M.A. v D.M. Date:, 2013 BCPC 403

Citation: M.A. v D.M. Date: 20130828 2013 BCPC 0403 File No: 16355 Registry: Terrace IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: M. A. APPLICANT AND: D. M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. F. M. JACKSON Counsel for the Applicant: S. Mulder Counsel for the Respondent: A. Penner Place of Hearing: Terrace , B.C.

Date of Hearing: August 14, 2013 Date of Judgment: August 28, 2013 Issue [ 1 ] MA has given notice of relocation to Terrace. DM is opposed. The court must determine whether to allow the relocation under s69 of the Family Law Act . Background [ 2 ] The parties were married June 17 th , 2000 and separated “officially” on December 12 th , 2008. During the marriage two children were born, RCM, born [omitted for publishing] and CAM, born [omitted for publishing]. [ 3 ] On November 24 th , 2008 the parties entered a separation agreement which was marked as Exhibit 1.

That contract provided amongst other things for joint custody and guardianship (as they were then called) of the children. Paragraph 6a of the contract did also provide that MA would “have primary residency of the children.” [ 4 ] There were agreed variations to allow DM parenting time when he was not at work. He provided the

schedule to MA. The

schedule was marked as Exhibit 2. [ 5 ] DM’s parenting time was further varied to fit his work

schedule in that MA agreed to deliver the children to his home at 7:00 p.m. the evening before DM’s days off, if he was coming off a day shift. This was done at his request to increase his time with the children. This

schedule was marked as Exhibit 3. [ 6 ] MA gave notice of her intention to relocate. On May 1 st , 2013 DM applied for an order prohibiting that relocation and applying for equal shared care in Kitimat or if MA did relocate that he have primary care of the children with him in Kitimat. [ 7 ] There was a hearing on the issue of maintenance scheduled for June 13 th , 2013 which was adjourned pending the determination of the issues of relocation and parenting time. Evidence [ 8 ] MA testified that DM worked day shifts and night shifts and his time with the children was determined by his work

schedule at [omitted for publishing]. [ 9 ] MA testified that basically DM had the children one weekend per 4 week rotation plus approximately three other times during the cycle. She testified that his hours with the children were less than hers during the weeks with day time shifts and even fewer during the weeks with nighttime shifts. She added that DM also had parenting time as they shared Christmas, Easter plus he often would have the children for two weeks during the school summer holiday. [ 10 ] MA testified that she was the primary caregiver for the children.

She had enrolled both children in skating and paid for it all. As well she performed “mandatory volunteer” work for the skating association and DM did not. She added that RCM is not in skating this year but both children are registered in swimming. [ 11 ] MA testified that there are similar extracurricular skating activities available in Terrace for CAM to continue. [ 12 ] MA testified that she is employed as a special needs assistant [omitted for publishing]. As such she indicated her work hours are the same as the children’s school hours.

She also testified that she believes that she can find the same part-time position in Terrace. Also, as it is in the same [omitted for publishing], her seniority would transfer with her. She added that while she was assured that she would have a position in Terrace she still had her position in Kitimat as a backup. [ 13 ] MA testified that there were three reasons she wanted to relocate to Terrace. One was that she is in a relationship with KD since March 2012.

He is a professional fishing guide and on considering if he could relocate to Kitimat they agreed his work days would be too long with the extra 45 minute commute each way as he is required to get up a 4:00 a.m. in the fishing season to start work. [ 14 ] MA testified that the second reason for her relocation was to take advantage of what she viewed as a temporary spike in the housing market in Kitimat.

She testified that her house had sold within 5 days of being listed. [ 15 ] MA testified that the third reason for her relocation was to further her education as she could take a 4 year education degree in 2 years through the community college or she could take a 2 year office administrator course and run KD’s business. [ 16 ] MA testified that she sold her Kitimat house in July 2013 and moved to Terrace before this court hearing to allow the children to “get use to their new home before school.” She added that she had, despite the relocation, maintained the current parenting time

schedule based on DM’s work hours. [ 17 ] MA testified that there were more educational opportunities for the children in Terrace as the larger centre had a self-contained middle school while Kitimat had a middle school that shared the facility with the high school. There are also more advanced science classes in Terrace in the high school and Kitimat students have to travel to Terrace for these if they wish to take the more academic stream. [ 18 ] MA proposed varying DM’s parenting time so that he had the children every second weekend as well as all non-instructional

days, the entire Spring Break and reverting to the current

schedule during the School Summer holidays. As part of that proposal she suggested sharing the costs of the exchange by meeting approximately half way between Kitimat and Terrace at Onion Lake and that she would even deliver the children to Kitimat on the days that DM was coming off night shifts. [ 19 ] MA testified that her parents and brother all live in Kitimat and she intended on maintaining all those relationships. She added that she had extended an offer to DM’s parents to have contact with the children without DM but that they have not accepted.

She believed that the cause was they felt uncomfortable dealing with her since the separation and that their health is not very good. [ 20 ] MA testified that her relationship with DM is now quite strained and the only communication is about the children and done by texting. She added that DM does not respond to the large majority of her text messages and provided examples of problems between them in communicating and in contact during exchanges. [ 21 ] MA testified that KD has a friendly relationship with the children. He was described as being a friend to the children not a dad.

She added that they have a good dad, with reference to DM. [ 22 ] In cross-examination, MA advised that she has not registered for her own classes yet but intended to do so in January after she and the children settled in from the move. [ 23 ] In cross-examination, MA stated that the office administrator course she would more likely take consists of evening classes. [ 24 ] In cross-examination, MA indicated that she had decided to move to Terrace in January 2013 and that it was a firm decision in February 2013.

She stated she believed the DM would agree to her moving as he had considered relocating to Terrace himself. [ 25 ] In cross-examination, MA admitted to having called the RCMP to report DM for driving CAM in a motor vehicle without the required car seat. [ 26 ] DM testified that his parents, brother, several cousins and many children of the extended family reside in Kitimat. He added that the family’s children are of similar ages to his children. He listed the names of several friends that both RCM and CAM have in Kitimat.

Later in examination in chief he added that RCM does have a couple of friends in Terrace. [ 27 ] DM also testified that his parents are quite ill. He stated that his mother is waiting for a lung transplant and his father suffers from MS. He also added that his brother is currently separated from his wife. [ 28 ] DM testified that RCM was mixed up now. He attributed that to the move to Terrace. This was, in his mind, why RCM would have said that he didn’t want to go to DM’s home.

He acknowledged incidents of conflict between himself and MA that were caused by her actions. [ 29 ] DM believes that KD smokes marijuana from what CAM said. This was denied by MA. [ 30 ] DM testified as to his version of what occurred at the examples of conflict between himself and MA.

He explained that he does not respond to all messages from MA as he wants to avoid conflict. [ 31 ] In cross-examination, DM stated that he never said anything “bad” about MA to the children but that RCM may have overheard him say something when DM was speaking to a friend in the garage. [ 32 ] In cross-examination, DM stated that while he had contemplated relocating to Terrace to be in a relationship, he had chosen his children over the relationship. Analysis [ 33 ] As this file involves relocation the court must consider s69 of the Family Law Act .

Subsection 3 of s69 requires the court to consider both the best interest of the child factors listed in s37(2) and the factors in s69(4)(

a) of the act. [ 34 ] Section 69(4) reads: 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, person 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.

[ 35 ] It is clear from subsection 4 that it deals with the situation where the parents do not have substantially equal parenting time with the child. Conversely, if the parents do have substantially equal parenting time with the child, s69 (5) applies. It reads: 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 bests interests of the child. [ 36 ] Finally, s69(6) reads: 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;

d) Any restrictions on relocation contained in a written agreement or an order. [ 37 ] Accordingly, to determine whether to allow relocation under s69 Family Law Act , the court must first determine if the guardians have substantially equal parenting time.

If the guardians do then the court must consider whether the relocation is in good faith, if reasonable and workable arrangements are proposed to maintain current relationship and the best interests of the children. [ 38 ] If it is determined that the guardians do not have substantially equal parenting time the court must consider whether the relocation is in good faith and if reasonable and workable arrangements are proposed to maintain current relationships.

If the court is satisfied of those two factors the relocation must be considered in the best interests of the children unless the other guardian establishes otherwise. [ 39 ] This legislatively mandated approach has been augmented by the logic in LJR v SWR 2013 BCSC 1344 . Starting at paragraph 80 guidance is given for the situation where the relocating parent has failed to satisfy his or her onus under s69 that the relocation is in good faith.

It indicates that the court must still consider if relocation is in the best interests of the child. [ 40 ] The first issue for this court to determine is whether or not the parents have substantially equal parenting time. The separation contract (Exhibit 1) sets joint custody with MA having primary residency of the children. The parenting time

schedule (Exhibit 3) in a 28 day cycle allows DM approximately 227 hours or 9.5 days. That is approximately 33%. The evidence was also that DM also had the children most summers for two weeks. [ 41 ] In MKA v AFW 2013 BCSC 1415 , a thirty-six per cent parenting time share was held to not be substantially equal under s69 of the Family Law Act . DM’s contact with his children is largely controlled by his work shift schedule.

Based on these facts, the court finds that the parenting time is not substantially equal. [ 42 ] The next issue for the court is whether MA has established that the “relocation was made in good faith and that she has proposed a reasonable and workable plan to preserve the relationship between DM and the children. [ 43 ] Concerning the issue of good faith, four factors are listed in s69 (6) of the Family Law Act .

MA has given three reasons for the move: to cohabit with a man with whom she has been in a relationship for 18 month; to take advantage of an overheated real estate market; and to further her education. [ 44 ] The second factor to consider is whether the relocation would enhance the general quality of life of the children. MA testified that there are greater educational opportunities for the children in high school and a better middle school environment.

Also flowing from her reasons for moving there was enhanced educational wellbeing for MA herself. [ 45 ] Notice of relocation was given through the lawyers but not strictly complied with as there was a de facto move before this hearing.

MA explained that was the result of an unexpectedly quick sale of her house, five days after listing. [ 46 ] There were no restrictions on relocation in the separation agreement or any court order. [ 47 ] Counsel for DM has referenced LJR v SWR as a similar fact pattern, where the one parent relocated from B.C. to Tennessee before a court hearing. [ 48 ] In paragraph 71 of that decision, the court holds that good faith has both an objective and subjective element. [ 49 ] The learned Supreme Court judge then applied the four factors of s69 (6) to the facts of his case.

Concerning the reasons for the relocation he concluded that the move was for a new relationship with a perceived opportunity for employment which weighed in

favour of a finding of good faith. That is similar to the fact pattern of this case. [ 50 ] Concerning whether the relocation would enhance the general quality of life of the child, the learned Supreme Court judge concluded the hoped for greater financial security was uncertain and the geographic separation reduced the child’s relationship with her other parent and her extended family. That did not support a finding of good faith. [ 51 ] In the case at hand the financial impact is likely to be minimal.

While there is likely to be a reduction in the proposed parenting time by DM, the actual geographic separation is only approximately 45 minutes by motor vehicle. A portion of the reduced parenting time is caused by the inflexibility of DM’s work

schedule clashing with the inflexibility of public school attendance in a different city. The court finds these facts neither support nor detract from a finding of good faith. [ 52 ] Concerning the giving of notice, in the LJR v SWR case notice was given and that supported a finding of good faith. That is similar to the case before this court. [ 53 ] However, in this case, as in the LJR v SWR case, the relocating guardian moved before the hearing.

This pre-emptive relocation greatly troubled the learned Supreme Court judge and he concluded that the “fait accompli” basically asked the court to endorse what had occurred. He found the pre-emptive move to weigh against a finding of good faith. That was particularly so, in light of an earlier order of Master Young that while not prohibiting relocation was restrictive in nature. On a consideration of the whole of the factors the learned Supreme Court judge concluded that relocating parent had not established good faith. [ 54 ] Counsel for DM submitted the same logic should be used in this case.

She submitted that the pre-emptive relocation must lead the court to conclude that good faith by MA is not made out. [ 55 ] With respect, the court does not agree. The facts of this case are markedly different. While MA has relocated before the hearing she has continued to abide by the terms of the earlier scheduled parenting time. In effect, there has to this point been no change in DM’s parenting time since MA relocated to Terrace in July. Accordingly, that factor also weighs in favour of a finding of good faith.

This court is satisfied that MA has proposed the relocation in good faith as per s69(4)(a)(i). [ 56 ] It remains to consider whether MA has satisfied the court that her proposed arrangements to preserve the relationship between the children and DM and others with a significant role in the children’s lives are reasonable and workable as per s69(4)(a)(ii). [ 57 ] MA proposed that DM have the children every second weekend which are the only days both he and the children are available due to their schedules.

Further, she proposed he could have parenting time all non-instructional days, the entire school spring break and to revert to the current 28 day

schedule during school summer holidays. In light of DM’s work

schedule this may be more time that he can exercise without scheduling holidays. [ 58 ] The court concludes that the proposal is reasonable in the circumstances and is workable in so far as DM’s work

schedule will allow. Accordingly, the court is satisfied that MA has met the requirements of s69(4)(

a) and pursuant to s69(4)(

b) must consider the relocation to be in the best interests of the children, “unless another guardian (DM) satisfies the court otherwise.” [ 59 ] There is no doubt that DM is as in the words of MA, a “good father”. Nor is there any evidence before the court that MA is a bad mother. Concerns over the loss of connection with DM’s family in Kitimat were raised but MA indicated that she intended to continue to have the children in Kitimat to maintain ties with her family and that she had offered to DM’s parents contact to the children beyond time when they were with DM.

The court must conclude that DM has not established that the relocation is not in the presumed best interests of the children. Decision [ 60 ] The court finds MA and DM are both guardians of the children, RCM and CAM. [ 61 ] The court allows the relocation by their mother of the children to Terrace B.C. pursuant to s69(2) Family Law Act . [ 62 ] The court orders that DM shall have parenting time with the children every second weekend to match his days off from work.

MA shall deliver the children to DM’s residence in Kitimat at 7:00 p.m. on Friday if he is available and he shall return the children to MA at her residence in Terrace at 7:00 p.m. the following Sunday. If DM is working a night shift on the Friday night, MA shall deliver the children to DM’s residence at 8:00 a.m. on Saturday. [ 63 ] DM shall also have parenting time on all school non-instructional days and for the entire school spring break. [ 64 ] During the school summer holidays, DM shall have parenting time as per the

schedule marked as Exhibit 3 in this hearing. [ 65 ] In addition, during the school summer holidays, DM, on giving MA one month’s notice before May 31 st each year shall have two continuous weeks of parenting time with the children. [ 66 ] Similarly, during the school summer holidays, MA, on giving DM one month’s notice before June 30 th each year shall have two continuous weeks of parenting time with the children.

_________________ W. F. M. Jackson Provincial Court Judge