C.B.B. v. M.B. Date:, 2017 BCPC 245

Citation: C.B.B. v. M.B. Date: 20170817 2017 BCPC 245 File No: 17524 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.B.B. APPLICANT AND: M.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. T. DOULIS Counsel for the Applicant: C. Hutchinson Counsel for the Respondent: T. Hudson Place of Hearing: Smithers , B.C.

Date of Hearing: June 13, 14 and August 3, 2017 Date of Judgment: August 17, 2017 INTRODUCTION [ 1 ] M.B. and C.B.B. are before the court today both seeking the primary residence of their six year old son, J.B., and an allocation of parenting time and responsibilities. Mr. and Ms. B cohabitated between April 2009 and May 2013. J.B. was born on [omitted for publication]. On December 27, 2013, M.B. and C.B.B. entered into a Separation Agreement which gave C.B.B. parenting time with J.B. five days per week and M.B. parenting time two days per week. Both M.B. and C.B.B. have since established new relationships.

Over time, M.B.’s parenting time with J.B. increased. By December 2015, M.B. and C.B.B. shared substantially equal parenting time with J.B. In the spring of 2016, C.B.B. gave M.B. notice of her intention to move to [omitted for publication], B.C. to reside with her new partner, B.J. M.B. told C.B.B. he would oppose her relocating J.B. In June 2016, C.B.B. separated from B.J. and advised M.B. she had changed her mind about moving to [omitted for publication]. C.B.B. reconciled with B.J. and in August 2016 moved to [omitted for publication] with J.B. without M.B.’s knowledge or consent.

Up until this time, J.B. had lived his entire life in Houston, B.C., with his parents and their respective extended families. [ 2 ] On October 21, 2016, Judge Birnie ordered C.B.B. to return J.B. to Houston, B.C. Since then, J.B. has resided in Houston with M.B. and C.B.B. has had parenting time with J.B. every second weekend and on such days and at such times as the parents from time to time agreed. Issues: [ 3 ] The issues before the court are: 1. Was C.B.B. required to provide further written notice of her intention to relocate J.B. after June 4, 2016? 2.

Did the parties have substantially equal parenting time? 3. Was C.B.B.’s move to [omitted for publication] made in good faith? 4. Has C.B.B. proposed reasonable and workable arrangement for parenting time? 5. Is moving to [omitted for publication] in J.B.’s best interest? HISTORY OF THE PROCEEDINGS [ 4 ] On May 19, 2016, M.B. filed an Application to Obtain an Order in which he sought with respect to J.B.: (

a) guardianship; (

b) contact; (

c) parenting time; (

d) allocation of parenting responsibilities; (

e) an order prohibiting C.B.B. from relocating J.B. from Houston to [omitted for publication], B.C. [ 5 ] On August 23, 2016, M.B. filed a Notice of Motion for an order prohibiting C.B.B. from relocating J.B. and requiring his immediate return to Houston, B.C. [ 6 ] On August 23, 2016, M.B. filed an Affidavit in this matter, attaching exhibits “A” to “M”. [ 7 ] On August 29, 2016, Kyla Alliston, paralegal in the employ of legal counsel for M.B., filed an affidavit attaching as Exhibit “A”, a letter from [omitted for publication] concerning J.B. and Exhibit “B”, J.B.’s Student Information Verification. [ 8 ] On September 1, 2016, M.B.’s August 23, 2016 Application came before Judge Jackson in the Smithers Provincial Court.

M.B. was represented by Mr. DeWolf and C.B.B. was represented by Ms. L. Locke, acting as duty counsel. Judge Jackson granted C.B.B.’s request for an adjournment. [ 9 ] On September 22, 2016, C.B.B. filed an Affidavit with the Court, to which she attached Exhibits “A”, “B” and “C”. [ 10 ] On September 27, 2016, C.B.B. filed a Reply to M.B.’s May 19, 2016 Application to Obtain an Order. In her Reply, C.B.B. disagreed with M.B.’s application in its entirety. C.B.B. counterclaimed for guardianship, parenting time, and allocation of parenting responsibilities with respect to J.B.

C.B.B. also sought child support and retroactive child support. [ 11 ] On October 6, 2016, M.B. filed an Affidavit with the Court in response to C.B.B.’s September 22, 2016 Affidavit, attaching Exhibits “A” to “E”. [ 12 ] On October 13, 2016, M.B.’s August 23, 2016 Application came before Judge Struyk in the Smithers Provincial Court. M.B. was represented by Mr. DeWolf and C.B.B. was represented by Ms. J. Reed. The matter was adjourned to the Judicial Case Manager to

schedule a hearing of the application. [ 13 ] On October 19, 2016, M.B. filed a Reply to C.B.B.’s September 27, 2016 Counterclaim. In his Reply M.B. agreed that C.B.B. have guardianship of J.B. In all other respects, M.B. disagreed with C.B.B.’s application. M.B. reiterated his application to have J.B. reside primarily with him in Houston, B.C. [ 14 ] On October 21, 2016, M.B.’s August 23, 2016 Application came before Judge Birnie in Smithers Provincial Court. On that date, Judge Birnie made an interim order requiring C.B.B. to return J.B. to the Houston area by October 29, 2016.

Judge Birnie further ordered that if C.B.B. returned to Houston, then M.B. and C.B.B. would share parenting time with J.B. If C.B.B. chose to remain in

[omitted for publication], then J.B. would reside with M.B. and C.B.B. would have reasonable parenting time. [15] On January 16, 2017, M.B. filed a Form 4 Financial Statement. [16] The parties agree that all affidavits filed in these proceedings to date are before me. [17] This matter came on for trial on June 13, 14 and August 3, 2017. I heard evidence from C.B.B., B.J., M.B., and A.S. I receivedinto evidence the following exhibits: a. Exhibit 1: Separation Agreement between M.B. and C.B.B. dated December 27, 2013; b. Exhibit 2: printout of iPhone text messages between C.B.B. and M.B. dated January 22 [2016]; c.

Exhibit 3: print out of iPhone text messages between C.B.B. and M.B. dated April 9 and 10 [2016]; d. Exhibit 4: print out of iPhone text messages between C.B.B. and M.B. dated May 29 and 30 [2016]; e. Exhibit 5: print out of iPhone text messages between C.B.B. and M.B. dated April 12, 15, 16 and 18, [2016]; f.

Exhibit 6: Evidence Binder containing: (1) photographs of M.B., A.S., J.B. and others; (2) print outs of iPhone text messagesbetween C.B.B. and M.B. on September 15, [2013]; (3) print out of iPhone text messages between C.B.B. and M.B.; and (4) print out ofiPhone text messages between C.B.B. and M.B. on December 1. g. Exhibit 7: Trial record containing the pleadings, affidavits, financial statement and court records. [18] At the conclusion of the Respondent’s case, I invited Mr. Hutchinson to recall C.B.B. to address evidence with which she hadnot been confronted.

He declined to do so. [19] At the conclusion of the trial, I heard submission of counsel and received legislation and case law provided in support of theirrespective arguments. I have reviewed and considered all the materials. [Cite cases] I echo the words of Madam Justice Fisher inHadjioannou v. Hadjioannou, 2013 BCSC 1683 at p. 22: 71 In assessing best interests, all of the children's needs and circumstances must be considered. Counsel referred me to a number ofmobility cases . . . I have considered them all, as well as this court's decision in [L.J.R. v.

S.W.R., 2013 BCSC 1344 ], but caseslike this are fact-specific such that canvassing the circumstances in those cases is not a helpful exercise. My duty is to apply theprinciples to the facts of this case to determine what is in the best interests of the children of the parties before me. Background Facts [20] M.B. and C.B.B. were in a spousal relationship between April 2009 and May 20, 2013. They began cohabitating in April 2009and were married on July 7, 2012 in Houston, B.C.

They separated on May 20, 2013, and never reconciled. [21] M.B. and C.B.B. are the biological parents of J.B., born [omitted for publication]. Separation Agreement [22] On December 27, 2013, M.B. and C.B.B. entered into a comprehensive separation agreement, a copy of which was markedExhibit 1 in these proceedings.

In this separation agreement, M.B. and C.B.B. acknowledge their common wish to share child-relatedresponsibilities and to minimize the effect of their separation on J.B.: Exhibit 1, p. 1, Recital G and p. 2, para. 1. [23] With respect to J.B., M.B. and C.B.B. agreed, among other things, to the following terms: a. they would be J.B.’s guardians; b. they would put J.B.’s best interest before their own; c. they would keep each other informed about matters effecting J.B.’s well-being; d. they would encourage J.B. to have a good relationship with the other parent; e.

C.B.B. would have parenting time with J.B. five days per week and M.B. would have parenting time two days per week; f. they would share parenting responsibilities for J.B. with a duty to consult one another about important decisions and significantmatters affecting J.B.; and g. they would use their best efforts to cooperate with each other to further J.B.’s best interests. [24] Paragraph 18 of the Separation Agreement sets out a comprehensive list of parental responsibilities, all of which the guardiansmust exercise in J.B.’s best interests.

Those parental responsibilities include making decisions where J.B. will reside and with whom hewill reside and associate. It also includes decisions as to where he will go to school. Paragraphs 19 and 20 of the Separation Agreementstate: 19. Subject to Clause 20, for the exercise of any other parental responsibilities, both guardians must consult about important decisionsthat must be made and try to reach agreement concerning these important decisions.

20. During parenting time, a guardian may exercise the parental responsibilities of making day-to-day decisions affecting the Child provided that the guardian must advise the other parent of any matters of a significant nature affecting the Child (i.e. out of area trips). [ 25 ] Within a month of separating from M.B., C.B.B. began residing in an intimate relationship with P.A.

C.B.B. and J.B. lived with P.A. and his two children until October 4, 2015, when P.A. died in a motorcycle accident. [ 26 ] When they first separated, C.B.B. had parenting time with J.B. during the work week and M.B. had parenting time with J.B. every Saturday and Sunday. Gradually, M.B.’s parenting time with J.B. expanded to include Friday, Saturday and Sunday. [ 27 ] J.B. attended the Strong Start preschool program at [ omitted for publication ] school in Houston commencing September 2015.

He was also registered in [omitted for publication] School’s Kindergarten class commencing September 2016. [ 28 ] On November 20, 2015, C.B.B. commenced a relationship with B.J., who resides on a farm on [omitted for publication], near [omitted for publication], B.C, approximately 46 kilometres east of Prince George, B.C. [ 29 ] B.J. is 41 years old and has three children of previous relationships. B.J.’s son C.J. is 16 years old and resides with his mother in Parksville, B.C. B.J.’s sons X.J. and L.J., ages 13 and 11 respectively, live with their mother in Hudson Hope, B.C.

B.J. has parenting time with his sons on his farm at least once per month, with extended visits during the summer, spring and Christmas school breaks. [ 30 ] In March 2016, C.B.B. told M.B. she was considering moving. He told her he was opposed to her relocating J.B. from Houston. [ 31 ] In mid-April 2016, C.B.B. learned she was pregnant with B.J.’s child. At that time she decided to move to the Farm to live with B.J.

In her September 20, 2016 Affidavit C.B.B. stated she later developed complications with her pregnancy. [ 32 ] On April 24, 2016, C.B.B. advised M.B. in writing of her intention to relocate J.B. to [omitted for publication]. A copy of this notice is attached as Exhibit “E” to M.B.’s August 23, 2016 Affidavit.

Upon receiving the notice, M.B. told C.B.B. he opposed her relocating J.B. to [omitted for publication]. [ 33 ] In May 2016, C.B.B. and B.J. became engaged to be married. [ 34 ] M.B., through legal counsel, prepared and filed the May 19, 2016 Application opposing C.B.B. relocating J.B. to [omitted for publication]. M.B.’s previous legal counsel (Mr.

Blanche of Giddings & Company) attempted to serve C.B.B. with a copy of the May 19, 2016 Application by registered mail, however, it was returned to his office indicating C.B.B. had not picked it up. [ 35 ] Before M.B.’s counsel could effect service of the May 19, 2016 Application, C.B.B. advised M.B. she had changed her mind about moving. On June 4, 2016, C.B.B. sent M.B. a text message indicating she had ended her relationship with B.J. and that she no longer intended to relocate to [omitted for publication].

C.B.B.’s text message stated: Hey probably the wrong time to strike up this conversation but B.J. turned full psycho on me and I decided not to continue anything with him. So I’m staying in Houston now. We can talk about it more on Monday or whatever. I just thought I’d let you know. . . . I’m sorry I made you go through the legal shit for nothing . . . but it’s for the best. I feel like a fool thinking taking J.B. away from his family to live with that freak was a good thing. Don’t get me wrong he was great with J.B.. There was no danger there. I’ll tell you more later.

Just know I’m sorry. [ 36 ] C.B.B. testified that she and B.J. were fighting about her smoking while she was pregnant. She became angry and they started a text message fight and she over-reacted. [ 37 ] A copy of this text message is attached as Exhibit “F” to M.B.’s August 23, 2016 Affidavit. [ 38 ] As a result of receiving this message, M.B. did not proceed with his May 19, 2016 Application at the time. [ 39 ] Shortly after sending M.B. the text message reproduced above, C.B.B. reconciled with B.J. and resurrected her decision to move to [omitted for publication] to live with B.J.

She did not advise M.B. she and B.J. had reconciled nor did she tell him she intended on relocating J.B. to [omitted for publication]. [ 40 ] M.B. began to suspect that C.B.B. and B.J. and reconciled. M.B. asked her not to have J.B. around B.J. until she was sure about the relationship. C.B.B. nevertheless took J.B. to B.J.’s farm in June 2016 and refused to tell M.B. of J.B.’s whereabouts: Exhibit G of M.B.’s August 23, 2016 Affidavit. [ 41 ] C.B.B. began moving her belongings into B.J.’s residence in July 2016 and they began living together in August 2016.

Between the time C.B.B. met B.J. on November 20, 2015, and the time she moved to the Farm in August 2016, C.B.B. and B.J. spent most of their time together at the Farm. C.B.B. says she would go to the Farm for a few days, almost every week. Every so often, B.J. also came to visit C.B.B. in Houston. [ 42 ] M.B. believed C.B.B. intended to move to [omitted for publication] with J.B. and retained legal counsel to address his concerns. On July 16, 2016, M.B. hand delivered to C.B.B. a letter from his legal counsel, then Mr.

Zachary Blanche of Giddings & Company, advising C.B.B. that if she intended to move J.B. to [omitted for publication], she would need to provide M.B. with a new letter informing him of when she intended on moving. Mr. Blanche also confirmed that M.B. would oppose any attempt by C.B.B. to move J.B.: Exhibit “H”, M.B.’s August 23, 2016 Affidavit. [ 43 ] On August 18, 2016, C.B.B. filed a Notice of Family claim in the Supreme Court of British Columbia, Prince George Registry: Exhibit 7, Tab 7, Exhibit B. C.B.B. sought among other things: (

a) an order for divorce; (

b) an order respecting a child; and (

c) an order

relating to family property and family debt. With respect to the proposed arrangement for parenting, C.B.B. proposed the following: a. she would be J.B.’s “full custodial parent”; b. she and M.B. would have joint guardianship/parenting time with J.B.; c. J.B.’s primary residence would be with C.B.B. in [omitted for publication], B.C.; d. M.B. would have parenting time with J.B. every other weekend from 4:00 p.m. on Friday to 5:00 p.m. on Sunday.

If the weekend included a statutory holiday, M.B.’s parenting time would be extended to include that holiday; e. unless otherwise arranged the parties would transition J.B. in Fraser Lake, B.C.; f. M.B. would have parenting time with J.B. for one month of the school summer break; and g. M.B. would have parenting time with J.B. for all Christmas days, Easter days and Birthdays that he chooses and makes arrangements to have J.B. present. [ 44 ] The divorce proceedings C.B.B. initiated are presently stalled.

C.B.B. said they did not go further than the judicial case conference. [ 45 ] When he swore his August 23, 2016 Affidavit, M.B. had not received any notice from C.B.B. of her intention to relocate J.B. to [omitted for publication].

He realized C.B.B. had moved when he found the rental home in which she had been living vacant and subsequently received the Notice of Family Claim (Form 3) setting out C.B.B.’s new address as “[omitted for publication] ” . [ 46 ] Up until the time C.B.B. relocated him to [omitted for publication], J.B. had spent his entire life in Houston, B.C. [ 47 ] While residing in [omitted for publication] with J.B., C.B.B. returned J.B. to Houston to have parenting time with M.B. for two to three days every week.

This is a distance of roughly 353 km and takes roughly four to four and one-half hours to drive. [ 48 ] M.B. says that after P.A. died, J.B. came to live with him for a time. M.B. took time off work so he could care for J.B. After about three weeks, C.B.B. began to have visits with J.B. Gradually C.B.B.’s time with J.B. increased until she and C.B.B. had roughly equal parenting time.

Between December 2015 and July 2016, M.B. had parenting time with J.B. as follows: a. 17 days in December 2015, of which 9 were transition days; b. 18 days in January 2016, of which 7 were transition days; c. 14 days in February 2016, of which 7 were transition days; d. 14.5 days in March 2016, of which 8 were transition days; e. 13 days in April 2016, of which 8 were transition days; f. 21 days in May 2016, of which 5 were transition days; g. 16 days in June 2016, of which 9 were transition days; h. 17 days in July 2016, of which 8 were transition days; See: Exhibit “B” to M.B.’s August 23, 2016 Affidavit. [ 49 ] As set out above, M.B. filed the August 23, 2016 Notice of Motion seeking an order requiring C.B.B. to return J.B. to Houston, B.C. [ 50 ] C.B.B. enrolled J.B. in [omitted for publication] Elementary School for September 2016, without M.B.’s knowledge or consent. [ 51 ] On October 21, 2016, Judge Birnie ordered C.B.B. to return J.B. to Houston by October 29, 2016, which she did.

Since this order, J.B. has been living primarily with M.B. in Houston, B.C. J.B. spends every second weekend with C.B.B. at B.J.’s farm. M.B. and C.B.B. often meet in Fraser Lake, B.C. to transition J.B. [ 52 ] For the past ten months, J.B. has been residing primarily with M.B. and his new partner, A.S. They live in a four bedroom home on eight acres on the outskirts of Houston B.C., a community in which M.B. has lived since he was four years old. [ 53 ] C.B.B. has parenting time with J.B. every second weekend. She has also had parenting time on the Easter weekend and during the 2017 school summer break.

C.B.B.’s current circumstances: [ 54 ] C.B.B. now lives with B.J. on his 317 acre farm (the “Farm”) bordering the [omitted for publication] River. The Farm is near [omitted for publication] and approximately 46 kilometers from downtown Prince George, B.C. It is accessible via a forest service road. B.J.’s parents also live on the Farm intermittently and are currently building a residence approximately 200 meters from B.J.’s residence. B.J. has lived on the Farm for 12 ½ years. There he keeps a herd of 17 yaks and four horses, a dozen chickens, two dogs and two cats.

In her September 22, 2016 Affidavit, C.B.B. describes B.J.’s farm as follows:

We live on a 317-acre farm along the banks of the Willow River and raise various farm animals such as chickens, pigs, horses, and the primary livestock is a small herd of Tibetan Yak. The farm is run via a combination of solar and wood gas energy stored in batteries for immediate use when needed. There is also a backup diesel generator. Water is continuous flow year round from the river and drinking water is supplied via the community natural spring. There have been countless power outages in the area and we have remained in full operation during those outages.

Bryan’s parents also live on the property and are wonderful people who have a good relationship with J.B. and he them. They are distinct and separate from our commitment to each other and that is a welcome relief in my life. We get along great. [ 55 ] B.J. describes himself as a multi-facetted contractor. He has worked in commercial transport for 19 years and his primary occupation is hauling logs, five days per week from November to March and three days per week in the summer. B.J. also has the contract for maintaining the Forest Service Road by which is farm is accessed.

Although some Forest Service Road maintenance is done in the summer, much of the work is in the spring and fall. In the winter, B.J. must also plough and sand. In the summer, B.J. works on the farm, haying, tending his livestock and harvesting wood for winter. The farm also produces a hay crop which B.J. harvests to feed his animals and to sell. He also sells some meat, eggs and animal fibre.

B.J. performs his own maintenance on the farm buildings and repairs on his equipment, which include a Champion grader, International sand and plough truck, dump truck, excavator, a 215 Caterpillar excavator and two tractors. [ 56 ] C.B.B. and B.J.’s infant son, C.E.J. was born at full term on December [omitted for publication]. J.B. is gentle with and loving to C.E.J. and looks forward to seeing his little brother. J.B. has not expressed any jealousy or frustration with C.E.J.; rather, tries to play with him. [ 57 ] B.J., his parents and his sons have developed a good relationship with J.B.

B.J. coordinates his sons’ visit to the farm to coincide with J.B.’s. The children play games such as charades and hide-and-seek. J.B. is closest to L.J. because they are closer in age. [ 58 ] Since moving to the Farm, C.B.B. obtained training as an environmental monitor and is now a certified collection technician for water and ground samples. C.B.B. also guides other environmental monitors who take samples quarterly. This engages C.B.B. every three months for two to five days. When she works, C.B.B. earns $300 per day.

In the future C.B.B. plans to enrol in University of Northern British Columbia and complete four year degree in environmental studies. [ 59 ] It is apparent to me that B.J. and C.B.B. work very hard. When driving the logging truck, B.J. gets up between 2:00 and 4:00 a.m. and returns home between 2:00 and 4 p.m. in the afternoon. B.J. estimates that when hauling logs he works 12 to 13 hours per day and sleeps for a minimum of nine hours per day. B.J. also spends five to six hours working on the Farm each weekend. [ 60 ] C.B.B. cares for C.E.J., who is now six months old, and J.B. when he is present.

She takes responsibility for the household chores and helps tend the animals. C.B.B. says her household, including J.B. when he is present, wakes early and goes to bed early. [ 61 ] J.B. enjoys the outdoor farm live, including helping his mother and B.J. with the various chores on the Farm, such as sweeping and gathering wood. J.B. is particularly fond of those chores which are animal related, such as collecting eggs, feeding the cat and bottle feeding the calf. J.B. also enjoys recreational activities such as riding his bike and swimming in the [omitted for publication] River, which is 700 yards from the Farm.

Sometimes J.B. goes swimming in the pool in Prince George. C.B.B. also takes J.B. to the farmers market. If J.B. were to live on the Farm, C.B.B. would enrol him in a swimming club in Prince George and on a baseball team in [omitted for publication] River. [ 62 ] If J.B. were to live with C.B.B. and B.J. he would attend the [omitted for publication] Elementary school. It is a small school which J.B. attended for six to eight weeks in the fall of 2016, before Judge Birnie ordered his return to Houston, B.C. The school offers classes from Kindergarten to Grade 7. It has only 39 students in total.

Kindergarten, Grade 1 and 2 are in one class. There were three students in J.B.’s 2016 K to 2 class. B.J. and C.B.B. say that for the brief time he was there, J.B. found going to the [omitted for publication] Elementary School a positive experience. [ 63 ] The [omitted for publication] Elementary School is 12 kilometres from the Farm. The bus stop is at the end of the drive way which C.B.B. says is a 10 minute drive from the farmhouse. [ 64 ] B.J. says there is satellite internet and cellular phone service at the Farm, although no television or video games. B.J. has a laptop which has access to Skype.

Although the Farm has no landline, and both B.J. and C.B.B. have cellular phones. They say there is no impediment to J.B., while at the farm, contacting his father by Skype or phone. M.B., however, says that given his difficulties he has experienced trying to contact C.B.B. he believes the cellular service at the Farm is sporadic. C.B.B. described the cell service on the Farm as inconsistent and “patchy”; sometimes they get one bar, sometimes two, sometimes none. [ 65 ] The Farm is not serviced by public utilities; however, B.J. generates electricity with solar panels and a backup diesel generator.

He has a 300 gallon propane tank which supplements the wood heat used to heat the residence in winter. [ 66 ] B.J.’s older boys visit once per month during the school year, and for extended periods during the school holidays. This means there are times when there are five children in the Farmhouse, which has only two bedrooms. C.B.B. says they get by with extra mattresses.

Since she has moved to the Farm, most members of C.B.B.’s extended family in Houston have come to visit her. [ 67 ] M.B. and A.S. testified there were times when J.B. returned from C.B.B.’s care in a condition indicating he has gone several days unbathed and without fresh clothing. J.B. has mentioned to M.B. the Farm has an outhouse, no bathtub and that “mommy doesn’t have a washing machine and . . . does laundry in the sink.” J.B.’s comments indicate the Farmhouse is without indoor plumbing.

Although B.J. or C.B.B. reference the availability of a natural spring on the farm, neither testified the Farmhouse did have indoor plumbing. [ 68 ] C.B.B. is partially dependent on B.J. for her livelihood. B.J. earns an annual income of $46,000 to $50,000 per year. After paying for child support, motor vehicles, equipment, fuel, Farm and livestock expenses, B.J. is left with very little income for household expenses. C.B.B. says the expenses relating to transitioning J.B. from the Farm to Houston was never an issue for her. C.B.B. receives

$825 per month from P.A.’s pension plan as a survivor benefit for herself and J.B. Until November 2016, M.B. paid C.B.B. child support. Since then M.B. pays C.B.B. $100 per month to help her with transitioning expenses.

C.B.B. pays for her own cell phone, but does not otherwise contribute to the Farm or household expenses. [ 69 ] C.B.B. and B.J. often travel to Houston to transition J.B. as well as to spend time with C.B.B.’s large extended family, with whom she has a close relationship. [ 70 ] C.B.B. and B.J. regularly attend the [omitted for publication] River Gospel Chapel and when he is on the Farm, J.B. accompanies them. [ 71 ] C.B.B. would like to raise J.B. on the Farm.

She believes there are more opportunities for J.B. in the Prince George area academically, although J.B. would attend [omitted for publication] Elementary School for his primary education. C.B.B. favours the small class size which the [omitted for publication] Elementary School has to offer. M.B.’s concerns about C.B.B.’s parenting of J.B. [ 72 ] In his direct and affidavit evidence M.B. expressed the following concerns about C.B.B.’s parenting of J.B.: a. C.B.B.’s historical abuse of alcohol; b. C.B.B. driving a motor vehicle under the influence of alcohol; c. C.B.B. smoking in the vehicle in J.B.’s presence; d.

C.B.B. very quickly introducing J.B. to any men she was dating; e. C.B.B.’s history of cohabitating with a new partner shortly after meeting him. For example, C.B.B. moved in with a man a month before she started dating M.B., and after a week of dating, moved in with M.B. Within two weeks of their separation C.B.B. moved in with P.A. P.A. died in October 2015 and C.B.B. commenced a relationship with B.J. in November 2015. By January 2016, C.B.B. started spending an increasing amount of time at B.J.’s farm. f. In the past, C.B.B. has concealed from M.B. where she was and what she was doing with J.B.

For example, after J.B. graduated from the Strong Start program on June 13, 2016, C.B.B. told M.B. she was taking J.B. to Vancouver to visit her cousin and that she was going to camp along the way. When M.B. texted C.B.B. while she and J.B. were in transit, C.B.B. said she had decided to stay in Prince George. When he asked her if they were staying at B.J.’s farm C.B.B. refused to respond. When M.B. told her he wanted to know where J.B. was, C.B.B. responded, “with his mother”: Exhibit 7, Tab 5, p. 4, paras. 22 and 23; pp. 34 - 37; g.

C.B.B. also concealed from M.B. the fact she and B.J. reconciled and she renewed her plans to move to [omitted for publication] with J.B. This was particularly concerning because in her June 4, 2016 text message, C.B.B. left M.B. with the impression that B.J. was psychologically unstable; h. C.B.B. is not frank about her current circumstances. She has discouraged M.B. from going to the farm. When he has offered to transport J.B. directly to the farm, C.B.B. insists he meet her on the [omitted for publication] Forest Service Road or in Prince George; i.

C.B.B. easily loses her temper as evidenced by her various text messages: Exhibit 6, Tab 6(2); j. C.B.B.’s arrangements for parenting time involve lengthy transition periods in which J.B. will be in a motor vehicle travelling between the Farm and Houston; and k. C.B.B. has had accidents in the past while driving in the winter: Exhibit 2. [ 73 ] Not surprisingly, C.B.B. says M.B.’s concerns are without merit. In particular, she denies: (

a) abusing alcohol; (

b) driving while under the influence of alcohol; (

c) smoking in J.B.’s presence; (

d) frequently introducing J.B. to men she is dating. She describes M.B.’s attempts to have her tell him of J.B.’s whereabouts in June 2016, as “a demanding control tactic” she finally “stood up to”: Exhibit 7, Tab 7. C.B.B. also says that when she sent M.B. the June 4, 2016, text, she was angry with B.J. and over-reacted. She did not intend M.B. to conclude that B.J. was mean to J.B., because in fact B.J. was very good to J.B. [ 74 ] Notwithstanding the foregoing, M.B. has no serious concerns for J.B.’s well-being while in C.B.B.’s care, be it at the Farm or in a vehicle.

Initially, M.B. was alarmed about B.J. because of the virulence of C.B.B.’s June 4, 2016 text message. M.B. has since come to know B.J., and those concerns have abated. M.B.’s circumstances [ 75 ] M.B. resides with A.S. in a four bedroom home situated on eight acres located on [omitted for publication] Road, a three minute drive from Houston, B.C. J.B. has his own bedroom. M.B. and A.S. have no other children. M.B. has provided the court with photographs of their home and its environs.

J.B. loves animals and M.B. and A.S. have one dog and three cats. [ 76 ] M.B. resides in the same community as J.B.’s paternal and maternal grandparents, aunts and uncles and cousins. M.B. has set out the name of those relatives in his Affidavit sworn August 23, 2016: Exhibit 7, Tab 5, pp. 5-6. J.B. spends much time with M.B.’s relatives and some time with C.B.B.’s relatives, all of whom reside in Houston. J.B. has also developed a bond with A.S.’s family, who live in Terrace. They often stay with at the [omitted for publication] family cabin on the river.

A.S.’s sister is moving to Smithers and J.B. has become friends with A.S.’s nephew N., who is six. [ 77 ] M.B. and A.S. have a number of friends in Houston who also have children. J.B. is a friend with many of those children. He has also developed friends with some of his classmates.

[ 78 ] M.B. is an entrepreneur. He owns, in whole or in part, Aurora Towing Ltd. a Houston tow-truck company. He has a Class 1A licence and estimates he has driven two million miles in his career. He also has other businesses, such as a snow removal and landscaping business. He also has a bobcat, dump truck and trailer he rents. A.S. also works at [omitted for publication] four days per week. [ 79 ] When M.B. is working, A.S. or M.B.’s mother (H.M.) cares for J.B. A.S. has a good relationship with J.B., and spends time with him in various activities, including gardening and baking cookies.

J.B. has a few little household chores, such as feeding the animals, tidying his room and putting away his laundry. [ 80 ] Although he works hard, M.B. spends quality time with J.B. each day. He wakes J.B. in the morning, feeds him breakfast, packs his lunch and drives him to school. When his

schedule permits, M.B. picks J.B. up after school and takes him home. Sometimes they stop off for ice cream or treats if J.B. had a good day at school. M.B. is always home for dinner. He spends one-on-one time with J.B. after dinner, playing with him, reading him bedtime stories, and caring for his personal hygiene, such as bathing, teeth brushing, etc. [ 81 ] M.B. and J.B. spend time together engaged in a host of recreational activities, both indoor and outdoor, in winter and summer.

These include biking, quading, seadooing, camping, hiking, tobogganing, sledding, cross-country skiing, swimming, bowling, baseball, or going to Steelhead park to play hide-and-seek. M.B. sometimes outfits J.B. in a hardhat, reflector vest, gloves and boots and takes him to work in his tow truck which J.B. enjoys.

J.B. also likes to assist with outdoor chores such as watering and lawn maintenance. [ 82 ] Although a small community of 1,500 people, Houston has a swimming pool, bowling alley, baseball diamond, soccer pitches and hockey arena. [ 83 ] J.B. attended Kindergarten in [omitted for publication] Elementary School in Houston in 2016-2017. If he were to remain living with his father, J.B. would attend Grade [omitted for publication] at this same school. J.B. has friends in Houston, who he sees regularly. He has schoolmates who are both his friends and relatives.

C.B.B.’s concerns about M.B.’s parenting of J.B. [ 84 ] In her affidavit and oral evidence C.B.B. expressed the following concerns about M.B.’s parenting of J.B.: a. M.B. left J.B. in what she considered as unsafe circumstances when he as infant; b. M.B. works too much and therefore has little time to spend with J.B. [ 85 ] In her affidavit C.B.B. states: “I reflect deeply on the safety concerns I have concerning M.B.’s parenting, yet I choose to allow him to have his parenting time as he wants.” The safety concerns she particularizes in her affidavit are minor incidents which occurred over five years ago.

M.B. denies any such incidents occurred. [ 86 ] When asked at trial, C.B.B. said she had no concerns about J.B.’s safety and well-being when he is with M.B. [ 87 ] M.B. acknowledges he works full-time, but maintains he is more than capable of taking care of J.B. on a full-time basis. He denies elevating his work over his family. He states: Nothing is more important to me than J.B., but at the same time I have to work to provide for J.B. I feel it is unfair that C.B.B. uses the fact that I work against me when she rarely works. Exhibit 7, Tab 8, p. 6.

J.B. [ 88 ] By all accounts J.B. is a happy, inquisitive little boy who loves the outdoors and outdoor activities and animals. He also loves music, cooking and gardening. He does, however, show signs of apprehension such as when he attempts a new recreation activity and anxiety by chewing on his coat collar and mittens. [ 89 ] C.B.B. says that since J.B. left the Farm he is no longer his usual polite self. He is more rebellious, a little angry; he has lost respect for authority and rules.

She has noticed he has behavioural issues; he has tried to kick her when he is frustrated. [ 90 ] J.B. is struggling in school and may have a learning disability. M.B. and A.S. have met with J.B.’s teacher and the school principal to discuss requisitioning a psychological-educational assessment. J.B. also appears to have speech difficulties and needs to be assessed by a speech language pathologist. I understand J.B. is scheduled to see the speech language pathologist when she returns from her extended holiday.

Communication [ 91 ] Until C.B.B. moved to the Farm, she and M.B. worked reasonably well in co-parenting J.B. Their conflict was minimal and manageable. The text messages forming part of the trial exhibits show M.B. and C.B.B. were usually respectful and supportive of each other. Moreover, they appear to have ordinarily trusted one another with J.B.’s care and well-being. [ 92 ] B.J. has seen J.B. with his father and agrees they are well-bonded and connected. [ 93 ] C.B.B. says that she has not communicated with J.B.’s school in Houston because she relies on M.B. to keep her updated.

Legislation [ 94 ] The Family Law Act (“ FLA ”) provisions relating to relocation are set out in s. 46 and Division

Section 46 only applies if

there is no written agreement or order respecting parenting arrangements which apply in respect of a child. In this case, the parties have a Separation Agreement. Accordingly, the provisions of Division 6 of the FLA are engaged. For ease of reference have reproduced Division 6 below. Division 6 — Relocation Definition and application 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. Notice of relocation 66

(1) Subject to subsection (2), a child's guardian who plans to relocate himself or herself or a child, or both, must give to all other guardians and persons having contact with the child at least 60 days' written notice of (

a) the date of the relocation, and (

b) the name of the proposed location. . . . . Resolving issues arising from relocation 67

(1) If notice is required under

section 66 [notice of relocation] , after the notice is given and before the date of the relocation, the child's guardians and the persons having contact with the child must use their best efforts to cooperate with one another for the purpose of resolving any issues relating to the proposed relocation.

(2) Nothing in subsection (1) prevents (

a) a guardian from making an application under

section 69 [orders respecting relocation] , or (

b) a person having contact with the child from making an application under

section 59 [orders respecting contact] or 60 [changing, suspending or terminating orders respecting contact] , as applicable, for the purpose of maintaining the relationship between the child and a person having contact with the child if relocation occurs. Child may be relocated unless guardian objects 68 If a child's guardian gives notice under

section 66 [notice of relocation] that the guardian plans to relocate the child, the relocation may occur on or after the date set out in the notice unless another guardian of the child, within 30 days after receiving the notice, files an application for an order to prohibit the relocation. 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 timewith 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.

(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. If relocation permitted 70(1) If the court makes an order under

section 69 [orders respecting relocation] that permits a child's relocation, the court may makeany of the following orders: (

a) subject to subsection (2) of this section, if the order made under

section 69 affects an agreement or order that allocates parentingarrangements between the relocating guardian and another guardian, an order under

section 45 [orders respecting parentingarrangements]or 47 [changing, suspending or terminating orders respecting parenting arrangements], as applicable; (

b) any order necessary to ensure that the relocating guardian complies with the terms of the order permitting relocation, including anorder to do one or more of the following: (

i) give security in any form the court directs; (ii) transfer specific property to a trustee named by the court.

(2) In making an order under subsection (1), the court must seek to preserve, to a reasonable extent, parenting arrangements under theoriginal agreement or order. [95] The Court must interpret the FLA consistent with the applicable principles of statutory

interpretation. In Bell Express VuLimited Partnership v. Rex, 2002 SCC 42 , the Supreme Court of Canada held that a contextual approach must be taken tostatutory

interpretation. Courts are to consider the entire context of statutory words and phrases and read them in harmony with theobject of the legislation. [96] The following passage from Driedger on the Construction of Statutes, 3rd ed. (1994) is often cited: An appropriate

interpretation is one that can be justified in terms of (

a) its plausibility, that is, its compliance with the legislative text (b)its efficacy, that is, its promotion of the legislative purpose and (

c) its acceptability, that is, the outcome is reasonable and just. [97] Also relevant is s. 8 of the

Interpretation Act, RSBC 1996, c 238, which states: Enactment remedial 8 Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and

interpretation asbest ensures the attainment of its objects. Issue #1: Was C.B.B. required to provide further written notice of her intention to relocate J.B. after June 4, 2016? [98] I understand from Mr. Hutchinson’s submissions, C.B.B. concedes that she was obligated and failed to provide M.B. withfurther written notice of her intention to relocate J.B. after having texted M.B. that she was not moving. I note, however, her affidavitfiled September 22, 2016 (Exhibit 7, Tab 7), at paragraphs 27, 32 to 34, C.B.B. discusses matters relating to the issue of providing noticeof her intention to relocate.

I will address this issue in the event it remains alive. [99] M.B. received C.B.B.’s notice of her intention to relocate J.B. from Houston to [omitted for publication] on April 24, 2016. Asa result he engaged counsel who commenced legal proceedings to oppose the move. On June 4, 2016, C.B.B. notified M.B. in nouncertain terms she had changed her mind about moving to [omitted for publication] to live with B.J. She referred to B.J. in that text as a“freak” who turned “full psycho” on her.

She said she felt like a fool thinking of taking J.B. away from his family. (Exhibit 7, Tab 5, pp.3, 32, 33.) Although C.B.B. and B.J. reconciled after a week, she never disclosed this fact to M.B. [100] Upon receiving C.B.B.’s June 4, 2016 text message, M.B. quite reasonably notified his counsel that it was unnecessary tocontinue the legal proceedings opposing C.B.B.’s move because she had changed her mind. [101] When he divined that C.B.B. had reconciled with B.J. and planned to move with J.B. to live in [omitted for publication], M.B.

hand delivered to her a letter from his counsel dated July 16, 2016, advising C.B.B. that if she intended to move, she needed to providehim with written notice of that intention and he would oppose any attempt to relocate J.B. [102] C.B.B. says she took Mr. Blanche’s July 16, 2016 letter to a local lawyer (not Mr. Hutchinson) who advised her to ignore it andapply for a divorce. With this advice, C.B.B. relocated and commenced divorce proceedings in Prince George Supreme Court Registry. C.B.B. said the lawyer she consulted advised her she did not have to give M.B. further notice of her intention to move to [omitted forpublication]. [103] Upon considering the principles of statutory

interpretation set out above, I find that in the circumstances C.B.B. was required togive M.B. written notice of her intention to relocate J.B. after June 4, 2016. To rule otherwise would render

Section 66 meaningless,contrary to the principles of statutory

interpretation. A parent seeking to relocate could simply serve notice on the other parent, andbefore the 60 days expired, rescind the notice. The non-relocating parent would be misled into believing the relocation was no longer anissue and fail to oppose the relocation in a timely manner. Issue #2: Did the parties have substantially equal parenting time? [104] M.B.’s records indicate that since P.A. died in October 2015, that M.B. and C.B.B. maintained a shared parenting regime. In hercross-examination C.B.B. agreed that M.B. had J.B. 40 to 50% of the time. In his closing submissions, Mr.

Hutchinson submitted that in2016, the parties’ parenting time with J.B., if not equal, was substantially equal. [105] Since he was returned to Houston by court order, J.B. has lived primarily with M.B. C.B.B. has parenting time with J.B. everyother weekend and as agreed on school holidays. [106] I find that from October 4, 2015, the date on which P.A. died, until Judge Birnie ordered J.B. returned to Houston, M.B. andC.B.B. had substantially equal parenting time.

After November 1, 2016, the parties did not have equal parenting time because J.B. wasprimarily in M.B.’s care. [107] Because the parties had equal parenting time, C.B.B. must satisfy the court the criteria set out in s. 69(5) of the FLA asreproduced above. Issue # 3: Was C.B.B.’s move to [omitted for publication] made in good faith? [108] Section 69(5) requires C.B.B. to show her proposed relocation of J.B. was made in good faith. Section 69(6) of the FLA sets outsome of the factors a court must consider as to whether a proposed relocation is made in good faith. Mr.

Hudson submits C.B.B.’sproposed relocation was not made in good faith with respect to all the factors set out in s. 69(6). I will address each in turn. Section 69(6)(a): the reason for the proposed relocation [109] C.B.B. relocated to [omitted for publication] to live with B.J. on his Farm in the summer of 2016, because she loved him andwas pregnant with his child. They continue to live together on the Farm with their six month old son, C.E.J. [110] El Feky v. Tohamy, 2010 ONCA 647 was a relocation case before the Ontario Court of Appeal.

At para. 33, ChiefJustice Rosenberg defines good faith in the context of the Family Law Act, RSO 1990, c F.3, to mean “acting honestly and with noulterior motive. [111] In L.J.R., Mr. Justice Bretton made the following observations with respect to s. 69(6): 71. Good faith is a subjectively held state of mind. Yet, some of the above characteristics are undoubtedly objective. I find that to theextent a factor listed in s. 69(6) is objective, a positive or negative finding suggests an inference that the relocating guardian eitherpossessed or did not possess the required subjective good faith. 72.

The language of s. 69(6) makes it clear that the above four considerations are not an exhaustive list, but those considerations doestablish a tone for the concept of good faith in Division 6 relocation proceedings. They are, in my view, consistent with a commonunderstanding of the phrase. [112] In Pepin v. McCormack, 2014 BCSC 2230 , Mr. Justice Ken stated at para. 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. [113] I accept C.B.B. relocated for the reasons she espoused and not for any ulterior motive such as trying to frustrate M.B.’s parentingtime with J.B. Section 69(6)(b): whether the relocation is likely to enhance J.B. or C.B.B.’s general quality of life [114] I find C.B.B.’s relocation to the Farm has and is likely to continue to enhance C.B.B.’s quality of life based on the followingevidence: a.

C.B.B. has lived on the farm now for over a year. She appears content with the pastoral lifestyle available at the Farm; b. C.B.B. has benefited financially because B.J. supports her with income he earns from his various jobs; c. C.B.B. was able to obtain certification and work as an environmental monitor;

d. C.B.B. intends on going to UNCB in Prince George to pursue a four year degree in environmental studies. C.B.B. can commute toUNBC from the Farm; e. C.B.B.’s life is far more stable and fulfilling than it had been prior to her move; f. C.B.B. and B.J. are in love and intend to marry when C.B.B. is divorced; g. C.B.B. and B.J. have an infant son they are raising together; h. C.B.B. has established relationships with B.J.’s family, including his parents and sons from previous relationships; and i.

C.B.B. cannot return to Houston without significant hardship to herself and her new family with B.J. [115] I find C.B.B.’s relocation to the Farm has increased her emotional wellbeing and will likely continue to so. I also find C.B.B.has benefited from the financial and educational opportunities that have and will become available as a result of her relocation. [116] The question of whether the proposed relocation is likely to enhance J.B.’s quality of life is thorny. Counsel for C.B.B. refers tocases which suggest a happy parent makes for a happy child.

I accept the premise that J.B. would benefit from circumstances whichenhanced his parent’s emotional well-being. Still, I question whether J.B.’s best interests are so inextricably tied to C.B.B.’s. In anyevent, as Madam Justice Prowse states in Stav v. Stav (cited in De Jong v. Gardner, 2013 BCSC 1302 at para. 83), “that could be saidabout either of the parents in this case and does not further the analysis.” Section 69(6)(c): whether notice was given under

section 66 [117] C.B.B. decided to move to [omitted for publication] and live with B.J. on the Farm in mid-April 2016 when she discovered shewas pregnant with his child. She resiled from this decision when she and B.J. fought over her smoking while pregnant. They quicklyreconciled and C.B.B. resurrected her plans to live with B.J. and take J.B. with her.

C.B.B. testified although she did not tell M.B. of herrenewed plans to move to the Farm with J.B. she maintains M.B. knew she was moving because she assumed he saw her stuff in hertruck. [118] I do not believe C.B.B. honestly believed she had right to relocate J.B. to [omitted for publication] without M.B.’s consent or acourt order, otherwise she would have simply told M.B. of her plans.

Moreover, I am persuaded that C.B.B.’s refusal in June 2016 to tellM.B. where she had taken J.B. was a deliberate attempt to conceal the fact she had reconciled with B.J. and was returning to the Farm.(Exhibit 7, Tab 5, p. 4, para. 23, exhibit

G) I reject C.B.B.’s assertion she was simply standing up to M.B.’s “demanding control tactics”.(Exhibit 7, Tab 7, p. 6, para. 30) The evidence before this court, including M.B. and C.B.B.’s text messages entered as exhibits, do notdepict M.B. as someone who was demanding or controlling. [119] I do not believe that C.B.B. had serious safety issues with M.B.’s parenting as asserted in her affidavit sworn September 22,2016: Exhibit 7, Tab 7, p. 6. Her many requests to have M.B. care of J.B. for extended periods contradicts such this claim.

Moreover,C.B.B. testified on June 13, 2017, that she had no concerns about J.B.’s safety and wellbeing when he is with his father. [120] The lawyer C.B.B. says she consulted in the summer of 2016 is known to this court as a senior member of the family bar.

I donot believe that such a lawyer, if fully informed of the circumstances, including the existence of the Separation Agreement, would tellC.B.B. she could relocate J.B. to [omitted for publication] without notice to M.B., without his consent or without a court order. [121] A parent who wishes to relocate cannot gain an advantage by simply relocating in advance in the spirit that it is better to seekforgiveness than ask permission. There are consequences for failing to comply with the relocation provisions in the FLA. (See. L.J.R. v.S.W. R., 2013 BCSC 1344, paras. 73 fwd) Section 69(6)(

d) Restrictions on relocation contained in a written agreement or order [122] M.B. and C.B.B. had a Separation Agreement requiring them to consult about where J.B. will reside and with whom he willreside and associate: Exhibit 1, paras. 18 and 19. Although there is no express provision prohibiting a parent from relocating J.B., bydoing so without M.B.’s knowledge or consent, C.B.B. breached the consultation provisions of the Separation Agreement. Conclusion on Issue 3: Was C.B.B.’s move to [omitted for publication] made in good faith? [123] Section 69(6) provides an enhanced definition of “good faith”.

It encompasses far more considerations than C.B.B.’s motivesfor relocating. In assessing all the factors set out in s. 69(6) I do not find C.B.B. acted in good faith when she relocated J.B. to the Farmin August 2016. She uprooted J.B. from his community in which he has lived with his family, extended family and friends since birth. He was scheduled to commence Kindergarten in [omitted for publication] Elementary School in September 2016. His classmates wouldlikely have been some of the children with whom he attended the Strong Start program.

In moving J.B., C.B.B. significantly diminishedhis contact with M.B., with whom he had a close and loving relationship, as well as with his extended family. As Justice Bretton notedin D.G.S. v. J.D.S., 2014 BCSC 183 , at para. 89: 89. . . . The children were removed from all of their existing familial and social connections. While relationships with extendedfamily can be maintained from a distance, it materially changes those relationships. . . [124] I agree with Mr.

Hudson, that C.B.B. did not relocate with J.B. in order to enhance J.B.’s interests, although I would add, exceptto the extent J.B.’s interests would be enhanced indirectly by C.B.B.’s improved financial and emotional circumstances. [125] I find the comments of Madam Justice Smith, referred to by Justice Kent in De Jong v. Gardner at para. 85 apposite: It appears that [Ms. A.] has persuaded herself that she is entitled to do what she did in moving the children abruptly out of theircommunity, extended family and school and away from their father without any real discussion with the children’s father, let alone

seeking his consent… . . . [t]he matter of the move does not indicate a parent who is wholly focused on the best interests of the children. [126] I do not believe that C.B.B. gave due consideration to the impact relocating J.B. to the Farm would have on his emotional well-being or to the potential effect it would have on his relationship with his father and extended family who have a significant role in hislife. C.B.B. justified her actions on the basis she maintained the parenting time

schedule set out in the Separation Agreement. By theSummer of 2016, however, that

schedule had been modified with the result that M.B.’s parenting time had increased to the point it wassubstantially equal to that of C.B.B. Also, C.B.B. did not seem to give due consideration to the impact on J.B. of having to commute foreight to ten hours each weekend. [127] Although I do no not find C.B.B. to have acted in good faith when she moved J.B. to the Farm in the summer of 2016, I find thesignificance of her failure to comply with the Family Law Act legislative relocation provisions and the Separation Agreement hasdiminished with time.

C.B.B.’s efforts to ensure M.B. have parenting time after she relocated J.B. to the Farm did much to mitigate thismisconduct. The relocation issue is now properly before the Court, with both parties present and represented by counsel. [128] Although I do not find C.B.B.’s relocation to [omitted for publication] in August 2016 was made in good faith, this is notdispositive of the issue. In A.J.E. v.

E.A.E., 2013 BCSC 2160 , at para. 37, Madam Justice Harris held that even where the courtfinds a relocating parent has not acted in good faith it does not mean the proposed relocation is not in the best interests of the child. Shestates, “In all cases the court must determine if the proposed relocation is in the child’s best interest.” Similarly, in C.M.B. v.B.D.G., 2014 BCSC 780 , Madam Justice Fleming concluded: … the correct approach under s. 69(4) and (5) is for the court to consider whether the proposed relocation is made in good faith andwhether reasonable and workable arrangements have been proposed.

If one or both of these criteria are not met, the court must still goon to consider whether the proposed relocation is in the child’s best interests. Issue #4: Has C.B.B. proposed reasonable and workable arrangement for parenting time? [129] Section 69(5)(

b) requires C.B.B. to propose reasonable and workable arrangements to preserve the relationship between J.B. andM.B., and other persons who have a significant role in his life. When C.B.B. relocated J.B. to the Farm in the summer of August 2016,she facilitated M.B. having parenting time with J.B. for two to three days per week, and sometimes longer. I understand C.B.B. is willingfor M.B. to have parenting along the lines set out in the August 18, 2016 Notice of Family Claim, with some modifications. I understandC.B.B.’s current proposal for parenting time is as follows: a.

C.B.B. and M.B. will be J.B.’s guardians; b. J.B.’s primary residence will be with C.B.B. on the Farm ; c. M.B. would have parenting time with J.B. two or three weekends per month from 4:00 p.m. on Friday to 5:00 p.m. on Sunday. If theweekend includes a statutory holiday, M.B.’s parenting time will be extended to include that holiday; d. unless otherwise arranged the parties would transition J.B. in Fraser Lake, B.C.; e. M.B. would have parenting time with J.B. for one month of the school summer break; f.

M.B. would have parenting time with J.B. for a block of time to be agreed during the remaining school breaks and J.B.’s birthday;and g. M.B. can have parenting time with J.B. by electronic media when he is with C.B.B. and vice versa. [130] Given the parties are separated by a lengthy drive, C.B.B.’s proposal to preserve the relationship between J.B. and M.B. isreasonable and workable. As her counsel points out, C.B.B.’s proposal is not perfect, but in the circumstances, no arrangement can be. In Hansen v.

Ferguson, 2015 BCSC 588, Madam Justice Fisher noted at para 54 that the law does not require a perfect parenting plan,only one that it is reasonable and workable. Is moving to [omitted for publication] in J.B.’s best interest? [131] Sections 69(3) and (5) of the FLA and Separation Agreement (para. 18) require C.B.B.’s proposed relocation of J.B. to the Farmto be in J.B.’s best interest. To make this determination, I must consider the factors set out in s. 37(2), which state: Best interests of child 37 ...

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including thefollowing: (

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. a. J.B.’s health and emotional well-being [ 132 ] There is no doubt M.B. and C.B.B. love J.B. deeply and have a positive and supportive relationship with him. [ 133 ] I do not have any concerns as to J.B.’s health and emotional well-being while in M.B.’s care. [ 134 ] I have the following minor concerns about J.B.’s health and emotional well-being in C.B.B.’s care, including: a. I question if the lifestyle C.B.B. has embraced may be socially isolating for J.B.

Because the Farm is so remote, it seems that J.B.’s social contacts are primarily, if not exclusively, those persons who are living at the Farm at any particular time. I appreciate that J.B.’s social network would likely expand during the school year. Still, the [omitted for publication] Elementary School is a significant distance from the Farm. Given B.J.’s work and sleep

schedule and C.B.B.’s parenting responsibilities to C.E.J., I wonder if J.B. will have many opportunities for playdates or recreational activities off the Farm; and b. I find it troubling that J.B. has returned to M.B., unbathed and reeking of wood and cigarette smoke. I am left wondering if the Farm residence is far more rudimentary than C.B.B. and B.J. describe. b. J.B.’s views [ 135 ] There is no

Section 211 of the FLA report in this case. I have received hearsay evidence from both parties that J.B. is happy when in their care. Beyond accepting this is likely true from each of their perspective, I do not consider it appropriate to consider J.B.’s views. He is not yet six years old and is already showing signs of anxiety. It is too weighty a decision for him to grapple with. [ 136 ] M.B. and A.S. testified that J.B. is often unhappy at the prospect of going to go the Farm and they try and rally his enthusiasm.

I accept this may be because there is something else J.B. wants to do in Houston at the time or is simply not looking forward to a lengthy car ride. M.B. says that J.B. does become excited at the prospect of seeing C.E.J. c. the nature and strength of the relationships between J.B. and significant persons in his life [ 137 ] M.B. and C.B.B. are the most significant persons in J.B.’s life. [ 138 ] Although J.B. is developing bonds with B.J.’s family, they are nascent. J.B. now has a little brother as a result of C.B.B.’s relationship with B.J.

I have no doubt he loves his little brother and I expect their relationship will develop and flourish over the years. [ 139 ] On the evidence before me, I find that J.B.’s relationship with his extended family in Houston is far stronger than his fledgling relationship with B.J.’s family. [ 140 ] J.B. also has a strong bond with M.B.’s partner, A.S. d. the history of the J.B.’s care [ 141 ] Throughout his young life J.B. has been cared for by M.B. and C.B.B., their respective partners, and extended family. From October 2015 to October 2016, C.B.B. and M.B. shared parenting relatively equally.

Since November 2016, M.B. has been J.B.’s primary care giver and C.B.B. has had parenting time every second weekend. e. J.B.’s need for stability [ 142 ] On [omitted for publication], J.B. will be six years old. Since birth he has had to cope with a significant number of transitions. In particular: a. From his birth on [omitted for publication], until May 20, 2013, J.B. lived with M.B. and C.B.B. as a family unit; b. For less than a month after M.B. and C.B.B. separated, J.B. lived with C.B.B. alone; c.

From whatever day it was when C.B.B. moved in with P.A., J.B. began living with C.B.B., P.A. and sometimes P.A.’s three daughters during the week and with M.B. on the weekend; d. Not long after C.B.B. began to live with P.A., A.S. came to live with M.B. When J.B. was with his father, he also had to interact with A.S.;

e. P.A. died and J.B. had to deal with the death of a parent-like figure for the first time in his young life; f. When P.A. died on October 4, 2015, J.B. went to live full-time with M.B. for three weeks; g. In and after November 2015, J.B. began living roughly half time with his father and half time with his mother. It is not clear to me ifhe continued any relationship he might have had with P.A.’s daughters; h. Beginning in early 2016, J.B. began to stay at the Farm with his mother when she was there spending time with B.J.; i.

In August 2016, J.B. went to live full-time on the Farm with C.B.B., B.J., his parents and his sons if they were visiting. He saw hisfather on weekends and extended weekends; j. In September 2016, J.B. attended [omitted for publication] Elementary School for two months. The previous year he attended theStrong Start program in [omitted for publication] Elementary School in Houston; k. At the end of October 2016, J.B. returned to Houston to live full time with his father and saw his mother only every second weekend.

At that time he changed schools from [omitted for publication] Elementary back to [omitted for publication] Elementary School; l. At the end of December 2016, C.B.B. gave birth to C.E.J. and J.B. had his first sibling - a baby brother; and m.

From January to the end of June 2017, J.B. lived primarily with his father and spent every second weekend with his mother. [143] C.B.B. proposes that at the end of this month, J.B. return to live with her full time on the Farm, re-enrol in [omitted forpublication] Elementary and spend alternate weekends and blocks of holiday time with M.B. [144] Although J.B. presents as a happy and reasonably adaptable little boy, common sense teaches us there is a limit to how manytransitions a child can endure before destabilizing. J.B. appears to have stability in his present circumstances.

In Merriman v.Merriman, 2016 BCSC 1505 , Justice Tindale held that in all things being equal, the child’s need for stability in that case tippedthe balance against relocation. f. the ability to exercise parenting responsibilities [145] M.B. and C.B.B. both have the capacity, interest, commitment and love to effectively exercise their parenting responsibilities toJ.B. [146] C.B.B. argues because she does not have to work outside the home, she is available to parent J.B. when he is not in school. Shesays because of his multiple business interests, M.B. has little time for J.B.

M.B. argues that because C.B.B. does not work she isdependent upon the man in her life to support her, and that man has changed three times since J.B. was born. [147] There has been much time spent in these proceedings addressing C.B.B.’s smoking and drinking. As M.B. does not smoke andrarely drinks, his habits in that regard are not in issue. I am not persuaded that C.B.B. or B.J. drink enough to be a factor in the decision Ihave to make. As to smoking, if C.B.B. does smoke in J.B.’s presence, then it must stop. [148] M.B. has divested himself of some of his work obligations in order to have more time with J.B.

In his October 6, 2016Affidavit, M.B. said he had recently quit his job as a heavy equipment operator at [omitted for publication] to focus on [omitted forpublication], which gives him more time at home. M.B. says it is because he owns his own business he has flexibility in his workschedule. As much as possible he reserves long distance towing jobs and other projects for the times when J.B. is with C.B.B. M.B.wakes J.B., feeds him breakfast and takes him to school. M.B. is always home for dinner and often picks J.B. up after school. When heis at home, M.B.’s time is devoted to J.B.

During his parenting time when J.B. is present and not in school, M.B. engages in a variety ofindoor and seasonal outdoor activities with him. [149] Although C.B.B. does not work outside the home, she has responsibility for a new born baby, farm chores, and household dutieswithout modern conveniences or apparently, even indoor plumbing. C.B.B. says that on the farm, they get up early, work hard and go tobed early. [150] I am troubled by the fact that C.B.B. does not call J.B. while he is at M.B.’s residence. I question if the cell service at the Farmis as robust as B.J. claims.

I am also confused by the inconsistent information M.B. has received concerning communicating with J.B. byelectronic media when he is at the Farm. g & h. Family Violence [151] There is no evidence of family violence. i. Parents ability to cooperate [152] In this case, I am heartened by the fact that from the time they separated until C.B.B. relocated J.B. to the Farm, the partiesparented J.B. pursuant to a Separation Agreement without having to seek assistance from the court. Still, I am somewhat troubled byC.B.B.’s lack of candour and her reluctance to have M.B. go to the Farm to drop off J.B.

Nevertheless, I am confident that in the futureM.B. and C.B.B. will cooperate with one another for J.B.’s best interests. j. other relevant proceedings [153] There are no other civil or criminal proceedings relevant to J.B.’s safety, security or well-being. Conclusion

[ 154 ] Neither M.B. nor C.B.B. nor their respective partners have demonstrated any bitterness or spitefulness in these proceedings. To the contrary, I found the parties to be reasonably fair and supportive of one another. In this respect they must be commended for their civility as this is critical to effectively co-parenting J.B. [ 155 ] If M.B. and C.B.B. continued to live within a reasonable commute, I have no doubt they would have continued to share parenting time with J.B. as they had done in the past. Now they live 353 kilometres apart and they can no longer share parenting time equally.

J.B. has to go to school. To do so, he has to live primarily with one parent or the other. It is unfair and unsafe to require J.B. to spend ten hours a week in a car transitioning between Houston and Prince George. [ 156 ] In his closing submissions, Mr. Hutchinson said: Clearly time with J.B. is a precious and scarce resource. It is in short supply. There are only so many minutes per week to be divided up between the parents. It seems, that given the opportunity, each parent would spend the maximum time with J.B. as possible.

Sometimes the temptation is to treat it like a mathematical puzzle, where with the right amount of divisions and calculations we can make everybody happy. That is not going to be the case. This is a young man who is always going to have to find a balance between the roles of each of his parents in his life. [ 157 ] I agree, except that J.B. is not a young man, he is a little boy, not yet six years old, who is starting grade [omitted for publication] this September. He is showing signs of anxiety. He appears to have a learning disability and needs the assistance of a speech therapist.

In my view, J.B.’s need for stability and emotional well-being would be seriously disrupted by a further relocation. J.B. is settled and thriving in M.B.’s care in Houston and I do not believe it in his best interest to be relocated to the Farm. [ 158 ] I find that it is in J.B.’s best interest to reside in Houston in this father’s care with C.B.B. having parenting time with J.B. as set out below.

Disposition [ 159 ] I allow M.B.’s application for guardianship, an allocation of parenting responsibilities and an order that J.B. reside primarily with him in Houston, B.C. [ 160 ] I allow C.B.B.’s application for guardianship, parenting time and an allocation of parenting responsibilities. [ 161 ] I dismiss C.B.B.’s application to set aside the Separation Agreement, except as modified by this order. [ 162 ] I adjourn M.B. and C.B.B.’s respective applications for child support. [ 163 ] I make the following orders: a.

The Court is satisfied that M.B. and C.B.B. are the guardians of J.B. born [omitted for publication], under s.39(1) of the Family Law Act . b. Under s. 40(2) of the FLA the M.B. and C.B.B. will share equally all parental responsibilities for J.B. c. J.B.’s primary residence will be with M.B. in Houston, B.C. d. C.B.B. will have parenting time with J.B. for two weekends per month, from 4:00 p.m. on Friday to 5:00 p.m. on Sunday. If the weekend includes a statutory holiday, C.B.B.’s parenting time will be extended to include that holiday. e.

Unless otherwise arranged M.B. and C.B.B. will transition J.B. at Fraser Lake, B.C. f. C.B.B. will have parenting time with J.B. for one month during the summer holidays on such days and times as the parties may agree. g. Christmas: Each party have one week parenting time with J.B. during Christmas vacation, with J.B. spending the week including Christmas Day itself with C.B.B. in odd years and with M.B. in even years. In December 2017 the transfer from C.B.B. to M.B. will occur on December 26, unless the parties otherwise agree. h.

Spring break: the parties will split spring break evenly between them, with C.B.B. having the first portion of spring break in even years and M.B. having the first portion of spring break in odd years, unless the parties otherwise agree. i. Each parent may have visits with J.B. by telephone or electronic media while he is with the other parent, no more than once per day, in the evening. j. C.B.B. will have such other parenting time as to which the parties may agree. __________________________ J. T. Doulis Provincial Court Judge