McElhanney advised the applicant that she would be subject to a temporary layoff, commencing immediately due to work shortage. It was anticipated this layoff would last 13 weeks. [ 19 ] When the applicant learned that her position at McElhanney was seasonal, she began to look for alternative work. Returning to the Village was not possible since the position had been filled.

She is now in the position to either accept seasonal employment or relocate. [ 20 ] The applicant commenced considering her options. This included upgrading her education. She testified that providing personal care to individuals, particularly seniors is something she has been interested in pursuing for many years. Her research has also led her to believe that with a personal support worker diploma she would be able to obtain full-time employment providing care for the elderly and terminally-ill.

She believes that she would be able to secure permanent employment in this capacity in Elliot Lake for the duration of her working career. [ 21 ] The program is offered at Cambrian College in Ontario, which has a facility in Elliot Lake that offers the diploma in question. Ms. G.’s parents have offered that she and the children reside with them until she locates a home of her own. They have also offered to take care of the children while the applicant is at college. [ 22 ] The program is one year in duration. Ms.

G. has been accepted into the program and has the funds to provide for herself and the children while she is at college. This will include using savings which she has accumulated.

[ 23 ] Although the applicant has friends in Smithers, she has no one who can help her on a regular basis with childcare or when the children are sick. She would have this support in Elliot Lake since both her parents are retired. Her mother was employed as a teacher in Elliot Lake for many years. [ 24 ] The applicant’s evidence is that housing costs in Elliot Lake are extremely reasonable. It is also a retirement community, the primary focus of employment being to serving the elderly. [ 25 ] The children attend a private Catholic school in Smithers.

When working, the applicant has to pay for afterschool childcare. [ 26 ] The applicant has calculated that moving to Elliot Lake would provide annual savings of approximately $8,000 to her, together with a reduced mortgage. While the respondent pays $1,000 per month in child support, he does not contribute to the school expenses. If the applicant and the children were to relocate to Elliot Lake, the children would attend the same Catholic school where the applicant was a student.

No fees would have to be paid since the Ontario Government publicly funds Catholic schools in that province. [ 27 ] There is a court order in effect that limits the direct contact between the parties. They communicate through emails and text messages. This arose out of an incident that resulted in the respondent pleading guilty to assaulting the applicant. The incident occurred shortly after the separation. The respondent received a conditional discharge that became absolute upon his satisfying certain conditions.

The respondent has expressed sincere remorse for the incident and there have been no further occurrences of improper conduct. A protection order made in provincial court following the incident remains in place notwithstanding the respondent’s request to have it terminated.

The applicant testified that the existence of this order generally makes her feel more secure. [ 28 ] It is apparent from the evidence that communication between the parties remains strained although there has been some modest improvement over time. [ 29 ] The applicant communicated her intention to relocate to Ontario with the children to the respondent by emails on July 18 and 24, 2014. She had resumed working at McElhanney as of the spring 2014. She resigned her position shortly after advising the respondent of her intention to relocate. She also immediately listed her home for sale.

A contract of purchase and sale was entered into on July 29, 2014 with the transaction to complete in mid-September. [ 30 ] It was the applicant’s evidence that she did not consult with the respondent regarding her intention to relocate with the children to Ontario before making the decision to do so because she did not believe he would object. She stated that, although the Order provided for joint custody and guardianship, the respondent had moved to Quesnel to further his career interests in June 2013 without having consulted her.

This increased her parenting time with the children to the point that she was solely responsible for them except when they were in Quesnel with their father or the occasional time when he would drive to Smithers to see them. [ 31 ] On July 30, 2014, the respondent replied to the applicant’s emails by letter which provided formal notice that he did not agree to the relocation or the applicant’s proposal regarding ongoing visitation opportunities with the children.

He advised that he was more than willing and capable to have the children in his long-term care at least until the applicant had completed her contemplated career change. He inquired as to whether she was interested in a change of custody to him. [ 32 ] The applications to which I referred above were then brought, resulting in Mr.

Justice Affleck’s orders. [ 33 ] The applicant’s proposal with respect to the respondent’s access to the children should she relocate to Elliot Lake is set out at paragraph 26 of her affidavit #2 dated August 9, 2014: In my emails I proposed that his access to the children could be accommodated as follows: a. I would personally bring the children to visit him for: i. Half of each Christmas break - I said I would pay for this as the expense will be offset by my not having to pay for daycare and private school tuition. This will mean that until the children turn 7, B. is presently 5.

I will have to fly with them each time as they cannot travel without a parent until they are 7. At 7 I can pay for a person to accompany the children who then would deliver them to Mr. G. upon landing; ii. Half of each Summer break - moving to one month at a time - again I said I would pay for this as the expense will be offset by my not having to pay for daycare and private school tuition; and, iii. Spring break each year as long as I can make arrangements to get them to him, or alternatively he could make arrangements to get them. iv.

I further invited that anytime he wanted to see the kids outside this proposed time I could bring them to Toronto, as Mr. G. is in Quesnel, which is an hour from Prince George, and Prince George has direct flights to Toronto. v. I further proposed he could have telephone contact, and that I would get the children an IPad so he could [F]acetime them whenever he wished. [ 34 ] The respondent’s proposal is that if the applicant pursues her desire to relocate to Ontario, then the children should come and live with him and T., a woman with whom he has entered into a committed relationship.

His plan is for the children to attend elementary school in Quesnel. Since he and T. both work, the children would go to daycare. A significant component of the respondent’s proposal involves T. and members of her family. [ 35 ] The Order provides for the manner in which the parties shall share Christmas and spring vacations. The respondent proposes that the applicant would have additional parenting time with the children in Prince George or some other mutually agreeable location.

[36] Since the sale of her home, the applicant and the children have been living in the home of a friend in Smithers. [37] If this application is granted, the applicant intends to relocate to Elliot Lake in time for the children to commence school in earlyJanuary 2015. III: THE APPLICABLE PRINCIPLES [38] The parties agree that since the Order was one which was final and made under the Divorce Act, this application is broughtpursuant to section 17(5) of the Divorce Act. [39] Accordingly, the governing principles are those set out in Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27 atparas. 49 -50: [49] … 1.

The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a materialchange in the circumstances affecting the child. 2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child,having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4.

The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views areentitled to great respect. 5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of thecase. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia: (

a) the existing custody arrangement and relationship between the child and the custodial parent; (

b) the existing access arrangement and the relationship between the child and the access parent; (

c) the desirability of maximizing contact between the child and both parents; (

d) the views of the child; (

e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs ofthe child; (

f) disruption to the child of a change in custody; (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [50] In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new locationmust be weighed against the continuance of full contact with the child's access parent, its extended family and its community.

Theultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? [40] Relocation will always be a change, and such change will often amount to one that materially affects the circumstances of thechild and the ability of a parent to meet the child’s needs: Gordon v.

Goertz at para. 14. [41] In the difficult determination of whether or not to accede to the proposed relocation of a child against the wishes of the non-relocating parent, the jurisprudence confirms the following four principles: • the court must maximize contact between the child and the parent within the limits of that which is consistent with the bestinterests of the child; • barring an improper motivation for relocation, there must be an attitude of respect for the custodial parent.

In part, this means therelocating parent need not prove the move is necessary, although necessity for the parent may bear upon the best interests of the child; • there is no presumption in favour of the status quo as the default position; and • reliance by a judge on any expression by the parent seeking to relocate that he or she will not move if the child cannot accompanyhim or her is discouraged. See Hejzlar v. Mitchell-Hejzlar, 2011 BCCA 230 at paras. 23-27. IV: THE PARTIES’ POSITIONS

[42] The applicant’s position is that the proposed relocation is being made in good faith and is in the best interests of the children.She says that her reasons for moving are to be in the immediate proximity of her extended family and to have additional supportavailable to her and the children. She points to the fact that the children have been with her for approximately 95% of their lives, the onlyexception being when they are with their father. [43] In addition, the applicant submits that there will be a reduction in childcare and educational expenses and she will also be ableto retrain.

Retraining is an important factor since it should lead to permanent full-time employment. [44] The applicant says that she has a comprehensive plan which addresses the fact the children will not have the current oneweekend per month time with their father. [45] The respondent submits that this application should not proceed summarily. He says examinations for discovery are requiredsuch that the applicant’s plan can be properly considered.

There should be a trial proper such that the court has enough evidence before itas to what will happen to the children in Ontario and whether that is in their best interests in comparison to what the situation would be inQuesnel should they reside with him. [46] It is Mr. G.’s position that the applicant is not acting in good faith. He points to the fact that she sold her home within days ofadvising him of the proposed relocation and that she has already moved her and the children’s personal possessions to Ontario.

Heargues that once his opposition to the relocation became known, the applicant should have breached the contract of purchase and salethat she had entered into for the sale of her home. [47] It is also the respondent’s position that the Order was made on the basis that both parties would be residing in BritishColumbia.

He argues that it is not in the children’s best interests to relocate to Ontario since this will deny them regular monthly accesstime with him. [48] The respondent does not seek, at first instance on this application, an order that the children’s primary residence be with him.He says it should remain with the applicant, but with her and the children continuing to live in British Columbia. In the alternative, hesubmits that should Ms. G. decide to relocate to Ontario, then the children should remain in British Columbia. In this scenario, theywould live with him and T. in Quesnel.

He proposes that non-vacation access or parenting time be exercised by the applicant bytravelling to Prince George or some other agreeable location in British Columbia. V: DISCUSSION A: Suitability for

Summary Trial [49] The first issue relates to the respondent’s position that this application should not be resolved by way of

summary trial and thatthere ought to be examinations for discovery and a trial proper. [50] The principles that apply to this issue were succinctly summarized by Madam Justice Ballance in Bank of Montreal v. Fraser,2013 BCSC 2328 at paras. 26-33: [26] Whether to proceed summarily is a matter for the discretion of the judge hearing the application. It has been observed thatdetermining on which side of the line a particular case falls can be a matter of some delicacy: North Fraser Harbour Commission v.Hardy BBT Ltd., [1994] B.C.J. No. 1672 (S.C.). [27] The test for the suitability of

summary disposition is not assessed by asking whether a full trial could conceivably turn something upor produce a different outcome. When an application for

summary trial is made, the parties are expected to take every reasonable step toput themselves in the best possible position and adduce all evidence they believe is necessary for judgment: R.G.H. v. British Columbia,[2010] B.C.J. No. 806, 2010 BCCA 220. [28] Being what it is, litigation almost invariably involves disputed facts. [29] In Cotton v. Wellsby (1991), (BC CA), 59 B.C.L.R. (2d) 366 (C.A.), Madam Justice Southin cautioned againstthe use of the

summary trial procedure when there are conflicting affidavits and the issues of who said what to whom and when are ofsignificance. At p. 378, her Ladyship reminded: Where such issues are crucial, the trial judge must be alive to the possibility that the case is simply not suitable for

summary trial. [30] It is settled principle that the existence of conflicting evidence, of itself, is not conclusive that a

summary trial is unsuitable. Thecourt is not precluded from finding the facts essential to decide the issues simply because material evidence is in conflict. So long as thejudge is able to find the facts required to render judgment by reference to other evidence, the matter may well be amenable to

summarydetermination even where there are conflicting affidavits on central issues: Placer Development Ltd. v. Skyline Explorations Ltd. (1985),67 B.C.L.R.366, 1985 CarswellBC 336 (C.A.); Steen McVeigh v. Boeriu, 2011 BCSC 400 at para. 49. [31] That state of affairs is to be distinguished from the case where the only relevant evidence before the court on a material point iscomprised of the conflicting testimony in the affidavits, and it is not possible for the court to decide the case summarily without makingfindings of credibility and ultimately preferring one affidavit over the other.

In that situation, the general rule is that it is not appropriateto proceed summarily: Jutt v. Doehring (1993), (BC CA), 82 B.C.L.R. (2d) 223 (C.A.); Cotton v. Wellsby, supra;Bouchal v. Slovakotour Inc. (1993), (BC CA), 83 B.C.L.R. (2d) 103, 1993 CarswellBC 235 (C.A.); Parker v.Campbell, [2002] B.C.J. No. 1697 (S.C.). [32] Where the Court concludes there is insufficient evidence before it to decide the issues, it may adjourn the application and order that

one or more deponents attend for cross-examination or that further affidavit material be filed. Another option is to simply decline to trythe issues summarily and order a conventional trial: Placer Development v. Skyline Explorations (1985), (BC CA), 67B.C.L.R. 366 (C.A.). [33]…The concept of whether it would be unjust to proceed summarily is to be given a broad meaning, taking into account the interestsnot only of the litigants at hand, but the interests of other persons as well: Stoney Creek Indian Bank v.

British Columbia (1999), 69B.C.L.R. (3d) 1 (C.A.), 1999 BCCA 527, 1999 CarswellBC 2166 (C.A.); leave to appeal refused (2000), [1999] S.C.C.A. No. 539, 2000CarswellBC 1752, 2000 CarswellBC 1753 (S.C.C.); Topgro Greenhouses Ltd. v. DeVries, [2007] B.C.J. No. 883. [51] In Inspiration Management Ltd. v. McDermid St. Lawrence Ltd., (BC CA), [1989] B.C.J. No. 1003 at para.48, 36 B.C.L.R. (2d) 202 (C.A.), McEachern C.J.B.C. outlined certain factors that can be considered in deciding the issue as to whether itwould be unjust to give judgment on a

summary application. These include the amount involved, the complexity of the matter, itsurgency, any prejudice likely to arise by reason of delay, the cost of taking the case forward to a conventional trial in relation to theamount involved, the course of the proceedings and any other matters which arise for consideration on this important question. [52] As Madam Justice Donegal noted in Keith v. MacMillan, 2014 BCSC 1352 at para. 40: Further factors for consideration include whether the litigation is extensive, the length of time for the

summary trial, whether credibilityis a crucial factor, whether there has been cross-examination of the deponents on conflicting affidavits, whether the

summary trial willinvolve a substantial risk of wasting time and effort and produce unnecessary complexity and whether the application has potential forlitigating in slices: Dahl v. Royal Bank of Canada, 2005 BCSC 1263[,] affirmed by 2006 BCCA 369 at para. 12 and Waters v. Michie,2011 BCSC 1083. [53] Bearing these principles in mind, I have concluded it is appropriate for this matter to be heard by way of

summary trial. I havenot only the parties’ affidavit evidence, but each was cross examined for approximately two hours. [54] The facts are largely not in dispute and there are no credibility issues to be resolved. I am able to find the necessary facts suchthat I can decide the issues of fact or law. It is the application of the legal principles to those facts that forms the basis of the parties’respective positions. There is no benefit to be gained to having examinations for discovery and then a full trial. [55] It would also not be unjust to proceed to have this relocation issue decided summarily.

In fact, the opposite is the case. In myview, it would be unjust to the children not to have this issue decided by way of

summary trial since the situation of uncertainty whichhas now existed for some time would unnecessarily continue into the future. B: Is Relocation in the Best Interests of the Children? [56] The threshold requirement for varying an order is a material change in circumstances affecting the children. The proposedrelocation satisfies this criterion: see Gordon v. Goertz at para. 14. [57] The issue then becomes whether the applicant has proven on a balance of probabilities that the proposed relocation is beingmade in good faith. [58] I have concluded that the applicant has established good faith.

She has valid educational and career reasons for the proposedmove which will have positive financial circumstances both for her and the children. [59] In addition, the children will benefit from the relocation by virtue of the fact that they will be close to their maternalgrandparents who will be involved in their care. The grandparents will also provide needed support to the applicant. [60] In my view, the reasons stated by Ms. G. for relocation are the real reasons for the move. They are not designed to frustrate orimpede Mr. G.’s access to his children. In fact, Ms.

G.’s conduct to date has been to do what she can to increase that access even whenthat is not specifically provided for in the Order. [61] There is also evidence before me to the effect that the applicant has communicated with the respondent in an entirelyappropriate manner with respect to school and health matters involving the children. There is no reason to believe this will not continue. [62] The respondent submits that the applicant is not acting in good faith in that she is essentially presenting him and the court with afait accompli.

This is shown by the sale of her home and the moving of personal effects to Ontario. He says there were no efforts madeby Ms. G. to cooperate with him to resolve any issues arising from the proposed relocation. [63] In my view, while the applicant may have exercised poor judgment in selling her home and arranging for the move of personalpossessions to Ontario, this did not amount in the circumstances of this case to having acted in bad faith. [64] That is because the applicant did bring this application in a timely way once the respondent’s views became known.

There wasno attempt made to relocate absent a court order or without the respondent’s agreement. Had the application been dismissed, Ms. G.would have borne the financial consequences of her actions, in particular selling her home and moving the possessions to Ontario. [65] Furthermore, from the time the parties separated in the fall of 2011 until June 2013, the respondent lived in Smithers.

In additionto the agreed-upon access time which he had with the children, the respondent was available to assist the applicant from time to time withthe children’s needs, depending on his work requirements. [66] In June 2013, for perfectly understandable career objectives, the respondent moved to Quesnel. Even though this move affectedhis day-to-day interaction with his children, he made the decision without consulting the applicant. [67] Consultation and communication are a two-way street. I accept Ms. G.’s evidence that, over a period of time, she gave

considerable thought to the relocation. Having made the decision, she then informed the respondent and brought this application. [ 68 ] I now turn to whether the proposed relocation is in the best interests of the children. Taking into account the factors in Goertz v. Gordon that are applicable to the particular circumstances of this case, old as well as new, I conclude the relocation is in their best interests. I do so for the following reasons. [ 69 ] First, I consider the existing arrangements and the relationship between the children and both their father and mother.

I do so within the context of determining which parent should have primary residence. See McIntosh v. Kaulbach , 2014 BCCA 299 at paras. 18- 19 . [ 70 ] I have no doubt that the respondent is a loving and caring father. [ 71 ] But this is not an equal parenting arrangement. In June 2013, the parties agreed that the children’s primary residence should be with the applicant. This has been the case until now. R.G. and W.G. are eight and five years old, respectively. Except for those occasions when the respondent is exercising access, they have spent their entire lives with their mother.

She has been the parent primarily responsible for their day-to-day care needs including health and education. In my view, the children’s primary residence should remain with the applicant. [ 72 ] In fact, the respondent’s initial position on this application is that the children’s primary residence should remain with the applicant, but in British Columbia, not Ontario. It is only in the event Ms.

G. decides to pursue the move to Ontario that he submits the children’s primary residence should be with him in Quesnel. [ 73 ] The parties appear to agree, correctly in my view, that due to their ages, the children’s views are not a material consideration on this application. The evidence on this issue is that while they like seeing and spending time with their father, they are also relieved to be at home with their mother. It is also apparent that the children’s lives will be affected whether they move to Ontario, Quesnel or elsewhere in British Columbia.

This will include living in a new home and community, attending a different school, etc. [ 74 ] Another factor is the extent to which the respondent’s access to the children can be maximized. In the applicant’s plan, the respondent’s loss of monthly weekend access with the children would be compensated for by having access every spring break as opposed to half of each spring break as set out in the Order, conditional on appropriate arrangements being made. [ 75 ] The applicant also proposes taking the children to Toronto for additional access visits if requested by the respondent.

There would be regular telephone contact and she would purchase an iPad for the children in order for them to have regular “Facetime” with the respondent. [ 76 ] The respondent’s plan should the children’s primary residence be with him is not, in my view, as well thought-out as the applicant’s. He proposes that the applicant come to Prince George or some other mutually agreeable location in order to see the children. This could also include Ontario.

While he acknowledges that visits in Prince George could be in a hotel, he does offer the names of friends who he says would welcome the applicant and the children in their home. He has not, however, specifically discussed this idea with them. [ 77 ] An integral part of the respondent’s plan should the children move to Quesnel is the involvement of T. and her family. This would be required in that the respondent’s work responsibilities involve him being in the field on a regular basis.

He did testify, however, that he believed he could work more frequently at home if the children were living with him. [ 78 ] When I consider the two plans, I conclude that the best interests of the children are better met by the applicant as opposed to the respondent.

While I have no reason to doubt as to T.’s good intentions, the fact remains that the children’s interests on a day-to-day basis are best met by their mother. [ 79 ] I am also satisfied that the applicant will do what she can to maximize contact between the children and their father. [ 80 ] Under the circumstances, the children should be with their father for essentially the entire 2014 Christmas vacation. VI: CONCLUSIONS [ 81 ] The application is granted and the Order varied as follows: (

a) the applicant may relocate with the children of the marriage, R.G. and W.G. (the “Children”), to Elliott Lake, Ontario effective January 1, 2015; (

b) the respondent shall have access to the Children for the 2014 Christmas vacation from after school on the last day of school until 6:00 p.m. on December 31, 2014; (

c) commencing in 2015, the respondent shall have specified access to the children as follows: (

i) half of each Christmas vacation alternating from year to year as to who has the first and second half with the respondent having first choice for Christmas 2015. The applicant shall pay for the costs of flights to and from Prince George, British Columbia; (ii) half of each summer vacation either July or August each year as agreed upon in advance by the parties. The applicant shall bear the costs of flights to and from Prince George, British Columbia; (iii) spring vacation each year. The applicant shall bear the costs of travel to and from Prince George, British Columbia;

(iv) the respondent may have such further and other access to the children in the event he decides, at his own expense, to travel to Toronto on seven days’ notice to the applicant; and, (

v) the respondent shall have telephone contact and Facetime contact with the children each week, on at least two occasions each week. [ 82 ] The applicant had sought an order that the respondent pay the cost of travel for the children for spring vacation access. In my view the applicant should bear these costs and that is reflected in paragraph (iii), above. [ 83 ] The parties may vary the terms set out in paragraph 81 by consent and in writing. [ 84 ] The applicant has achieved substantial success in this proceeding. She is entitled to her costs at Scale B. “Abrioux J.”