S.A.W. v. P.J.W., 2018 BCPC 376

Citation: S.A.W. v. P.J.W. 2018 BCPC 376 Date: 20181025 File No: 175138 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.A.W. APPLICANT AND: P.J.W. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P.D. WHYTE

Counsel for the Applicant: D. Dent Counsel for the Respondent: H. Zetzsche Place of Hearing: Williams Lake , B.C. Dates of Hearing: Feb 6, Mar 26 , 27, Apr. 9 , May 25, June 20, Aug 7, 2018 Date of Judgment: October 25, 2018 A Corrigendum was released by the Court on January 31, 2019. The corrections have been made to the text and the Corrigendum is appended to this document.

INTRODUCTION [ 1 ] P.J.W. and S.A.W. are the parents of two children: S.W., born [omitted for publication] and currently aged 11 years; and J.W., born [omitted for publication] and currently eight years of age (collectively, the “Children”). [ 2 ] The parties have applied at various times for orders relating to parenting time, allocation of parental responsibilities, and more recently with regard to S.A.W., an application to relocate the Children from [omitted for publication] to [omitted for publication], B.C. [ 3 ] The matter is complicated in part by the fact that S.A.W.’s application to relocate the Children was filed on June 27, 2017.

However, P.J.W. had previously filed an application on March 22, 2017, seeking an order to prohibit the Children from relocating to [omitted for publication]. [ 4 ] In the face of these applications, it appears to be most appropriate to consider S.A.W. as the Applicant to a relocation application, and P.J.W. as the Respondent, who opposes the relocation. Thus, I shall refer to S.A.W. as the “Applicant”, and P.J.W. as the “Respondent”.

POSITION OF THE PARTIES [ 5 ] The Applicant seeks to relocate the Children from [omitted for publication] to [omitted for publication], B.C., a distance of approximately 860 kilometres from their current location. She submits that it is no longer financially viable for her to live in the remote [omitted for publication] area. Employment is scarce and unpredictable. Because of this, the Applicant says she is unable to afford accommodation other than her current rustic cabin rental. Additionally, the local school is insufficient to meet the needs of S.W. in particular.

It is argued that the [omitted for publication] School lacks the resources to manage S.W.’s behavioural and developmental / learning needs. Finally, the dearth of extracurricular activities available to Children and families is of concern. While J.W. is viewed as more resilient and adaptable, S.W.’s struggles with his surroundings are significant and only getting worse. [ 6 ] A move to [omitted for publication], it is argued, would allow for S.W. and J.W. to thrive in a larger school with more resources.

The Applicant has proposed that she would live with her friends, who have offered her free accommodation until she is established. There are more opportunities for employment and more resources to assist S.W. In sum, it is argued that it is in the best interests of the Children that they experience a fresh start in a larger, more populous location. [ 7 ] Of course, a move of this distance can be reasonably expected to have a significant impact upon the Children’s relationship with the Respondent.

Such a move would make it more difficult and more expensive for the Respondent to see the Children, due to the increased geographic distance between them. [ 8 ] The Respondent opposes the relocation application. He submits that the Children are better off being close to both parents. He argues that the rural surroundings are ideal for S.W., who benefits from hands-on involvement in activities that are available in the [omitted for publication] environment. The Respondent says S.W., in particular, has improved his school performance of late.

He questions the motive for bringing the application in the first place, and suggests the Applicant does not apply in good faith. Ultimately, the Respondent submits that a balancing of the factors found in

section 37 of the Family Law Act (“ FLA ”) favours the maintenance of the current arrangement. Any assertion that the Children would be better off in [omitted for publication] is speculation, and the Children should not be subject to such a disruptive move for what amounts to an experiment in new surroundings. [ 9 ] The parties acknowledge that each of them has an important role to play in the Children’s lives. Neither seeks to curtail parenting time unnecessarily, although the proposed relocation would have precisely that effect.

Each party proposes reasonable and generous parenting time, to the extent such can be accommodated. They also propose continued sharing of parental responsibilities. ISSUES [ 10 ] The issues to be decided in this application are as follows: 1. Has there been satisfactory compliance with the relevant provisions of the Family Law Act (“ FLA ”) pertaining to relocation applications? 2. Should the Applicant’s proposed move to [omitted for publication], B.C. be granted? 3. How are the relevant parental responsibilities to be apportioned between the Applicant and Respondent? 4.

How is parenting time to be allocated in the circumstances? [ 11 ] This matter was heard over six days of substantive testimony between February 6 and June 22, 2018. Submissions were heard on a further day in August 2018. At the conclusion, a decision on the Application was reserved. These reasons form my decision on the Application.

[ 12 ] It is clear that each of the Applicant and Respondent are important in the lives of the Children. They currently share parenting time roughly equally. If the Application is allowed, that would change drastically, as the Applicant would then have the majority of parenting time with the Children. Conversely, if the Application is denied, the Applicant will find herself limited in her opportunities for employment.

She will be required to try to carve out a meagre living in her rural surroundings, if she wishes to remain in the [omitted for publication] community close to the Children. [ 13 ] Compromises in such applications are rare, and usually require judicial intervention. It is unsurprising that relocation applications are often viewed as among the more difficult decisions a Family Law Judge must make.

A good deal has been written about the challenges inherent in trying to determine what is in the best interest of children when their parents adopt diametrically opposed positions, each one convinced their proposal is what is best.

SUMMARY OF THE EVIDENCE [ 14 ] The Applicant and Respondent are from [omitted for publication]. They met in 1992, and moved in together in 1994. They married on January 16, 2000, during a holiday in Canada. In 2006 they moved to Canada, and settled in British Columbia’s vast and beautiful [omitted for publication] region. They rented a trailer in the [omitted for publication] area. The Respondent worked as a [omitted for publication]. The Applicant worked a variety of jobs in the [omitted for publication] industry.

S.W. was born in 2007. [ 15 ] In 2009, the couple purchased a log home and a parcel of land in [omitted for publication], an unincorporated settlement on the western end of the [omitted for publication]. A year later, J.W. was born, and the family began fostering troubled children. Their foster home placement closed in 2014 after a physical incident involving the Respondent and one of their particularly troubled foster children. The Respondent testified that they were burnt out from fostering. [ 16 ] The Respondent began to suffer the effects of a lifetime of physical labour.

His ability to work in capacities that required such labour started to diminish, due to pain in his back and elbows. Given the lack of readily available employment outside the home, the couple began to experience financial problems. The Respondent ultimately sought and received Worksafe compensation and welfare benefits, as well as retraining. During this time, the Applicant was the primary financial support for the family. [ 17 ] Regrettably, problems developed in the parties’ relationship. Arguments became more frequent.

Allegations of inappropriate behaviour with ranch hands were leveled against the Respondent. Additionally, the Applicant alleged improper physical discipline of S.W. by the Respondent. The Respondent acknowledged speaking to the Applicant in a demeaning way, both privately and in public. The matter appears to have come to a head in 2015 when a particularly difficult argument became physical. Each of the Applicant and Respondent put hands on the other. The Respondent said the Applicant yelled at the Children and swore in their presence when she was upset.

Both parties allowed their discord to be witnessed by the Children. [ 18 ] In August 2016, the Applicant moved out of the family home, and into a rural dwelling in [omitted for publication] owned by her friends, Y.N. and W.K. The Respondent remained in the family home until April 2017, when he could no longer afford it.

He currently resides in a place called the [omitted for publication]. [ 19 ] The Respondent has worked in a variety of different capacities since the separation, including [omitted for publication] and driving a [omitted for publication], but his employment has been restricted by his physical limitations. He currently works as a substitute [omitted for publication]. He hopes this will eventually become more regular work when the current [omitted for publication] retires. [ 20 ] The Respondent drafted a Separation Agreement on January 16, 2017, and filed as Exhibit 2 on these proceedings (the “Agreement”).

The Agreement was intended as a final settlement of the parties’ rights to property, and issues pertaining to child support, parenting time and guardianship. The Agreement was not signed by the Applicant. [ 21 ] The Agreement has some relevance to the matter before the court, however. Under the heading “Children, parenting and guardianship”, it reads in part: (

d) Given the special circumstances of the Husband’s and the Wife’s uncertain living/income situation in their remote locations, it seems highly likely, that the Husband, the Wife or both of them will change residence in the future. The Wife has indicated she’ll move to the [omitted for publication], the Husband considers moving to where he finds employment.

Separation Agreement, page 3, paragraph 6. [ 22 ] While the Applicant testified that she did not discuss relocation with the Respondent prior to the drafting of the Agreement, it appears to have been in the mind of the Respondent as early as January 2017. [ 23 ] Interestingly, despite the Applicant’s position that she had not discussed the prospect of relocation, the Respondent filed a March 22, 2017 Notice of Motion, in which he sought, inter alia , an order that the Applicant be prohibited from relocating with the Children. [ 24 ] Relations between the Applicant and Respondent continued to deteriorate over the spring and summer months in 2017.

In March or April 2017, the Applicant contacted the Ministry for Children and Family Development (“ MCFD ”), alleging inappropriate conduct between the Respondent and the Children. MCFD initiated an investigation, and imposed a requirement that the Respondent’s parenting time with the Children be supervised. An interim consent order pronounced by Gove, J. on April 27, 2017 mandated supervised visits. [ 25 ] The parties appeared before Bayliff, J. on June 22, 2017, following the Respondent’s application to rescind the supervised parenting time requirement.

MCFD concluded their investigation on or about May 18, 2017, and determined the Children were no longer in need of protection. Bayliff, J. concluded that the Respondent had shared inappropriate sexual information with the Children. Noting the position of MCFD, however, she set aside the supervised parenting order and ordered on an interim basis that the parties share approximately equal parenting time.

June 22, 2017 transcript [ 26 ] A similar allegation appears to have been leveled against the Respondent in January 2018. Once again, MCFD investigated, and determined the Children were not in need of protection. MCFD social worker Tyler Bennicke testified in these proceedings. Mr. Bennicke testified that neither of the Children disclosed inappropriate behaviour. The MCFD file was closed without further intervention. [ 27 ] One of the principal considerations in the Application is the parties’ son, S.W. There appears to be less concern as to how relocation might affect their daughter, J.W.

Both J.W. and S.W.’s report cards were tendered as Exhibits. J.W. was universally described as a bright and popular child who would do well in any academic or social environment. [ 28 ] S.W. is a boy with significant behavioural and educational challenges. A March 2, 2016 Psycho-educational Assessment tendered at Tab 1 of Exhibit 1 describes his ongoing struggles in school “…despite ample interventions.” The struggles are both academic and behavioural. The report mentions issues with anger control, the maintenance of peer relationships and generally oppositional behaviour in school.

The report assesses S.W. as being in the low percentile range in most areas of cognitive functioning, with the exception of Verbal Comprehension, in which he scores in the average range. Regarding academic functioning, his scores range from low-average to above average range, depending on the subject. [ 29 ] S.W. has been subject to several suspensions from school due to behavioural difficulties, including “…physical assault and intimidation”, as noted on a June 9, 2017 letter from C.G., principal of [omitted for publication] Elementary / Junior Secondary School.

C.G. testified that S.W. assaulted another student with a tennis racquet, which led to a 10 day suspension from school. S.W. began the 2017 school year under a planned reintegration, given the problems experienced during the previous school year. Unfortunately, he once again ran into difficulties with a particular teacher, R.C. A May 17, 2018 email from A.P., [omitted for publication] Elementary teacher tendered as Exhibit 9, outlines a series of more recent incidents involving S.W.

S.W. is described as slipping back into previous bad behaviour, including refusing to do any work for R.C.; calling other students names; and accusing some of them of inappropriate sexual activities. He was considered by A.P. to be “…taunting, bullying and aggressive”. He has historically required a good deal of teacher intervention to manage. As A.P. stated plainly in her email: “…S.W. was probably the most disruptive and angry I have seen in ages.

He seems truly fed up and said he hates everyone in the school.” May 17, 2018 email from A.P., page 2. [ 30 ] If [omitted for publication] is not the [omitted for publication] in British Columbia, it is close to the [omitted for publication]. C.G. testified that the expected complement for the 2017 school year was between [omitted for publication] students from [omitted for publication]. The small number of students and teachers necessitates the grouping of students into classrooms.

In the mornings, [omitted for publication] through [omitted for publication] students are taught together. [Omitted for publication] are taught in a separate classroom. High school aged students receive their education [omitted for publication]. [ 31 ] In the afternoons, [omitted for publication] are taught together, while [omitted for publication] are together. High school aged students are taught in their own group. [ 32 ] C.G. testified that the school sponsors a [omitted for publication] night once per week, which is the only [omitted for publication].

The school organizes outdoor field trips to various locations as well. [Omitted for publication] clinics are available, but not offered through the school. [ 33 ] As [omitted for publication] Elementary has a complement of [omitted for publication] teachers working the equivalent of 2.4 full time positions (C.G., R.C. and A.P.), there are few other options for a fresh start for S.W. in school. C.G. testified that the school was able to secure the services of an educational assistant, who worked one on one with S.W. during the early part of the year.

Additionally, one of the teachers with a special needs background was able to offer some assistance. That same teacher offered learning assistance to S.W. one hour per week. [ 34 ] Despite this extra help, S.W. experienced problems leading to his suspension in June 2017. C.G. testified that the educational gap between S.W. and the other students at [omitted for publication] was widening. [ 35 ] The Applicant testified that it is no longer feasible for her to continue to live in the remote [omitted for publication] environment. She has no realistic prospects for employment.

Her shifts in a local [omitted for publication] had been significantly reduced, to eight hours per week. She works a further four or so hours per week assisting [omitted for publication] clients with [omitted for publication]. Remaining in [omitted for publication] would result in a bare subsistence existence, without a great deal of hope that things would improve financially. Further, despite a more positive recent report card and ongoing private counselling, S.W. appears to be falling further behind his peers. His behavioural difficulties are taxing the limited resources of his small rural community.

In short, the Applicant says the future in [omitted for publication] is dim financially and scholastically, and it is becoming dimmer. [ 36 ] The Applicant says a move to [omitted for publication] is a fresh start for her and the Children. Her friends W.K. and Y.N. testified that they would be able to provide the Applicant and the Children with free accommodation until such time that the Applicant settles and obtains employment.

W.K. testified that he has available an apartment separate from his residence, which includes its own entrance, full kitchen, bedroom including a loft area with bunkbeds, full bathroom, washing machine and dryer and fireplace. Once the Applicant was working, W.K. testified that he would offer a reasonable rate for rent, which would include utilities. [ 37 ] The Applicant said [omitted for publication] Elementary School offers a larger, more diverse learning environment. Details regarding [omitted for publication] Elementary School are found at Tab 5 of Exhibit 1.

It is described as having approximately [omitted for publication] students and [omitted for publication] teachers. Additionally, the school has a dedicated Special Education worker and Counsellor. Y.N. testified that typically two grades are combined. For example, grades four and five, and five and six, are taught together.

[ 38 ] A document tendered as Exhibit 4 is titled “2016-1017 Family & Child Guide Resource Directory”, for the [omitted for publication]. It details various programs and opportunities available for residents of that region. Unsurprisingly, the larger [omitted for publication] population attracts more in the way of organized family activities, and this is reflected in the content of the Resource Directory. [ 39 ] Finally, the Applicant testified as to having a more robust support network in [omitted for publication] that in [omitted for publication].

That network is anchored by her friendship with W.K. and Y.N., whom she described as her very good friends. There are other individuals in the community that she has met. These people appeared to be more acquaintances than good friends. They are people the Applicant has met; she appears to see the potential of establishing a more significant relationship with them. [ 40 ] The Respondent testified that he had ample space for the Children in his cabin residence. When a nanny is present, J.W. and the nanny sleep on mattresses in a loft area, and he and S.W. sleep in separate beds at the base of the loft.

He denied that J.W. is required to share a bed with a nanny. [ 41 ] The Respondent testified that he intended to move back to the parties’ former matrimonial home, where there would be more space for him and the Children. The Respondent indicated he would try to begin a limited farming operation again. He said the Children love the family home, and they would be comfortable there. [ 42 ] The Respondent proposed a longer term plan that would involve both he and the Applicant moving to Williams Lake.

He posed this as a compromise wherein the Applicant would have more opportunities for decent accommodation and employment, and the Children would still benefit from maximum contact with both parents. The Applicant rejected the idea, testifying that, in her view, the Williams Lake high school would be too overwhelming for S.W. Additionally, she has no friends or family there, and had no desire to relocate to that city. [ 43 ] In sum, these two loving, caring parents propose diametrically opposed plans, each of them convinced that theirs is in the best interest of the Children.

One seeks to maintain the status quo, allowing both parents roughly equivalent parenting time, but in circumstances of economic and academic uncertainty. The other argues a change to a larger community with more resources and opportunity is ultimately in the best interest of the Children, even if it comes at the cost of parenting time for the non-relocating parent. THE LAW Relocation applications are discussed under Division 6 of the FLA : 65

(1) In this Division, "relocation" means a change in the location of the residence of a child or child's guardian that can reasonably be expected to have a significant impact on the child's relationship with (

a) a guardian, or (

b) one or more other persons having a significant role in the child's life.

(2) This Division applies if (

a) a child's guardian plans to relocate himself or herself or the child, or both, and (

b) a written agreement or an order respecting parenting arrangements or contact with the child applies to the child. Orders respecting relocation 69

(1) In this section, "relocating guardian" means a guardian who plans to relocate a child.

(2) On application by a guardian, a court may make an order permitting or prohibiting the relocation of a child by the relocating guardian.

(3) Despite section 37 (1) [best interests of child] , the court, in making an order under this section, must consider, in addition to the factors set out in section 37(2), the factors set out in subsection (4) (

a) of this section.

(4) If an application is made under this

section and the relocating guardian and another guardian do not have substantially equal parenting time with the child, (

a) the relocating guardian must satisfy the court that (

i) the proposed relocation is made in good faith, and (ii) the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life, and (

b) on the court being satisfied of the factors referred to in paragraph (a), the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise.

(5) If an application is made under this

section and the relocating guardian and another guardian have substantially equal parenting time with the child, the relocating guardian must satisfy the court (

a) of the factors described in subsection (4)(a), and,

(

b) that the relocation is in the best interests of the child. [ 44 ] Given that the parties currently share roughly equal parenting time, the matter is appropriately analyzed under section 69(5). [ 45 ] Thus, after weighing the conditions listed in section 69(4)(a), the court must determine whether or not the proposed move is in the best interests of the child. In deciding the question of what is in a child’s best interest, the court must consider the factors listed in section 37(2) of the FLA , including: (

a) the child's health and emotional well-being; (

b) the child's views, unless it would be inappropriate to consider them; (

c) the nature and strength of the relationships between the child and significant persons in the child's life; (

d) the history of the child's care; (

e) the child's need for stability, given the child's age and stage of development; (

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (

g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being. [ 46 ]

Section 66 of the FLA requires that the guardian who intends to change the residence of the child must give notice to all other guardians and persons having contact with the child at least 60 days in advance of the proposed move. The notice must contain the date of the proposed relocation and must set out where it is proposed that the child will move to. Notice can be dispensed with on application to the court on appropriate grounds. [ 47 ] Under section 69(6) of the FLA , the court must consider the following factors in deciding whether or not the application is being made in good faith:

a) the reasons for the proposed relocation;

b) whether the proposed relocation is likely to enhance the general quality of life of the child and of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;

c) whether notice was given under

section 66;

d) any restrictions on relocation contained in a written agreement or an order. [ 48 ] Even if a proposed relocation is found to be in good faith, section 69(5)(

b) of the FLA requires that the court still consider whether or not the proposed move is in the best interest of the child. ANALYSIS 1. Has the Applicant Complied with Notice Provisions Under

Section 66? [ 49 ] This issue was canvassed at the commencement of the trial. I determined that the notice provision had been met in the circumstances. [ 50 ] Notice can be provided in various ways, including through the filing of a Notice of Application. In this case, the first concrete evidence of notice is found in the Applicant’s June 27, 2017 Application to Obtain an Order. In that Application, she spells out her intention to relocate to [omitted for publication], B.C.

The Application does not provide a timeline for such a move. [ 51 ] While this notice is imperfect, it is clearly not the first indication the Respondent had that such a move was being considered. The Respondent filed an Application to Obtain an Order on March 22, 2017, in which he sought an order to prohibit relocation. While the Applicant denied having formal discussions with the Respondent about relocation prior to March 2017, I conclude that such discussions did take place.

It is the only rational explanation for the Respondent’s March 22, 2017 Application. [ 52 ] Additionally, the Respondent drafted a Separation Agreement on January 16, 2017, in which he specifically mentioned the Applicant’s relocation to the [omitted for publication] as “highly likely”. [ 53 ] In the circumstances, I am satisfied that the Respondent had sufficient notice of the Application to relocate. 2. Is the Relocation Application Made in Good Faith?

[ 54 ] I am satisfied by the evidence I have heard that the Applicant proposed the move in good faith. Nothing in the evidence has led me to conclude that the application was brought out of spite or malice toward the Respondent, but rather out of genuine concern for the Children. Additionally, the Applicant has convinced me that she believes [omitted for publication] can offer the Children a more stable, supportive environment in which they can thrive. [ 55 ] The Applicant’s quality of life would almost certainly be enhanced by the relocation.

She is isolated in [omitted for publication], with few prospects for employment. Her current residence is a cabin without a separate bedroom, for herself or the Children. The proposed relocation would result in a larger home, close to her support system. [ 56 ] However, the Applicant’s proposal would have a significant impact upon the Children’s relationship with the Respondent. The distance between [omitted for publication] and [omitted for publication] is substantial. It is impractical for the Applicant and Respondent to share parenting time with the Children equally while they reside so far apart.

Any Order regarding parenting time will negatively impact the relationship one of the litigants has with the Children This will in turn have an adverse effect upon the Children’s well-being, as they will be away from one half of their family for long periods of time. The Children appear to be strongly attached to both of their parents. [ 57 ] I infer from the evidence I have heard that the Applicant would support reasonable parenting time for the Respondent with the Children.

She does not wish to curtail parenting time, despite her concerns regarding the Respondent’s alleged inappropriate behaviour around the Children (which the Respondent has in large measure denied). [ 58 ] The Applicant has proposed parenting time for the Respondent on one weekend per month (extended to include the Friday and Monday), and shared access during extended holidays. This proposal is as good as it can be given the significant distance between the parties. 3. Is the Relocation in the Best Interest of the Children? [ 59 ] With regard to the factors enumerated in section 37(2) of the FLA :

a) The Child’s Heath and Emotional Well-Being: [ 60 ] J.W. is consistently described as a girl who is outgoing, adaptable and generally requiring less maintenance. She is likely to flourish wherever she is. With regard to J.W., this heading favours neither the Applicant nor the Respondent’s position. [ 61 ] However, I have significant concerns regarding S.W.’s emotional health in the current environment. He appears to be falling behind his classmates, particularly in math, despite the considerable supports put in place to assist him.

More importantly, he seems to have limited opportunities in his small scholastic community. He has developed a negative relationship with R.C. in particular. There is no other school, classroom or teacher locally that could be considered as an alternative for S.W. [ 62 ] S.W. is described by his father as a boy who needs to be kept busy. In this regard, the Respondent works hard to provide him with physical activities. But the Respondent himself is limited physically. Further, there simply are not many community opportunities for a boy with higher than average need in [omitted for publication].

The distances between parents and most organized activity are substantial. [Omitted for publication] offers a wide range of extracurricular activities for children and families. [ 63 ] I agree with counsel for the Applicant: the proposed relocation would result in a superior living arrangement for the Children. W.K. and Y.N.’s residence is large and modern, and free for the time being. [ 64 ] While there is no guarantee that S.W. will thrive in [omitted for publication], the evidence I have heard leads me to conclude that his scholastic performance and emotional health is suffering in his current circumstances.

This subsection favours relocation, in my view.

b) The Child’s Views: [ 65 ] The Children’s views have not been taken into account in this Application. Neither counsel suggested that the Children’s views be considered, given their age. I conclude from the evidence I have heard that the Children have a positive, loving relationship with both of their parents.

c) The Nature and Strength of Relationships between the Children and Significant Persons in the Children’s Lives: [ 66 ] The proposed relocation would, of necessity, interfere with the relationships the Children have established with the Respondent. It would result in a significant reduction in the Respondent’s parenting time. I cannot conclude that the Children’s relationships with either the Applicant or Respondent are greater or lesser. Both offer strong, loving attachments. It is my sincere hope that the parties recognize this, and will make their best effort to foster the Children’s familial relationships, whatever the outcome.

d) History of the Children’s Care: [ 67 ] Prior to separation, the Applicant was the primary caregiver for the Children. Since separation, the parties have shared parenting time approximately equally. The Applicant and Respondent are substantially involved in the Children’s lives, both academically and socially.

e) The Children’s Need for Stability: [ 68 ] The Respondent’s plan for the Children is somewhat undefined. It is based on a variety of contingencies, and is really a series of short term plans. He intends to move from [omitted for publication] to the matrimonial home. He may move to move to Williams Lake when the Children are high school aged. He is currently receiving welfare, as his Worksafe benefits have expired. He hopes to

drive the [omitted for publication]. He hopes to build up the farm to something of a concern. He is plagued by physical limitations on employment. Regrettably, these contingencies introduce a measure of instability and unpredictability into the Children’s lives. [ 69 ] The move to [omitted for publication] would have the inherent benefit of improving the Children’s living arrangements without the immediate need to pay rent. As previously stated, W.K. testified that he would not charge the Applicant rent until she was financially stable.

While such a move may well be destabilizing in the short term, it would provide S.W. with a chance at a fresh start in a new environment. J.W. appears to be less likely to be destabilized by the relocation, although I would expect there would be a period of transition for both children as they adjust. [ 70 ] The Applicant argues that the relocation would also remove opportunities for the Respondent to treat her poorly in the presence of the Children.

This, it is submitted, will benefit S.W. in particular, who has at times mirrored the bad behaviour he witnessed. [ 71 ] In this regard, I accept that the Respondent has taken responsibility for his bad behaviour, and sought out treatment and counselling. I conclude from the evidence I heard that the Respondent is unlikely to treat the Applicant as he did previously while the Children are present.

f) The Ability of Each Guardian to Exercise His or Her Responsibilities [ 72 ] Each guardian is able to exercise their respective parental responsibilities. Neither parent is manifestly deficient in this regard. The proposed relocation would have the effect of limiting the Respondent’s parenting time, but he would continue to exercise his parenting responsibilities. [ 73 ] Concern has been raised by the Applicant regarding the Respondent’s past inappropriate behaviour with the Children.

As indicated, the Respondent has acknowledged his poor parenting decisions, and has undertaken counselling to address his deficiencies. I conclude that the Respondent is capable of exercising his parenting responsibilities in an appropriate manner.

g) The Impact of Any Family Violence on the Child’s Safety, Security or Well-Being: [ 74 ] There has been at least one incident of physical violence between the Applicant and Respondent, in 2015. That altercation appeared to be initiated by the Applicant, who referred to the Respondent as “pushing my buttons”. The Respondent also engaged with the Applicant physically at that time. [ 75 ] Much was said about the Respondent’s verbal abuse and insults toward the Applicant.

The Applicant raised a number of specific incidents where, in the presence of the Children, the Respondent was belittling, demeaning and insulting. There is evidence that S.W. was exposed to, and mirrored this behaviour. The Applicant argued for an expansive definition of family violence, noting that the definition of family violence found in

section 1 of the FLA includes “emotional abuse”. [ 76 ] In K.L.L. v. D.J. , 2014 BCPC 85 (“ KLL ”) , Brecknell, RAJ, in the context of a Protection Order application, referenced an unnamed decision of the British Columbia Supreme Court where family violence was given a broad definition, including the use of derogatory language.

Brecknell, RAJ determined family violence had been made out, noting in that case that there was also an incident of actual physical violence between the parties. [ 77 ] The Respondent argued that KLL was a without notice application for a Protection Order, and therefore can be distinguished from the current application. In addition, the Respondent argued that Brecknell, RAJ did not provide examples of what derogatory language was considered to meet the definition of “family violence”. [ 78 ] Clearly, there is no justification for this type of behaviour. It is inherently damaging to the Children.

Children are experiential sponges. It should be unsurprising to anyone that S.W., a boy dealing with his own challenges involving anger and emotional regulation, would repeat the negative, demeaning comments he heard his father use in reference to his mother. [ 79 ] Having said so, I am cognizant of the need to differentiate unpleasantness from actual psychological or emotional abuse. In my view, family violence should not be enlarged to include mere arguments and insulting discourse. [ 80 ] The Respondent’s behaviour was at a different level.

He appeared to target the Applicant, repeatedly calling her fat, ugly and generally inadequate in the presence of S.W. and others. In turn, S.W. appeared to replicate these comments in front of his friend, and to the Applicant herself, calling her a “bitch”, and a “fat lady”. This suggests to me that the comments were made with some frequency, and in S.W.’s presence. [ 81 ] This went beyond the kind of nasty or spiteful arguments often associated with the end of a relationship. I am particularly concerned that the Respondent did not regulate his behavior while in the presence of his vulnerable son.

While at the lower end of the scale, I do view the Respondent’s behaviour as fitting a broad definition of family violence. [ 82 ] The Respondent acknowledged that he behaved badly at times. He has, however, undertaken counselling to deal with this. Additionally, the comments appear to have stopped when the parties separated.

As noted previously, I am of the view that the Respondent is unlikely to treat the Applicant as he did previously in the Children’s presence. [ 83 ] Given that the Respondent has undertaken counselling, and the incidents of poor behaviour were during the time the couple cohabitated, I do not consider it necessary to evaluate

section 37(

h) as regards to either party.

i) The Appropriateness of an Arrangement That Would Require the Child’s Guardians to Cooperate on Issues Affecting the Children: [ 84 ] The Respondent testified that he was content in having the court determine the extent to which the parties would exercise parental responsibilities. The Applicant does not seek to curtail the sharing of parental responsibilities. The parties have largely shared

these responsibilities during their period of separation. I would expect that spirit of cooperation to continue if the relocation is approved, for it is certainly in the Children’s best interest.

j) Civil or Criminal Proceedings Relevant to the Child’s Safety, Security or Well-Being: [ 85 ] This factor is not relevant to the Application. Neither party is facing civil or criminal sanction. The Ministry for Children and Family Development has no current concerns with the Respondent’s behaviour toward the Children. While the Applicant retains a residual concern that the Respondent will be inappropriate with the Children, there is no present concrete basis to conclude this will occur.

DECISION [ 86 ] Having considered all of these factors, I am satisfied that it is in the Children’s best interest that the relocation to [omitted for publication] be approved. I am of the view, given the totality of the evidence I have heard, that the Children’s best chances for stability, support, growth and development will occur in that new environment. S.W.’s needs and challenges factor prominently in this decision. I ultimately consider the prospects for learning, extra assistance and extracurricular activity are greater in [omitted for publication].

While no one can predict with precision how the Children will fare in their new surroundings, I disagree that the Applicant’s proposal is premised on mere speculation. The Applicant has tendered sufficient evidence to satisfy me that [omitted for publication] offers the best chance at stability and growth for these young children. [ 87 ] I do not lose sight of the fact that such a move will impact J.W. as well. She is universally described as more resilient, however, and likely to flourish in any environment. Nor do I suggest that such a move will be easy for either of the Children in the short term.

S.W. in particular appears to do best in predictable environments. There will be a period of transition. Given S.W.’s challenges, I expect there will be difficulty in the short term. However, in my view, the benefits associated with this relocation are likely to outweigh its costs. [ 88 ] This relocation will significantly affect the Respondent’s parenting time. It is incumbent upon the parties to take all reasonable steps to preserve the Children’s relationship with the Respondent.

In addition to maximizing in person parenting time, I expect the Applicant and Respondent to arrange as much telephone or Skype access as can be accommodated. [ 89 ] The Respondent submitted that, if the relocation was approved, it should take place between school terms so as to be as minimally disruptive to the Children’s academic programs. I agree. A move of this magnitude should be arranged around the Children’s academic schedules. It should take place before the commencement of the January 2019 term, but not before.

ORDER [ 90 ] For the foregoing reasons, I make the following order: [ 91 ] Upon the court being advised that the names and birth dates of the Children are S.W., born [omitted for publication]; and J.W., born [omitted for publication] (collectively the “Children”): [ 92 ] The Court is satisfied that the Applicant S.A.W. and the Respondent P.J.W. are the guardians of the Children under section 39(1) of the Family Law Act (“ FLA ”). [ 93 ] Under section 40(2) of the FLA the guardians will share equally all parental responsibilities for the Children. [ 94 ] Under

section 49 of the FLA , if the guardians cannot agree on a parental responsibility, S.A.W. shall make the decision and P.J.W. may apply to this Court for a review of that decision. [ 95 ] The application brought by S.A.W. to relocate the residence of the Children to [omitted for publication], B.C. is approved, pursuant to section 69(2) of the FLA . [ 96 ] The Children’s primary residence shall be with S.A.W. P.J.W. shall have reasonable parenting time at dates and times agreed between the guardians. Such parenting time is to be no less than one extended weekend per month, at times agreed to by the guardians.

P.J.W.’s extended weekend shall include the Friday before and the Monday following the weekend. [ 97 ] Pick up and drop off locations for the Children shall be as agreed between the parties. If the parties are unable to agree on a pick up and drop off location for the Child, then pick up and drop offs shall take place in [omitted for publication], B.C. at a location mutually agreeable to the parties.

This is the town close to halfway between the parties, taking into account the fact that S.A.W. would have to take a ferry to [omitted for publication] during her part of the journey. [ 98 ] The guardians shall share equally the travel costs associated with P.J.W.’s parenting time with the Children. [ 99 ] Additionally, P.J.W. shall have Skype or telephone contact with the Children no less than twice per week, dependent upon the availability of that internet or telephone based contact. [ 100 ] S.A.W. and P.J.W. shall have parenting time with the Children approximately equally during spring break, summer and winter school holidays, at dates and times as agreed between them. ___________________________

P.D. Whyte Provincial Court Judge CORRIGENDUM - Released January 31, 2019 [1] This corrigendum is to correct an error that occurred in paragraph 14 of the Reasons for Judgment released October 25, 2018. The occupation of the Applicant and Respondent was entered incorrectly. Paragraph 14 should read as follows (changes are highlighted): [14] The Applicant and Respondent are from [omitted for publication]. They met in 1992, and moved in together in 1994. They married on January 16, 2000, during a holiday in Canada.

In 2006 they moved to Canada, and settled in British Columbia’s vast and beautiful [omitted for publication] region. They rented a trailer in the [omitted for publication] area. The Respondent worked as a [omitted for publication]. The Applicant worked a variety of jobs in the [omitted for publication] industry. S.W. was born in 2007. [2] In paragraph 18 the following sentence incorrectly referred to the Applicant as the Respondent. It should read as follows:

(18) In August 2016, the Applicant moved out of the family home, and into a rural dwelling in [omitted for publication] owned by her friends, Y.N. and W.K. The Respondent remained in the family home until April 2017, when he could no longer afford it. He currently resides in a place called the [omitted for publication]. ______________________________________ The Honourable P.D. Whyte Provincial Court Judge