L.B. v. A.M. Date:, 2017 BCPC 283

Citation: L.B. v. A.M. Date: 20170907 2017 BCPC 283 File No: 16502 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: L.B. APPLICANT AND: A.M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Applicant: Mr. Stephen Soll Counsel for the Respondent: Mr. Donald Komori Place of Hearing: Kamloops , B.C.

Date of Hearing: July 24 - 27, 2017 Date of Judgment: September 7, 2017 A Corrigendum was released by the court on September 19, 2017. The corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] This is an application by L.B. for an order to relocate her daughter, O.R.M., born [omitted for publication] from Kamloops to Salmo, British Columbia, pursuant to s. 69 of the Family Law Act . A.M. opposed the application and brought his own application to vary a final order made by consent on November 12, 2013.

That order was made when the parties lived on Salt Spring Island and there was every expectation that the order could be given effect. [ 2 ] In his application, A.M. seeks shared parenting time and equal parenting responsibilities. L.B. opposes that application but is open to a modified Joyce version of guardianship where she will have the default authority on issues the parties cannot resolve. [ 3 ] The parties began their relationship in 2007 while living in Kamloops. In October 2008, they moved to Salt Spring Island and were living there when O.R.M. was born. The parties separated in April 2011.

Following that separation, A.M. went on an extended vacation to Japan in May 2013. He was away for approximately two months. [ 4 ] In November 2013, the parties consented to a final order at a family case conference which provided that L.B. would have the day-to-day care of O.R.M. Sundays to Fridays and A.M. would have the care of O.R.M. on weekends. [ 5 ] In May 2014, L.B. moved in with her now fiancé, C.D., and his two daughters, K.D. and S.D. In 2014, K.D. was five, O.R.M. was four, and S.D. was two. O.R.M. commenced Kindergarten at [omitted for publication] on Salt Spring Island in September 2014.

It is a small school with multiple grades in each class similar to the proposed school in Salmo. [ 6 ] In May 2015, A.M. moved to Japan for employment for a period of nine months. He returned in February 2016. It was at this point that his parenting time began to be fairly problematic with O.R.M. These problems persisted well into 2017. L.B. was of little assistance in ensuring these problems were overcome. A.M. took very few practical steps toward resolving O.R.M.’s resistance. L.B. opined that his long absence was the root of the estrangement. The evidence does not support this.

O.R.M. spent considerable time with her father before the separation and was clearly familiar and close with him before he left for Japan. O.R.M. seemed to be excited for his return. Although A.M. could have done a considerable amount more to remain at least in technological contact with O.R.M., there is no indication that he was a stranger or unfamiliar to her on his return. There was one incident the parties referred to where A.M. took out his frustration on a toy during his first parenting time with O.R.M. after his return.

It was blown out of all proportion, feeding unnecessarily into disproportionate “fears”. [ 7 ] In April 2016, L.B. and A.M. agreed that L.B. could relocate with O.R.M. to Kamloops temporarily while she attempted to adopt her then two year old niece, A. L.B. and C.D. testified that they continued their relationship, but from a distance. They also visited from time to time. How they described that relationship was disparate and irreconcilable.

L.B.’s evidence was evasive and circular. [ 8 ] L.B. said that she kept O.R.M. registered at [omitted for publication] but home-schooled her through the end of that school year. [ 9 ] A.M. was only able to visit O.R.M. in Kamloops twice between May and July 2016. He moved to Kamloops in August 2016. L.B. criticised A.M. for putting his financial and principled obligations ahead of his parenting time with O.R.M. over those three months.

However, it was her sudden and evidently unnecessary move to Kamloops that caused that break in parenting time. [ 10 ] In September 2016, O.R.M. began school in Kamloops in a distributed learning programme through Heartland Learning Community and North Island Distance Education School. It was largely a home-schooling programme. [ 11 ] At Christmas in 2016, A.M. took O.R.M. a day early for his extended Christmas vacation without L.B.’s consent.

As a result, L.B. applied for an order which was ultimately dealt with by a without prejudice order prohibiting A.M. from removing O.R.M. from Kamloops without the written consent of L.B. or further court order. [ 12 ] In January, 2017, A.M. had two incidents where he refused to leave L.B.’s presence resulting in the police being called in one instance and threatened in a second instance.

This was not a constructive approach on his part to resolving the parenting time issues and only worsened the relationship between O.R.M.’s parents. [ 13 ] Later that month, L.B. gave notice of relocation to A.M. of her intention to move herself and O.R.M. from Kamloops to Salmo. C.D. had purchased a large home on a seven acre lot in Salmo for the purposes of relocating his business. It was at this time that L.B. also abandoned her intention to adopt her niece.

L.B. testified that she abandoned this plan because she determined that the foster parents who were interested in adopting her niece were the appropriate placement for A. There is part of the picture missing here as well. [ 14 ] According to L.B. one of the Director’s issues with adoption by L.B. was her relationship with C.D. There had been a protection order against him with respect to his former partner and two children.

This was dismissed by L.B. as a misunderstanding based on some mental health concerns of his former partner. [ 15 ] L.B. said that she represented to the Director that her relationship with C.D. was ended, but they continued to be friends and were still in contact with each other. C.D. described circumstances that are more along the line of what I suspect is reality. He described a committed relationship that was ongoing but they were separated by necessity so that L.B. could adopt her niece.

At the end of the day, it must have been clear to L.B. that she could not continue in her relationship with C.D. and adopt A.

[ 16 ] Communications and relations between the parties deteriorated to the point that a mutual protection order was made by consent in March 2017. The parties are required to communicate by e-mail and only with respect to parenting arrangements. Both are prohibited from attending at or near their respective homes. [ 17 ] In April 2017, L.B. allowed her lease to expire in Kamloops and moved to live with her aunt in Barriere. This was in violation of her agreement with A.M. It was entirely a unilateral decision on her part.

L.B. defends this decision as a financial one despite her evidence that C.D. supported her financially; that her work with him at his business would provide her with financial security; and that she did not need to find work during her time in Kamloops because she was living off the profits of a successful calendar she had created and sold. [ 18 ] It was not until May 2017 that O.R.M. began to enjoy overnight visits and full weekends with her father. This was only accomplished because L.B.’s aunt impressed upon her that L.B. needed to take a firmer hand with O.R.M.

The parties also agreed toward the middle of that month that L.B. and O.R.M. could live in Salmo while A.M. was working in Revelstoke. It began to work for L.B.’s ultimate plans to accommodate A.M.’s parenting time with O.R.M. I am satisfied that if L.B. had no plans to move, she would not be making these efforts even now. [ 19 ] A Views of the Child Report was prepared in June 2017. There are some troubling passages that strongly suggest O.R.M. has been heavily influenced by her mother, not only in responding to the report but in her relationship generally with her father and his family.

While the evidence is that O.R.M. is a conversationally advanced child, she is not strong academically. The language that she evidently used with the counsellor leaves me satisfied that she is echoing the sentiments of her mother. It is also clear that L.B.’s unfounded and persistent belief that A.M. may have sexually abused their daughter has had a negative impact on O.R.M. At page 3 of the Views of the Child Report, O.R.M. reported that she sometimes did not see her father because she felt sick or was uncomfortable. She could not say why she was uncomfortable.

This arises in part from L.B.’s inexplicable reaction to scratches on O.R.M.’s vaginal area. [ 20 ] O.R.M. also has an insupportable perception of the ability of her paternal grandfather to assist in her care if she is to live with her father. She opined that her grandfather was not that healthy and would probably feed her junk food. She also said that she did not feel comfortable with them alone (meaning her grandfather and his partner). There is no basis for this view other than mimicking her mother’s opinions about the possible outcome of grandparents assisting in her care.

A.M. gave evidence that his father is healthy and has no concerns. He also eats a healthy diet although he enjoys his treats. [ 21 ] Perhaps most revealing from O.R.M.’s perspective is the more honest reflection that she and her father are not always busy because they have a lot of driving to do. O.R.M. then said that if she were permitted to move to Salmo she would continue to see her father regularly which would be easier for her mother. She went on to say to the writer that “I’m working on my part of the plan, mom is working on her part and C.D. is working on his part”.

This clearly reveals L.B. has enlisted O.R.M. in her strategy.

On the other hand, O.R.M. wants her father to move to Salmo so that he could see her more often. [ 22 ] In a more honest and age-appropriate reflection O.R.M. said to the report writer that she was glad when she sees her father “because I haven’t seen him in a long time, and I hate to leave him because I miss him, and I miss mom when I am with him - that’s the hardest thing about going back and forth”. [ 23 ] While O.R.M. would be satisfied if they had to stay in Kamloops, O.R.M. would prefer to go to Salmo because of the nature in Salmo and the “icky people” on the streets in Kamloops.

She concludes her comments to the report writer with the damning indictment of C.D.’s ex-wife who keeps “causing drama” and that the worst thing that could happen to her would be “my dad winning”. All of these clearly reflect excessive influence by her mother. [ 24 ] L.B. called evidence to show that O.R.M.’s relationship with her stepsisters is an outstanding one. They enjoy each other’s company and are happy to play together. One of the highlights of moving to Salmo is that O.R.M. will be close to these stepsisters. However, K.D. and S.D. are living with their mother, not their father.

They are not living in Salmo, but in Winlaw - a nearby community. The girls will only be with their father on weekends and those are the times that L.B. proposes to be sending O.R.M. to spend time with her father. There does not appear to be anything significant about this move that would ensure this relationship with the stepsisters would be enhanced or encouraged in a way that could not also be accomplished if O.R.M. lived with her father. THE LAW [ 25 ] The applicable sections of the Family Law Act are as follows: 37

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a 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 a child, all of the 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 thechild 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 carefor 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, includingwhether 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.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical,psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out insubsection (2), and only to the extent that it affects that factor. 47 On application, a court may change, suspend or terminate an order respecting parenting arrangements if satisfied that, since themaking of the order, there has been a change in the needs or circumstances of the child, including because of a change in thecircumstances of another person. 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 relocatingguardian.

(3) Despite section 37 (1) [best interests of child], the court, in making an order under this section, must consider, in addition to thefactors 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 equalparenting 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 thechild'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 ofthe child unless another guardian satisfies the court otherwise.

(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 relocatingguardian, 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 thechild's relocation were not permitted. [26] I will deal first with the issue of substantially equal parenting time with respect to s. 69(4). The parties concede that L.B. hasbeen the primary caregiver of O.R.M. since birth. She has always resided with her mother. There have been lengthy periods ofsuspension of A.M.’s parenting time both at his instance and at L.B.’s instance.

There is no question that the parenting time has not beensubstantially equal and therefore (4) applies. [27] Section 69(4) requires the consideration of whether the proposed move is made in good faith. Good faith was considered inPepin v. McCormack, 2014 BCSC 2230 , 2014 B.C.S.C 2230 at paragraph 69: [69] Good faith is a subjectively held state of mind. It involves an assessment of whether the reasons asserted by Ms. McCormack forthe proposed relocation are the real reasons for the move.

If so, and if the court determines on an objective basis that relocation willlikely enhance Madeleine's general quality of life, then the decision to relocate will normally be found to have been made in good faith. [28] If I am satisfied that the move is made in good faith and that L.B. has proposed reasonable and workable arrangements topreserve the relationship between O.R.M. and her father, her extended family in Kamloops, and any other persons who have a significantrole in O.R.M.’s life, then I must consider the relocation in O.R.M.’s best interests unless A.M. satisfies me otherwise. In other words, if

L.B. meets the burden set out in s. 69(4)(a), the burden then shifts to A.M. to satisfy the court that the relocation is not in O.R.M.’s bestinterest: J.K.C. v. B.F.G.P., 2016 BCSC 2392 , 2016 B.C.S.C. 2392. [29] Our Court of Appeal has stated in Fotsch v. Begin, 2015 BCCA 403 , 2015 B.C.C.A. 403 that the Family Law Act is acomplete code for the required analysis. It has also been stated in C.M.B. v.

B.D.G., 2014 BCSC 780 , 2014 B.C.S.C. 780 atparagraph 78 that the focus of the Family Law Act provision is on the impact of the relationship between child and guardian: [78] To summarize, I have concluded that the correct approach under s. 69(4) and (5) is for the court to consider whether theproposed relocation is made in good faith and whether reasonable and workable arrangements have been proposed. If one or both ofthese criteria are not met, the court must still go on to consider whether the proposed relocation is in the child's best interests.

Satisfaction of good faith and reasonable workable arrangements is necessary in order for a relocating guardian to benefit from thepresumption under s. 69(4)(

b) that the move is in the best interests of the child. [30] There have been a number of decisions considering whether proposed arrangements are reasonable and workable. In L.J.T. v.S.W.R., 2013 BCSC 1344 , 2013 B.C.S.C. 1344, the court held that reduced parenting time or a long distance move does notitself mean that reasonable arrangements have not been made. [31] There is no requirement that the arrangements be ideal: K.L.G. v. D.J.T., 2013 BCSC 1684 , 2013 B.C.S.C. 1684. It isappropriate to consider the emotional wellbeing of both O.R.M. and her mother: Hanson v. Ferguson, 2015 BCSC 588 , 2015B.C.S.C. 588.

ANALYSIS [32] I am concerned about the reliability of the evidence of both L.B. and C.D. Both prevaricated on matters that would notnecessarily have had a deciding impact on this case. They were evasive and, in L.B.’s case, untruthful, particularly where it concernedthe nature of her relationship with C.D. C.D. was evasive about his decision to move his business to Salmo for any other reason thanfacilitating easier parenting time with his own children. There were largely inadequate excuses about the ideal location of the property,the proximity of a business partner and the like that did not support this move.

That being said, I am satisfied that I am able to determinethe evidence regardless of my concerns about the reliability of some evidence. Good Faith [33] L.B.’s reasons for relocating to Salmo are that her fiancé recently purchased a home and relocated his business to be closer tohis own children. It is troubling to me that the primary deciding factors on this choice of location are C.D.’s convenience to his childrenas well as his preferred lifestyle, rather than a consideration of what is in the best interests of O.R.M.

L.B. has embraced those prioritieswithout consideration for how she will properly and appropriately maintain the very important relationships O.R.M. has with her fatherand his family. I reject L.B.’s evidence that O.R.M. has extended family in the Salmo area. O.R.M. has never had a meaningfulrelationship with these family members. At best, these relationships are new with no clear plan for their growth. [34] On the other hand, this is an excellent opportunity for L.B. to gain some meaningful employment and to establish a more stableresidence than O.R.M. has enjoyed to date.

O.R.M. has resided primarily in small towns like Salmo and so the relocation will be withinO.R.M.’s comfort zone. I am not satisfied it would enhance the general quality of O.R.M.’s life but it will certainly not detract from it. [35] While I do see that this move is of considerable benefit to L.B. and that some of the benefits to L.B. will flow in a positive wayto O.R.M., I am not satisfied that relocating to Salmo is going to increase O.R.M.’s emotional wellbeing or her educational opportunities. However, I do not see that they will be harmed by it either.

My only area of significant concern is L.B.’s manipulation of O.R.M.’srelationship with A.M. This can be addressed. [36] A.M. has been complacent throughout O.R.M.’s life until the move to Kamloops, to a certain degree. He has been absent fromO.R.M. for long periods and, when he could see that their relationship had deteriorated, he made no significant moves toward addressingthis. Apart from legal proceedings which he could have pursued more aggressively, he could also have sought counselling for O.R.M. toaddress their relationship.

He did not. [37] I am satisfied that there is no evidence before me L.B. has made this decision to relocate in bad faith. She has done it withoutany regard for A.M. or for O.R.M.’s longer term relationships. However, there is nothing in the choice to move that was done in order toharm those relationships or for the purposes of distancing O.R.M.’s father. In fact, for the first time, L.B. has made some significant andnecessary efforts to encourage O.R.M.’s relationship with her father.

Preserving the Relationships [38] Having been satisfied that this move is made in good faith, I must consider whether there have been workable arrangementsproposed to observe the child’s relationships.

I am satisfied that L.B. has not put any realistic consideration toward how she wouldpreserve those relationships and nor has she concerned herself about how that might impact O.R.M. [39] While L.B. has abandoned her original plan for how she will maintain O.R.M.’s relationships with A.M. and his familymembers, both parents have a current plan that will see O.R.M. travelling at least twice a month on a week day to spend the weekendwith her father. The school she will be going to uses Friday as a home-schooling day and so O.R.M. would not be attending school.

Thisdoes not take into consideration that she is currently not an academically strong student and would benefit from that home-schooling dayif she is not otherwise in a classroom. It also does not take into consideration that children, as they grow, develop social circles andbecome engaged in extracurricular activities. Sometimes those extracurricular activities involve weekend events. There are alsobirthday parties and other social events that are important to a child’s sense of community and belonging.

These positive engagementsdo not take priority over the value of parenting time with her father, but they are sacrifices a child should not have to make. However,arrangements for maintaining relationships are not always ideal.

[ 40 ] Perhaps more troubling is that O.R.M. has throughout her life enjoyed the company of her paternal grandmother. This has been disrupted by conflict in the family. While it is ordinarily expected that a child’s engagement with the members of extended family would happen on the respective parent’s parenting time, this has not been the case in O.R.M.’s life. I have not seen a solid plan from L.B. that would preserve that very important relationship. [ 41 ] L.B. does not meet the second requirement of the test; and the burden does not shift to A.M. to prove the move is not in O.R.M.’s best interests.

That being said, reasonable and workable arrangements can be devised that will ensure a meaningful relationship between O.R.M. and her father as well as his family, if the move is in O.R.M.’s best interests.

Section 37 Factors [ 42 ] I am satisfied that O.R.M.’s health and emotional wellbeing will be well attended by her mother if the relocation is permitted. However, I am concerned that there has been manipulation of O.R.M.’s views by L.B.

She does great harm to O.R.M.’s relationships and emotional well-being when L.B. makes unfounded comments about the paternal grandparent’s ability to care for O.R.M., encourages O.R.M.’s age-inappropriate decision making when O.R.M. has her temper tantrums about going with her father, and when L.B. makes so many key decisions unilaterally rather than in conjunction with A.M. [ 43 ] O.R.M.’s views have been provided to me through a Views of the Child Report. As I have said, these views have clearly been at least strongly guided by L.B.

It is in the more insightful comments made by O.R.M. that she hates to leave her father because she misses him that she is most honest. I am also concerned that some of her reluctance and feigned illnesses have been a product of L.B.’s own unfounded belief that A.M. may have sexually abused O.R.M. This not only influences my assessment of the Views of the Child Report but lends further concern to the health and emotional wellbeing of O.R.M.

This will not prevent a move in this case, but does demand that such a move also include a requirement that O.R.M. have counselling if she persists in her reluctance to have parenting time with her father. If that counselling is necessary, the cost is to be borne equally by the parents. [ 44 ] When considering the nature and strength of the relationships between O.R.M. and significant persons in her life, L.B. has unreasonably exercised control over who gets to see O.R.M. and when.

While O.R.M. has had strong relationships with her paternal side of her family, L.B. disregards the importance of those relationships in her decision making. [ 45 ] I have already noted that L.B.’s proposal for O.R.M. maintaining the strength of those relationships is not workable. She will have to ensure that when paternal members of O.R.M.’s family make requests for O.R.M. to have visits or to see O.R.M. when they are in Salmo or the area, L.B. will have to extend herself to ensure that those happen.

In other words, the paternal family ought not to have to wait until A.M.’s parenting time in order to provide to O.R.M. the benefits of her extended family. [ 46 ] The history of the child’s care, as I have said, has been largely settled. L.B. has been the primary caregiver since O.R.M. was born. [ 47 ] O.R.M. has a need for stability which she has not really enjoyed since she has been born. Living in buses, cabins and basements is not necessarily harmful to a child’s sense of stability, but it is impacted when those moves occur so frequently in such a young life.

When compounded by the disruption of O.R.M.’s school year to move to Kamloops and then to Barriere, disrupting another school year, the need for stability is pronounced. A.M. recognized that need for stability when he gave up his placement in Salt Spring and returned to Kamloops. While his living circumstances may not be the most ideal at the moment, they are hardly worthy of criticism. He is well supported by family and is gainfully employed. [ 48 ] L.B. maintains that the home purchased in Salmo with C.D. will be their permanent home for years to come. This is the stability that the O.R.M. will need.

Having said that, A.M. can provide O.R.M. with this stability as well. [ 49 ] Most troubling of all of the categories under s. 37 is the ability of L.B. to exercise her guardianship responsibilities in recognition of the benefits to O.R.M. of parents cooperatively co-parenting. L.B. has been quite persistent in asserting all of the guardianship decision-making powers for herself with very little regard to A.M.’s input.

This has not been limited to parenting time but has extended to L.B.’s decisions about O.R.M.’s education. [ 50 ] Despite O.R.M.’s struggles in school and A.M.’s protests about the disruptions in O.R.M.’s enrolment, L.B. has acted against O.R.M.’s interests by this frequent moving. If O.R.M. had been a strong student and was not academically impacted by the moves, they might have been seen as at least unharmful to her best interests. The only indication that O.R.M. has been doing well has been when her mother assessed and submitted her grades without any objective external review.

This does not accord with her experience as recent as last Christmas when her writing skills presented poorly by comparison to similar aged children. It is also not consistent with her Sylvan assessment or her academic record to that point. [ 51 ] There have also been some allegations of family violence but they have not had any impact on O.R.M.’s safety, security or wellbeing. The incidents in question have arisen when A.M. reached the point of frustration with L.B. He acted entirely inappropriately and inexcusably in forcing his presence on L.B.

His recourse ought to have been then as it must be in the future, to the courts if L.B. is not exercising her guardianship responsibilities appropriately. It is not appropriate to impose one’s presence on another person no matter how frustrated or desperate one may become. I am satisfied, though, that this will not impair A.M.’s ability to care for O.R.M. and meet her needs. Quite the contrary.

He has established that he is well capable of caring for O.R.M. so long as L.B. is not present and is not interfering. [ 52 ] With regard to the appropriateness of an arrangement requiring the parents to cooperate on issues affecting O.R.M., I am not satisfied that, absent orders, L.B. would cooperate with anything that does not align with her decisions. However, I am satisfied that the appropriate orders can address this concern. ORDERS [ 53 ] I allow L.B.’s application to relocate to Salmo with O.R.M. O.R.M.’s primary residence shall be with L.B.

[ 54 ] L.B. shall not move O.R.M. from Salmo without A.M.’s written permission unless such move is to relocate to the same town as A.M. resides. [ 55 ] The guardianship order I am making is not entirely in accordance with what the parties have sought. While L.B. sought a modified Joyce model with decision-making power to her, I am not satisfied that she has exercised that decision-making power to date in an entirely appropriate manner.

That does not mean to say that she cannot make these decisions but that she has done so unilaterally and without consideration for A.M.’s views of what are in the best interests of their child. [ 56 ] The guardianship orders I make are as follows: 1) The Court is satisfied that L.B. and A.M. are the guardians of the child, O.R.M., born [omitted for publication], under s. 39(3) of the Family Law Act . 2) Each guardian will advise the other guardian of any matters of a significant nature affecting O.R.M.; 3) Each guardian will consult the other guardian about any important decisions that must be made and will try to reach agreement concerning these important issues. 4) Under s. 49 if the guardians cannot agree on a decision relating to a parental responsibility, they shall first attempt to resolve the matter through a Family Justice Centre.

Failing that, A.M. shall make the decision and L.B. may apply for a review of that decision under s. 49 of the Family Law Act . 5) Under s. 40(2) of the Family Law Act , L.B. and A.M. will have the following parental responsibilities for O.R.M.: (

a) Making day to day decisions affecting O.R.M. and having day to day care, control and supervision of O.R.M. when O.R.M. is in that guardian’s care; (

b) Making decisions about where O.R.M. will reside in accordance with the order I have made with respect to any future moves; (

c) Making decisions about O.R.M.’s cultural, medical, religious and spiritual upbringing; (

d) Making decisions respecting O.R.M.’s participation in extracurricular activities, including the nature, extent and location; (

e) Subject to

section 17 of the Infants Act , giving, refusing or withdrawing consent to medical, dental and other health-related treatments for O.R.M.; (

f) Applying for a passport, licence, permit, benefit, privilege or other thing for O.R.M.; (

g) Giving, refusing or withdrawing consent for O.R.M., if consent is required; (

h) Receiving and responding to any notice that a parent or guardian is entitled or required by law to receive; (

i) Requesting and receiving from third parties health, education or other information respecting O.R.M.; (

j) Subject to any applicable provincial legislation; (

i) Starting, defending, compromising or settling any proceeding relating to O.R.M.; and (ii) Identifying, advancing and protecting the child's legal and financial interests; and (

k) Exercising any other responsibilities reasonably necessary to nurture O.R.M.’s development. 6) Under s. 40(2) of the Family Law Act A.M. will have parental responsibilities with respect to O.R.M.’s education except that O.R.M. shall be registered in the public school at Salmo. She shall not miss school unless such absences are agreed by A.M. or a doctor’s note has excused her attendance. In any event, O.R.M.’s school shall not be changed except in accordance with A.M.’s decision or further order of the court. 7) A.M. will have liberal and generous parenting time at dates and times agreed between the guardians, including the follows:

a) in even-numbered years A.M. shall have O.R.M. for Family Day in February, on the May long weekend and for Thanksgiving weekend. Parenting time shall commence at such time as the parties may agree or not later than 7:00 p.m. on the Friday of the long weekend until 6:00 p.m. on the Monday of the long weekend;

b) for so long as Salmo has a one week Spring Break, A.M. shall have parenting time with O.R.M. every year commencing at 9:00 a.m. on the first Saturday of Spring Break until11:00 a.m. on the final Sunday of Spring Break, or on such other dates and times as agreed between the parties. In the event that Salmo has a two week Spring Break, the second week shall be with L.B.;

c) regardless of when Easter falls, A.M. shall have O.R.M. in odd-numbered years commencing not later than 7:00 p.m. on the Thursday before the Easter weekend until 6:00 p.m. on the Easter Monday;

d) A.M. shall have one full month of parenting time with O.R.M. each summer for July or August. That month shall commence on the Friday before the first day of the month (which may include the final days of June or the final days of July, respectively), such parenting time to commence at 7:00 p.m. and to end on the Friday following the final day of that month at 6:00 p.m. In other words, if A.M. is to choose the month of July in 2018, his parenting time will commence at 7:00 p.m. on June 29 and conclude at 6:00 p.m. on August 3. A.M. shall advise L.B. not later than May 1 each year of the month he has chosen.

8) A.M. will have parenting time for one weekend per month with O.R.M. commencing at 9:00 p.m. on the chosen Thursday through to 6:00 p.m. on the chosen Sunday. This weekend per month shall not include any statutory holiday parenting time to which he is entitled by this court order. In May it shall not include Mother’s Day weekend. 9) In addition to a scheduled weekend in June, A.M. shall have parenting time on Father’s Day weekend. 10) A.M. shall provide L.B. with the

schedule of weekends he selects for parenting time for the school year by September 30, 2017 and each year thereafter by August 1. L.B. shall provide a

schedule of activities O.R.M. is registered in each month, not later than the 15 th date of the previous month. 11) A.M. shall have parenting time with O.R.M. in odd-numbered years commencing December 2017 from 7:00 p.m. on the final day of school for half of the school break which shall, in any event, include Christmas and Boxing Day.

In even-numbered years, A.M.’s parenting time shall commence at 7:00 p.m. on December 26 until 6:00 p.m. on the Sunday before school commences. 12) Unless expressly agreed in advance, all exchanges shall be in Revelstoke, British Columbia. 13) This is the minimum parenting time to which A.M. is entitled. If he is able to travel to Salmo, L.B. shall make O.R.M. available for parenting time with her father. That parenting time shall include overnight at A.M.’s request. L.B. has indicated that both she and C.D. extended an invitation to A.M. to stay with them for parenting time in Salmo.

If A.M. is agreeable to that arrangement, then he may certainly do so. He is not compelled by this order to do so. 14) These parenting time arrangements are made necessary by the strained lack of cooperation between the parents in the past. Should the parents achieve a level where they are able to cooperate more fully and wish to adjust the parenting time set out in this order, they may do so with the express written consent of the other party.

No decisions to alter the parenting time may be made unilaterally by either party except where permitted by the terms of this order. [ 57 ] Each parent will have liberal telephone and e-mail access to O.R.M. at all reasonable times when she is residing with the other parent. [ 58 ] If L.B. prevents A.M. from exercising regularly scheduled parenting time or if A.M. is unable to exercise any regularly scheduled parenting time because O.R.M. is suffering from significant illness and has a doctor’s note or because road or weather conditions make it unsafe to travel according to public travel advisories, A.M. is entitled to make up parenting time of an equal amount at a date selected by A.M. so long as that date does not interfere with O.R.M.’s education or scheduled activities. [ 59 ] L.B. must give A.M. notice forthwith if O.R.M. is not able to travel for regularly scheduled parenting time because of a significant illness, with a doctor note, or if the road and weather conditions make it unsafe to travel according to public travel advisories.

She must provide a selection of dates with that notice that would be appropriate for rescheduling the missed parenting time in addition to any other parenting time to which A.M. is already entitled. [ 60 ] If A.M. is unable to exercise any parenting time with O.R.M. during any scheduled time, A.M. will notify L.B. immediately, in which case A.M. will be entitled to make up parenting time, as may be agreed between the parties. [ 61 ] The parties will (

a) put the best interests of O.R.M. before their own interests; (

b) encourage O.R.M. to have a good relationship with the other parent and speak to O.R.M. about the other parent and that parent’s partner in a positive and respectful manner; and (

c) make a real effort to maintain polite, respectful communications with each other, refraining from any negative or hostile criticism, communication or argument in front of O.R.M. [ 62 ] The parties will not (

a) question O.R.M. about the other parent or time spent with the other parent beyond simple conversational questions; (

b) discuss with O.R.M. any inappropriate adult, court or legal matters; or (

c) blame, criticize or disparage the other parent to O.R.M. [ 63 ] The parties will encourage their respective families to refrain from any negative comments about the other parent and his or her extended family, and from discussions in front of O.R.M. concerning family issues or litigation. [ 64 ] It seems to me that the protection order currently in place should be terminated. The more appropriate order regarding communications should have similar wording but be a conduct order. If the parties wish to include that term in this order, they may do so.

If they wish to address this term before me, they may make the appropriate arrangements through the judicial case manager. ______________________________ S.D. Frame Provincial Court Judge CORRIGENDUM - Released September 19, 2017 [1] Please note the corrected change to Paragraph [56](11) of the original Reasons for Judgment issued September 7, 2017 as per the following: [56] 11) A.M. shall have parenting time with O.R.M. in odd-numbered years commencing December 2017 from 7:00 p.m. on the final day of school for half of the school break which shall, in any event, include Christmas and Boxing Day.

In even-numbered years, A.M.’s parenting time shall commence at 7:00 p.m. on December 26 until 6:00 p.m. on the Sunday before school commences.