L.H. v. C.M., 2019 BCPC 279

Citation: L.H. v. C.M. 2019 BCPC 279 Date: 20191018 File No: 18-54673 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: L.H. APPLICANT AND: C.M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. MALFAIR Appearing on their own behalf: L. H. Counsel for the Respondent: H. Zetzsche Place of Hearing: Prince George , B.C. Dates of Hearing: September 3, 4, 16, 17, 2019 Date of Judgment: October 18, 2019

[ 1 ] This matter came before me following a three day hearing into the parties’ respective claims for parenting time and C.M. application to relocate their child, A.M. born [omitted for publication]. L.H. lives in [omitted for publication], Alberta and C.M. has recently relocated to Nanaimo from Prince George, B.C. The hearing proceeded with some urgency as there was an order in place prohibiting relocation of the child from Prince George, yet neither party maintained a residence here. C.M. and A. M. were essentially living with friends in Prince George pending the Court’s decision.

I made an order on September 17, 2019, with written Reasons to follow. These are my Reasons. Background [ 2 ] The parties started dating as teenagers in Prince George in 2008. L.H. had recently moved to Prince George form her home in [omitted for publication], Alberta where she grew up. Four years later A.M. was born in Prince George. The parties had a troubled relationship and L.H., who was only around 20 years old, would move back and forth with A.M. between her parents’ home in [omitted for publication] and Prince George as the parties fought and reconciled.

L.H. stayed home with the child while C.M. worked as an apprentice tradesman. [ 3 ] In the spring of 2013 when A.M. was [omitted for publication] months old, L.H. went to visit her mother in [omitted for publication] after a period of conflict with C.M. I accept the evidence of L.H. and her mother, D.B., that the original intention was just for L.H. to come for a visit, but over time L.H. decided to stay in [omitted for publication] with infant A.M. permanently.

I accept L.H.’s evidence that the main point of contention between the couple was that she felt C.M. partied too much with his friends and associated with a negative peer group, especially his close friend, B.F. She did not have C.M.’s agreement to move A.M. to [omitted for publication]. [ 4 ] In July, 2013, C.M. and B.F. met L.H. in [omitted for publication], Alberta, and exchanged A.M. C.M. brought A.M. back to Prince George for a two week visit then returned A.M. to L.H.’s care. [ 5 ] C.M. visited A.M. in Jasper in September 2013, for her birthday then moved to Surrey where he attended trades school.

L.H. brought A.M. to C.M.’s mother’s home on Vancouver Island in October 2013 for Thanksgiving, and C.M. visited A.M. in [omitted for publication] for a week at the end of November 2013. [ 6 ] In January 2014, at L.H.’s invitation, C.M. moved to [omitted for publication]. He lived with L.H.’s mother (A.M.’s maternal grandmother), D.B, who cared for A.M. in the evenings when L.H. worked. L.H.’s stepfather and step-siblings also lived in the residence with D.B. L.H. lived in another residence around the corner and worked late shifts as a waitress.

During this time C.M. spent a lot of parenting time with A.M. as A.M. was often at D.B.’s home in the evenings and overnight. C.M. was living in the same residence and worked day shifts. [ 7 ] While both parties lived near each other in [omitted for publication] they were not a couple. C.M. commenced a family court action in Alberta in April 2014, seeking an order for parenting time. I accept the evidence of D.B. that she was encouraging both parents to get a court order so the parenting arrangements between them could be formally established.

The matter was set for hearing on July 4, 2014. [ 8 ] C.M. says he told L.H. about the July court date but that “for some reason” L.H. thought she did not have to go. L.H. says she did not go to court that day because C.M. told her they should mediate an agreement instead and they mutually agreed not to go. On that basis she went boating with A.M. and the rest of her family on the hearing date. L.H. says C.M. mislead her and went to court in her absence, where he obtained an order giving him primary residence and day to day care of A.M. [ 9 ] I accept L.H.’s version of events.

Notwithstanding, L.H. relied on D.B. to provide child care when L.H. was at work, A.M. had de facto been in L.H.’s primary care up to that point. C.M. was seeking to reverse those arrangements. I do not believe L.H. would have wilfully ignored the court hearing. D.B. testified that around the time the 2014 Order was made she observed L.H. crying and complaining about how she was stupid for trusting C.M.’s word, and that C.M. said there was no longer a court date. While I do not accept that hearsay statement for its truth, I do consider that the statement was made back at the relevant time.

More importantly, given the order was made in L.H.’s absence, I cannot draw any inferences about the court’s view with respect to the child’s best interests. [ 10 ] Within days of the order being made the parties reconciled and moved to Prince George. They stayed for two months while C.M. worked a small job. The couple decided to move to [omitted for publication] in September 2014, where C.M.’s mother and sister lived, to get a fresh start. [ 11 ] The parties initially lived with C.M.’s mother in [omitted for publication]. L.H. got a waitressing job at Boston Pizza and C.M. collected EI benefits.

The parties resumed fighting and in around January 2015, L.H. got her own residence, bringing A.M. with her. A.M. stayed with C.M.’s sister when L.H. worked. C.M. got a job working Monday to Friday at a hospital renovation in [omitted for publication], BC. He lived in [omitted for publication] during the work week. He would spend time with L.H. and A.M. on the weekends when he was not working. [ 12 ] On November 18, 2015, L.H. applied for an order in [omitted for publication] Provincial Court for an order of guardianship.

She indicated the parents had a shared parenting arrangement and that she wanted an order to relocate and become sole guardian of A.M. L.H. wanted to move back to [omitted for publication] as she was no longer in a relationship with C.M. and had no family in [omitted for publication] to support her. C.M. counterclaimed for guardianship and opposed any relocation. [ 13 ] L.H. testified the main reason she wanted to move was because C.M. was planning to move to Ontario, leaving her alone in [omitted for publication] with A.M.

I accept L.H.’s evidence that starting in the fall of 2015, C.M. said he wanted her to move with him to Ontario and she should pack her things. She did not want to move to Ontario with him. She wanted to move back to [omitted for publication] to be closer to her family. [ 14 ] On December 10, 2015, the parties attended Provincial Court in [omitted for publication] and obtained an interim consent order

whereby they equally shared parental responsibilities and shared parenting time equally as agreed between them. L.H. said she felt pressured to agree to this arrangement because C.M. was emotional and aggressive going into court. L.H. had the benefit of duty counsel to assist her. I find L.H. was not “under duress” when the order was made, as she characterized it, but was persuaded by C.M.’s emotional state and concern about his relationship with A.M. to agree to this arrangement.

I find there was nothing untoward occurring and the Order was entered into freely by both parties. [ 15 ] Weeks after this order was made, in January 2016, C.M. went to Ontario while L.H. remained with A.M. in her care in [omitted for publication]. C.M. testified he went to Ontario for a job on a temporary basis, and that he did not actually move there. The shared parenting order is consistent with that intention. L.H. says she understood he had in fact moved away and abandoned her and A.M. These parties have a history of poor, non-existent, and hostile communications.

I find C.M. did only intend to go to Ontario for a temporary work arrangement, but likely due to the parties’ poor communication and discussions the preceding fall, L.H. was of the mistaken view this was going to be long term move. L.H. felt abandoned and alone without support, and decided to move back to her family in [omitted for publication]. [ 16 ] There is some inconsistency in the evidence about whether or not the parties agreed L.H. could move back to [omitted for publication] with A.M.

D.B. testified she understood C.M. had agreed to that arrangement on the basis that the parties intended to reconcile and live together in [omitted for publication] upon C.M. returning from Ontario to Alberta. C.M. says he only agreed to move back to [omitted for publication] because L.H. was there and had indicated a desire to reconcile if he joined her. The evidence shows that upon returning from Ontario in March 2016, C.M. went straight to Alberta and moved in with D.B. At the time A.M. was living with L.H. in a residence a couple of blocks away.

During that time period, around the spring of 2016, C.M. saw A.M. every day as A.M. spent a lot of time at D.B’s residence. [ 17 ] The evidence shows that whenever A.M. lived in [omitted for publication], D.B. would look after her while L.H. worked. L.H. worked as a waitress and often had to work late shifts so A.M. would sleep overnight at D.B.’s residence. D.B. shares a residence with her husband and two stepchildren, A. and J. She has a large home and A.M. has her own bedroom there. D.B. would also care for A.M. when C.M. was working.

The parties’ shared parental responsibilities for A.M. while living in [omitted for publication]. [ 18 ] Shortly after C.M. moved in with D.B. in March 2016, there was a house fire. As a result only the basement of the home was liveable. L.H., A.M., D.B. and her husband and two stepchildren all lived in a large fifth wheel trailer on the property while the house was repaired. C.M. resided in another fifth wheel on the same property. He saw A.M. daily during this time period. [ 19 ] In around April 2016, C.M. moved into a residence owned by L.H.’s friend, Ms. R., who lived 10 minutes down the road.

A.M. continued to live with D.B. and L.H. C.M. worked full time and had a stable residence and employment. [ 20 ] C.M. complains that upon moving in with Ms. R., he was not enjoying “50/50” parenting time with A.M. as contemplated in the December 2015 Order. He had A.M. on weekends and during the weekdays at D.B.’s pleasure. I find as a fact that after moving in with Ms. R., C.M. had parenting time with A.M. every weekend and unrestricted parenting time during the week when he was not working.

I accept D.B’s evidence that C.M. generally had an open invitation to come by her house to visit or pick up A.M. after his work during the weekdays. When it was put to him in cross-examination that in addition to weekends C.M. was allowed to stop by D.B.’s during the week to see A.M., C.M. did not deny it, rather he argued, “why should I have to?” and “50/50 is not weekends.” [ 21 ] Despite having an order for equal shared parenting time, A.M. did not spend any specified weeks or blocks overnight at C.M.’s residence.

I find that although his parenting time with A.M. was liberal and generous, there was a general perception that C.M.’s parenting time was nonetheless as permitted by L.H. and D.B, not as of right. [ 22 ] In July 2016, C.M. says he “bottomed out”. He was drinking, alone and sad. He testified he was unhappy he was “not getting his 50/50” parenting time and that he was being limited to weekends and weekday parenting time as allowed by L.H. and D.B..

He explained he would rather get full days back and forth when A.M. did not have school than get every weekend with her, that he was “deflated” and “needed to go home.” He says he moved back to Prince George to “be closer to myself” and work on his own happiness. He suggests he may have stayed in [omitted for publication] if he had his 50/50 parenting time. [ 23 ] I do not put much weight on C.M. purported rationale for moving.

I am not satisfied L.H. was depriving C.M. of his “50/50.” I accept L.H.’s evidence that C.M. did not bring up the issue of A.M. staying with him for one or two weeks at a time pursuant to a shared parenting arrangement. C.M. adduced no evidence of any proposals or communications he had with L.H. about scheduling equal parenting time. It was not suggested to L.H. in cross-examination that C.M. pressed his claim for weekly parenting time and that L.H. refused. [ 24 ] L.H. testified C.M. could see A.M. whenever he wanted.

She understood the issue was that C.M. was not in a position for A.M. to stay in his day to day care during the week. There was no bedroom for A.M. at Ms. R.’s residence and she believed A.M. shared a bedroom with Ms. R.’s niece when she stayed with C.M. on weekends. [ 25 ] C.M. provided no evidence about discussions he had with L.H. or D.B. about moving A.M. to his residence during his work week. A.M. was three years old and would have required a great deal of supervision, including when C.M. worked.

There was no evidence C.M. had a bedroom, infrastructure or childcare available for A.M. such that he was capable of assuming her care during the week. C.M. just complains A.M. “should have been with him” without any evidence as to requests or arrangements he made in that regard. [ 26 ] I accept the evidence of D.B. that when C.M. lived with her while A.M. was young, he did not interact very much with A.M. after work, preferring to go to the garage to drink beer and smoke marijuana.

I am not satisfied C.M. was actively trying to get three- year-old A.M. into his full time care on weekdays pursuant to his “50/50” during this time period. [ 27 ] In the summer of 2016, C.M. moved without A.M. to Prince George and into a residence owned by his best friend, B.F. had a drinking problem in addition to other issues that were only obliquely alluded to by C.M. I infer from the evidence of J.S. that B.F. was involved in criminal activity and drugs. B.F. went missing in June of 2019, and his body was found, murdered, in July of this year.

[ 28 ] C.M. went to see A.M. in Edmonton on her birthday, [omitted for publication]. He had parenting time with A.M. in Prince George at Christmas, 2016; two weeks in the spring break of 2017; and two weeks of summer break, 2017. He had Father’s Day with A.M. in Alberta, 2017 and helped take A.M. to her first day of school in September, 2017. He brought A.M. to Prince George for a visit at Christmas 2017, and spring break 2018. He next came to see A.M. in June 2018.

From July 2016 to June 2018, A.M. remained in the primary care of L.H. in [omitted for publication]. [ 29 ] During the Christmas visit in 2016, C.M. failed to return A.M. to L.H. when school recommenced in January and L.H. needed to travel to Prince George to pick up A.M., who missed 6 days of school. [ 30 ] In June 2018, C.M. came to Alberta for Father’s Day and A.M.’s last day of school.

C.M. claims he contacted the Ministry for Child and Family Development (“MCFD”) because he was frustrated about L.H.’s lack of cooperation in letting him spend time with A.M. during her last few days of school and that when he called the social workers said they were looking for him. He was told that D.B. and her husband had been in an argument in which D.B. had thrown a glass and police were called.

C.M. says the social worker said it was within his rights as a father to take A.M. because the 2014 Court Order from Alberta said she was in his primary care. [ 31 ] C.M. brought A.M. back to Prince George and did not return A.M. to L.H.’s care. He filed an application July 11, 2018, seeking primary care of A.M. L.H. filed a Reply disagreeing with the application. Both parties claimed guardianship. [ 32 ] Documents from the Alberta Children’s Services (“ACS”) were adduced in evidence. They are heavily redacted and no names are identifiable.

They primarily make reference to C.M.’s discussions with and complaints to social workers. I accept the evidence of D.B. and L.H. that the reason for ACS’ involvement was that D.B. and her husband got in an argument one night after D.B. had been drinking. D.B. and her husband were in the garage and the children, including A.M., were asleep inside the residence. D.B. threw a glass at her husband. RCMP were contacted the next day who in turn informed ACS.

L.H. became the subject of concern by social workers because she allowed D.B. to look after A.M. the next day when she went to work despite the prior evening’s events. However, no action by ACS was taken with respect to L.H. or A.M. [ 33 ] D.B. and her husband subsequently reconciled, she plead guilty to assaulting him and undertook counselling.

Given the children were asleep in a different structure at the time this happened, it was an isolated incident, and L.H. was not involved, I do not consider this incident to be of any import when assessing whether A.M. is safe in L.H.’s care. [ 34 ] L.H. took the summer off work and moved up to Prince George for the summer of 2018 to be close to A.M. as C.M. refused to return A.M. or allow L.H. to leave town with A.M. She exercised intermittent parenting time as permitted by C.M. [ 35 ] L.H. was served with C.M.’s application and a blank reply form on August 8, 2018.

At the time L.H. was exercising parenting time with A.M. in Prince George at her cousin’s campsite. C.M. says that in response to being served L.H. said “see you in 30 days”. I note the Blank Reply form would have contained instructions that the Reply must be filed in 30 days. In any event, C.M. says he was concerned L.H. did not intend to return A.M. for 30 days so he went to the campsite where L.H. was camping with A.M. to confront her. [ 36 ] The parties gave disparate evidence about what happened at the campsite.

It is not contested there was a confrontation which lead to L.H., C.M. and L.H.’s cousin being kicked out of the campsite. I accept L.H.’s evidence that C.M. showed up angry, caused a scene, and security told everyone to leave, resulting in her cousin losing her camp spot for the entire rest of the summer. C.M. says he was trying to get L.H. to confirm in writing the date in which she would return A.M. and L.H. would not do so.

He says she tried to run him over in her truck and drove him into the ditch. [ 37 ] L.H. says she did provide C.M. a note saying she would not leave BC with A.M. and would return her the next day.

She says C.M. stood in front of her truck like a human barrier and refused to let her pass, that A.M. was in the backseat very upset, and she did not try to run him down. [ 38 ] L.H. adduced a video into evidence showing her vehicle parked, unmoving, with C.M. leaning on the front of the hood like a barrier while A.M. screamed in the background. [ 39 ] C.M. claims MCFD called him the next day asking what happened and he told them L.H. kept running her truck at him and put him in the ditch.

He claims MCFD said L.H. was “not talking to them.” L.H., C.M. and a MCFD social worker all met at his apartment and signed a Safety Plan, a copy of which was put into evidence. The Safety Plan is silent as to the reasons for the plan. It provides that as of August 9, 2018, A.M. would remain in C.M.’s care until L.H. met with Social Worker Wiebe, and that L.H.’s access to A.M. would be supervised during that time. It was to be reviewed August 17, 2018, and could be “renewed.” [ 40 ] The Safety Plan was not renewed. It lapsed on August 17, 2018.

L.H. says the Safety Plan had nothing to do with the truck incident, rather, MCFD was concerned there was an open child protection file from Alberta arising from the domestic violence incident involving D.B., and wanted to meet with her to discuss that file. The safety plan was a temporary plan pending that meeting, and once she had the meeting the file was closed and no further action was taken. There are currently no open child protection files in either province. [ 41 ] By consent, on October, 11, 2018, the [omitted for publication] family file was transferred to Prince George.

Later that month L.H.’s grandmother in [omitted for publication] passed away. L.H. came to Prince George and sought parenting time from C.M. to take A.M. to the funeral. At this time there was no MCFD order in place limiting her parenting time and the valid extant order was the BC shared parenting order from December 2015. [ 42 ] C.M. testified he wanted L.H. to sign a letter confirming the dates she would be taking and returning A.M., but she did not prepare a letter despite being asked and being given three days to do it.

He says finally on Friday evening, October 19, 2018, he took a day off work to write the letter for her, which she signed. She took A.M. October 19-21, 2018, to [omit for publication]. [ 43 ] L.H. says she did try to meet with C.M. several times before the funeral to prepare a letter but he refused to meet her until Friday evening. By that point she had already missed her grandmother’s funeral, which was very upsetting and emotional for her.

[ 44 ] The parties had a first appearance in this Court on December 14, 2018, and the matter was adjourned for a Family Case Conference in 2019. It is not contested L.H. had arranged to visit A.M. the weekend of December 15, 2018, as she was already in Prince George for the court appearance. [ 45 ] There was a conflict in the evidence with respect to the parties’ agreement concerning 2018 Christmas parenting time. L.H. says C.M. had Christmas parenting time the previous year, 2017, and it was agreed she would have Christmas parenting time in 2018.

I find her understanding consistent with the operative order in effect at the time which provided for equal shared parenting time. On that basis she took A.M. to Alberta the weekend of December 15 th to commence the Christmas parenting time. A.M. still had four days of school left the following week which she missed. L.H. says she told the school and C.M. that she was taking A.M. early. [ 46 ] C.M. says there was no agreement about Christmas parenting time and he had only permitted L.H. to have A.M. on the weekend of December 15 th .

C.M. sent an email to L.H. on December 17, 2018, complaining they did not discuss her taking A.M. to Alberta or the dates of the visit. His email implied L.H. was required to tell C.M. where A.M. would be staying and who would care for A.M. when L.H. was working. In my view, nothing in the operative family court order gave C.M. the authority to demand child care arrangements be made to his satisfaction as a condition of L.H. exercising her parenting time.

According to C.M.’s affidavit filed December 20, 2018, L.H. did advise him she would return A.M. to Prince George after Christmas. [ 47 ] On December 20, 2018, C.M. filed an affidavit in support of an application he subsequently filed December 24, 2018. In that affidavit C.M. said that he was worried about the “mental and possible physical abuse” that A.M. might endure in L.H.’s care.

He says that in June there was an “incident with the Ministry Family and Children” that “brought A.M. into his care.” He did not serve this affidavit on L.H. or notify her of his intention to attend court. [ 48 ] On December 24, 2018, C.M. filed a Notice of Motion seeking short leave for an interim order that he have the majority of parenting time with A.M., that L.H. not remove A.M. from Prince George and a police assistance clause to enforce the order. He was granted short leave to

schedule the hearing for December 27, 2018. He did not advise L.H. of the application. The hearing proceeded ex parte before Judge Gray on December 27, 2018. [ 49 ] In the hearing before Judge Gray, C.M. was questioned by the Court about the history of the child’s care. He told the Court that on Father’s day, 2018, there was a “ministry matter” he had not been informed about and the Ministry suggested he pick A.M. up from school and she come home with him.

He said that A.M. was in his care for a month and on August 9, 2018, L.H. came to Prince George and signed an order from the Ministry “placing A.M. in his care” because she was going to come back to Prince George, but then she returned to Alberta and A.M. had been in his care ever since.

He said that they were talking about A.M. going to Alberta for Christmas but because the “Ministry was involved” he wanted to make sure things were talked about. [ 50 ] C.M. also told Judge Gray he worked 7:30-4:30 doing drywall, he cares for A.M. during the evenings, and that A.M.’s friend’s mother looks after A.M. before and after school. He said he had called L.H. every day since she left with A.M. but had been ignored.

He expressed concern that he needed an order because school was starting soon and there had been “no contact whatsoever.” [ 51 ] In reliance on C.M.’s submissions, Judge Gray made an ex parte order changing the parenting arrangements between the parties, giving C.M. the majority of parenting time with A.M. with reasonable parenting time to L.H. as agreed between the parties.

There was also an order that C.M. not change A.M.’s residence from Prince George without L.H.’s written approval or further order of the Court. [ 52 ] Upon the order being granted, C.M. immediately went to Alberta and retrieved A.M. from D.B.’s residence without warning. There was a big scene, police were called, and A.M. was forcibly removed from the residence over her protests. C.M. admits A.M. was angry with him afterwards. A.M. remained in C.M.’s care since that ex parte order was obtained pending this hearing. An FCC occurred March 6, 2019, without an order.

The parties appeared April 11, 2019, to fix a date for hearing, and in June 2019 the matter was scheduled for trial September 3 and 4, 2019. L.H. was able to visit A.M. on Mother’s day and in conjunction with scheduled court dates. [ 53 ] I accept the evidence of L.H. that upon the ex parte order being granted, C.M. took the view that it was entirely within his discretion to decide when L.H. could have parenting time with A.M. He refused to allow her multiple parenting time requests including during spring break, 2019.

L.H. felt she had no options but to allow the Court process to see its way to completion. [ 54 ] In my view, L.H. was more generous in facilitating C.M.’s parenting time with A.M. when A.M. was in her care from 2016- 2018 than C.M. was in facilitating L.H.’s parenting time. [ 55 ] In June 2019 B.F., C.M.’s close friend and roommate, went missing. C.M. wanted to take A.M. to Ontario for two weeks right after school finished but L.H. did not agree.

L.H. was concerned about what was going on with B.F. and said she wanted to take A.M. to Alberta where it was safe. [ 56 ] Near the end of June, C.M. stopped responding to L.H.’s texts and attempts to contact him. A.M. was in his care and L.H. had planned to pick her up on June 27 or 28, after the last day of school, for summer parenting time. On June 25, 2019, L.H. received a call from a mutual friend expressing concern that no one had heard from C.M. in five days and asking if she had heard anything. L.H. started calling friends and social workers asking them to do wellness checks.

She was told “everybody” was searching for A.M. and C.M. but they could not be located, and that C.M. was not responding to anyone’s calls. [ 57 ] On or around June 26, 2019, C.M. and A.M. were reported missing, presumably by C.M.’s own friends or family members. Police and social services could not locate him or A.M. Their absence was of acute concern because of B.F.’s recent disappearance. The missing person’s coordinator for the RCMP contacted L.H. seeking current photos of A.M. to issue in a media appeal.

L.H. came up to Prince George and met with social workers on July 2, 2019, concerning A.M.’s disappearance, who advised A.M. had finally been located on July 1 or 2. L.H. also frantically communicated with C.M.’s mother, who was in Ontario trying to locate A.M. [ 58 ] B.F.’s body was found at the end of June 2019. He had been murdered.

[ 59 ] C.M. says that at the end of June when B.F. was reported missing, he left Prince George and took A.M. to Nanaimo on Vancouver Island. C.M. says he initially had just gone for a “holiday” to Nanaimo but decided to stay there permanently for a “fresh start.” He has remained there since, having moved in with his friend, D.R., and having secured employment there. [ 60 ] C.M. claims that during the period at the end of June when he was believed to be missing he was out of communication with everyone because his phone broke.

I find that period was at minimum six days, spanning from at least June 25, 2019, to July 1, 2019, based on L.H.’s personal observations. That period may have in fact been longer given C.M.’s friends complained to L.H. they had not been able to communicate with C.M. before June 23, 2019. [ 61 ] C.M. finally communicated with L.H. on around July 5-7, 2019.

L.H. asked if A.M. was ok and he replied “what is your fucking e-mail?” He started using a new name, “[omitted for publication]”, and a new email, “[omitted for publication].” C.M. adduced a copy of an email he sent to his counsel dated July 18, 2019, displaying that same username and email address. C.M. asked L.H. not to share his email with anyone. He refused to give L.H. a phone number to contact him.

L.H. picked up A.M. for summer parenting time in mid-July, 2019 and had A.M. in her care until the start of this trial in September. [ 62 ] Neither party has paid support to the other when A.M. was in the other parent’s care. I accept the evidence of L.H. that when she attempted to obtain contributions from C.M. for pre-school fees, hospital and dental bills, he refused. C.M. says he tried to make some contributions for A.M.’s support but could not do so because of a “bank fraud” issue upon which he did not elaborate.

He says he tried to “chip in” what he could. [ 63 ] C.M. seeks an order permitting him to relocate to Nanaimo. He has effectively already moved there despite the order of Judge Gray expressly prohibiting relocation without a court order. He shares a two bedroom house with D.R. D.R. has one bedroom and C.M. and A.M. share another small bedroom. D.R. testified that he works in camp 3 weeks in and 1 week out, and C.M. can sleep in his room while D.R. is in camp. C.M. put in a loft bed to accommodate him and A.M. in the single bedroom.

His sister and her sons (A.M.’s cousins) live one hour away in [omitted for publication]. [ 64 ] C.M. says that if A.M. is permitted to relocate he may find a larger residence for him, D.R. and A.M. He currently works days at [omitted for publication] in Nanaimo.

In terms of childcare, C.M. says there is a man with two daughters living in the basement of D.R. residence who could walk A.M. to school in the morning, and that D.R. mother, S.R., could pick A.M. up from school every day and care for her until C.M. was finished work. [ 65 ] C.M. says there is a pool near D.R. house and three gymnastics clubs in Nanaimo if A.M. wishes to pursue that. He proposed a parenting time

schedule which involved A.M. spending school holidays and extended long weekends with L.H., which could be facilitated through airline flights or driving. He also proposed L.H. could come and visit A.M. in Nanaimo and communicate with A.M. regularly by skype. [ 66 ] L.H. says that if A.M. lives with her, A.M. would be returning to the area she spent most of her life. Childcare would be provided by A.M.’s grandmother, D.B., in the home where A.M. spent much of her time before being moved to Prince George in the summer of 2018. A.M. has her own bedroom in D.B.’s residence.

L.H. lives around the corner from D.B. in a three bedroom townhouse she shares with her long time close female friend. A.M. would have her own room. L.H. would enrol A.M. in the [omitted for publication] where D.B.’s stepson, A., attends. A.M. attended kindergarten at that school and has friends there. [ 67 ] If D.B. is not available to provide childcare, L.H.’s long-time close friend R.T. would assist. A.M. considers R.T. an “aunt” and is close friends with her two young children (who are L.H.’s godchildren).

L.H. characterizes these children as being like siblings to A.M., and that A.M. used to see them at least twice a week when she lived in [omitted for publication]. A.M.’s uncle, aunt, and cousin also live in [omitted for publication]. L.H. says there are lots of children and extended friends and family living in [omitted for publication] who A.M. knows, they all live close by, and attend the same schools. A.M. has been part of these person’s lives on a regular basis for most of her life. [ 68 ] L.H. says she can enrol A.M. at the dance academy run by her close long-time friend, as well as archery and gymnastics.

A.M. has expressed an interest in these activities. L.H. works in a restaurant that closes at 9 pm daily. She is often done work by 7 pm. The restaurant is family friendly and staffed my mothers who all support each other in balancing work and family obligations. Credibility [ 69 ] As outlined above, the parties’ evidence diverged significantly with respect to a number of events. Generally speaking, I found L.H. to be a more reliable and credible witness. C.M.’s evidence was sometimes internally inconsistent, externally inconsistent with other evidence, or contrary to common sense.

A couple of times he changed his evidence when confronted in cross-examination. C.M.’s Removal of A.M. from [omitted for publication] [ 70 ] C.M. told Judge Gray in the ex parte hearing that he relocated A.M. from her mother’s care in [omitted for publication] to Prince George in June 2018, because he was told by Alberta social workers to do so. In this hearing he said social workers told him he was within his rights to take A.M. because he had primary care pursuant to the 2014 [omitted for publication] family Court order.

Log notes of Alberta child protection workers were adduced in evidence in this hearing. [ 71 ] In June 2018, A.M. had been in L.H.’s sole primary care in [omitted for publication] for two years. I find that C.M. went to [omitted for publication] to pick up A.M. after her last day of school for two weeks of pre-arranged summer parenting time, following which A.M. was to be returned to L.H.

I accept L.H.’s evidence that notwithstanding the incident involving D.B., Alberta social workers confirmed she was free to pick up A.M. after C.M.’s two weeks of parenting time was done. [ 72 ] I do not believe C.M.’s evidence about his conversations with ACS social workers. His evidence in the ex parte hearing and this hearing are refuted by the social workers’ log notes.

[ 73 ] C.M. first came into contact with ACS because he had come to pick up A.M. for summer parenting time and felt L.H. was not cooperating with the pick-up. He wanted ACS to effectively intervene and enforce the shared parenting order. ACS advised C.M. they did not deal with custody disputes, however, they did talk to him about the incident involving D.B. [ 74 ] C.M. said social workers told him he was within his rights to relocate A.M. to Prince George because the 2014 Alberta Court order gave him primary care of A.M. I do not believe social workers gave C.M. that advice.

That Court order was vitiated upon the couple’s reconciliation in August of 2014, and had been superseded by the BC order of 2015, for equal parenting time. That advice does not appear in the social workers’ log notes.

To the contrary, the log notes indicate C.M. showed the social worker a copy of the BC parenting order, the social worker took photos of it, and she summarized the order as stating “both parents share equally all parental responsibilities for A.M.” I find it unlikely in those circumstances the social worker would invite C.M. to act on the 2014 Alberta order. [ 75 ] The social workers’ log notes further state that in a conversation with C.M.,: “Assessor Wilson and Assessor Richardson stated he can do what he feels is best in order to keep his daughter safe.

C.M. was very concerned about the domestic violence that occurred and the fact that [redacted] is not always caring for their daughter. … C.M. was encouraged to seek an order to vary the parenting order as it doesn’t reflect their current situation and is too vague as they don’t know when they can see their child and for how long.

He agreed”. [emphasis mine] [ 76 ] A similar entry appears in the log notes with respect to the social worker’s discussions with L.H.: Discussed Parenting Order. [Redacted] agrees that Parenting Order is 50/50. [Redacted] that C.M. needs [redacted] permission to leave the province with A.M. In terms of C.M.’s visitation, he sees A.M. during her school breaks and in the summer [redacted].

Dad doesn’t follow the Parenting Order as he doesn’t return her when he’s supposed to. [Redacted] informed Dad was picking up A.M. today. [Redacted] wants A.M. to spend time with her Dad. [Redacted] informed that A.M. wants to spend time with her ad and visit with him. [Redacted] if he wants to bring her back to B.C. that’s fine. He can keep her for a couple/few weeks and then pick her up. Assessor Wilson encouraged [redacted] have a conversation with C.M. and develop a plan.

Assessor Wilson encouraged [redacted] to vary the Parenting Order because it is not true to their current situation and causes a lot of headaches as it’s not clear . [emphasis mine] [ 77 ] The log notes end with the entry that the social worker is working with the family and will complete a safety plan with the father. There is no evidence any further action, including a safety plan, was ever pursued by Alberta authorities.

The log notes clearly show that A.M. was not removed from L.H. or placed in C.M.’s care. [ 78 ] There is nothing in the log notes suggesting social workers told C.M. he could or should relocate A.M. to Prince George and assume primary care of her. I find the log notes were consistent with L.H.’s evidence – social workers were aware C.M. was taking A.M. to Prince George for summer parenting time, L.H. was going to be picking up A.M. after a “couple or few weeks”, and this did not raise any child protection concerns.

I find ACS simply advised both parents to apply to vary the existing family court order and C.M. knew they were not taking any action to place A.M. in his care. It was C.M. who decided not to return A.M. to L.H. after exercising weeks of summer parenting time. The Campsite Incident [ 79 ] In direct examination C.M. testified that he showed up to serve L.H. papers and they both got kicked out of the campsite. He says he was waiting at the entrance for L.H. to sign something confirming when she would be back with A.M., at which point L.H. tried to run him over with her truck and drove him into the ditch.

Implicit in his direct evidence was that he was only confronting L.H. in order to get written confirmation about returning A.M. and she would not give it. [ 80 ] In cross-examination C.M. changed his evidence, conceding L.H. did provide him a written signed note promising not to take A.M. out of BC. He tried to explain this inconsistency by saying this note was not satisfactory because she had relatives in [omitted for publication], B.C., and could conceivably take A.M. there. [ 81 ] I find C.M.’s explanation unsatisfactory.

I find he was not being truthful in his direct examination and intended to give the impression L.H. was refusing to provide him any written document confirming her intentions to return A.M. He did not admit L.H. had provided him a written note at all until confronted in cross-examination, and then his explanation for rejecting that note – “she has relatives in [omitted for publication]” - was far-fetched.

There was no evidence L.H. had ever visited relatives in [omitted for publication] let alone lived there. [ 82 ] C.M. testified that when he confronted L.H. about providing a note she kept running her truck at him and tried to put him in the ditch. L.H. adduced a video which contradicts his version of events. Even though it may not have been a complete record of the entire interaction between the parties, it is lengthy enough to show C.M.’s account is false or incomplete. The video shows the truck is parked and not moving.

C.M. is leaning on the hood of the truck, not moving, acting a human barrier to prevent L.H.’s exit. He is not being chased down by L.H. Of great concern, A.M. can be heard in the background of the video screaming and crying in the backseat of the truck, begging her Dad to move out of the way. The child is in obvious distress. August, 2018 Safety Plan [ 83 ] C.M. says the August 2018 Safety Plan, arose in response to concerns from MCFD that L.H. tried to run him over with her truck at the campsite. He says MCFD just happened to call him, but I do not believe his evidence in that respect.

I find it was likely C.M. who called the BC MCFD in August 2018, complaining about L.H. after the campsite confrontation. From the Alberta child protection log notes and the evidence led in this proceeding, I find C.M. was eager to involve child protection authorities in his parenting time disputes with L.H. [ 84 ] While I find it was C.M. who called MCFD complaining about the campsite incident, I do not believe C.M.’s claim that this incident formed the basis of the August 2018 Safety plan.

[ 85 ] The August 2018 Safety Plan was a temporary 2 week plan in which the parties agreed L.H.’s parenting time would be supervised. It was to be reviewed in two weeks and expired unless renewed. I find it highly unlikely that in the face of an allegation that L.H. tried to run down C.M. with A.M. in the truck that the Ministry would respond with a two week safety plan which was never extended and never resolved with any protective or remediative measures.

It would have been utterly irresponsible for a social worker to take no further action on a child protection file in the face of such a serious allegation of domestic violence carried out in the presence of a child. [ 86 ] No collateral documents have been adduced from the Ministry, like the log notes adduced from the Alberta child protection services, explaining the basis upon which the safety plan was entered. No police file or complaint was adduced in evidence about the campsite incident, and I have found C.M.’s description of that event was refuted by the video evidence.

I prefer the evidence of L.H. which is consistent with the evidence and common sense. MCFD was told about the presence of an Alberta child protection file. MCFD social workers wanted to know about that file and meet with L.H. to ensure there were no outstanding child protection concerns. A two week safety plan was put in place to allow that meeting to occur, as L.H. was going back to Alberta and could not meet until the following week.

Once that meeting took place MCFD was satisfied there were no child protection concerns and took no further action. [ 87 ] The minimal intervention by MCFD is not consistent with social workers having concerns L.H. tried to run over C.M. in the presence of their child. C.M. may have made that complaint to MCFD, but I find that was not the reason the Safety Plan was put in place. [Omitted for publication] Funeral [ 88 ] I find C.M.’s conduct with respect to L.H.’s request to take A.M. to Fraser Lake for the weekend for A.M.’s great- grandmother’s funeral troubling.

Given the extant order at the time was for shared parenting, C.M. was not entitled to refuse L.H.’s request or demand she sign a self-serving letter as a condition of exercising parenting time with A.M. [ 89 ] I do not believe it was L.H.’s fault she and A.M. missed the funeral because C.M. had asked L.H. over the course of three days to “write something up” confirming when she would return A.M. and L.H. failed to do so. I prefer the evidence of L.H. that C.M. kept deferring their meeting until the evening of the funeral.

C.M.’s evidence about this incident was internally inconsistent. [ 90 ] C.M. claims he had to take a day off work to meet L.H. to write up the permission letter. It does not take a day to write a short letter confirming L.H. was taking A.M. to [omitted for publication] for two days. C.M. met her at Staples at 6:00 p.m. His evidence before Judge Gray was that he was able to care for A.M. because his workday completed at 4:30 p.m.

It would not have been necessary for him to take a day off work to attend Staples at 6:00 p.m. on a Friday. [ 91 ] The circumstances in which the confirmation letter was written are in dispute. C.M. adduced a letter into evidence he says was signed by L.H. L.H. denies signing that letter and says the first time she ever saw it was at this trial. She claims she signed a different, typewritten confirmation letter, and says the signature on the document filed in Court is not hers. [ 92 ] In direct examination C.M. said he wrote the confirmation letter adduced in evidence.

In cross-examination he changed his evidence when confronted about the handwriting and the presence of an unknown female with A.M. at the Staples store, saying he drafted the letter on his phone but that his friend “Nicole” handwrote it. [ 93 ] The letter adduced in evidence is inflammatory and goes far beyond what was necessary to simply confirm L.H.’s parenting time arrangements for the funeral. It says: “A.M. isn’t to go back to Alberta until after our family court trial finishes.

Due to previous visits/meetings loop holes have been abused and to avoid ever happening again, if necessary a police clause to provide of A.M.’s best interests without any emotional abuse.” [ 94 ] I find it unlikely L.H. would have willingly signed a letter purporting to admit she has “abused loop holes”, that she was putting A.M. at risk of “emotional abuse”, and that she would not take A.M. to Alberta again until after the trial. None of those statements were necessary to merely confirm the dates L.H. would have A.M. for the funeral.

Either L.H.’s signature was forged or she was forced to sign this letter as condition of C.M. allowing her to take A.M. to the funeral. In either case, the circumstances reflect poorly on C.M. He had no authority to withhold A.M. from L.H. unless she agreed to the contents of that letter. The Ex Parte Application [ 95 ] C.M. made an ex parte application before Judge Gray on December 27, 2018. In that application C.M. suggested A.M. had been placed in his care by child protection authorities, L.H. had pulled A.M. out of school and taken off with her to Alberta, and that she was not communicating with him.

He was concerned about A.M. being returned to Prince George in time for the re-commencement of school. He painted a picture of A.M. being in danger. I found many of his representations to Judge Gray were untrue and set aside the ex parte order on September 4, 2019. [ 96 ] In his application to obtain an order filed July 11, 2018, C.M. alleges that “police and child services” had shown up at A.M.’s residence “for abuse”. On December 20, 2018, C.M. filed an affidavit in support of the ex parte application.

In that affidavit C.M. said that he was worried about the “mental and possible physical abuse” that A.M. might endure in L.H.’s care. He says that in June there was an incident with the Ministry that “brought A.M. into his care.” [ 97 ] As I have found, with the exception of the two weeks in August 2018, where the safety plan was in place, A.M. was never formally or informally placed in C.M.’s care by child protection agencies. There were no allegations of “abuse” of A.M. or any other child in D.B.’s or L.H.’s care.

I do not accept C.M.’s explanation this was the innocent misuse of a term by an unsophisticated layperson. In the common vernacular, “abuse” in the context of interventions by child protection agencies is generally understood to refer to violence or harm directed at a child. I find C.M. intentionally exaggerated the risk of harm to A.M. in hopes of improving his claim for parenting time. [ 98 ] I accept the evidence of L.H. that in light of the fact C.M. had enjoyed Christmas parenting time with A.M. in 2017, the parties

agreed L.H. was to have Christmas parenting time in 2018. While I am satisfied there was no discussion or agreement permitting L.H. to take A.M. out of school one week early, I do find as a fact the parties had discussed and agreed L.H. would return A.M. two days before the re-commencement of school. [ 99 ] C.M. complained to Judge Gray that he had no contact with L.H. after she had taken off with the child. I find L.H. did communicate and told C.M. she would return A.M. at the end of the Christmas break before school started.

I also accept the evidence of D.B. that on December 23 or 24, 3-4 days prior to C.M.’s application, she observed a phone call between L.H. and C.M.

C.M. was screaming and swearing at L.H. and demanding she “put A.M. on the fucking phone.” L.H. said she would not do so until he calmed down, he continued to be angry, so L.H. hung up the phone. [ 100 ] C.M. contemplated applying for a change of parenting time on December 20, 2019, when he filed his affidavit, however, he made no mention of his intentions to L.H. despite having her contact information and speaking to her on the phone three to four days before the hearing. L.H.’s and A.M.’s whereabouts were well known to C.M. and there was no risk of harm to A.M. if L.H. were told of the application.

L.H. had just appeared in Court less than two weeks earlier. She never suggested she was going to abscond to places unknown with A.M. C.M.’s decision to hide the fact of his application from L.H. is concerning, especially when considering the misrepresentations he made to Judge Gray which may have been easily refuted by L.H. had she been present at the hearing. [ 101 ] L.H. did tell A.M.’s school that she was taking her home and A.M. would not be there that last week.

I agree that L.H.’s actions in taking A.M. out of school without any discussion with C.M. was not justifiable and should have been handled differently, however, that action did not warrant C.M. seeking to change the shared parenting order ex parte based on exaggerated evidence. C.M. had himself caused A.M. to miss six days of school in January 2017, when he failed to return her after a Christmas visit on time. [ 102 ] I am also troubled by how C.M. went about enforcing the ex parte order. Two days after Christmas he showed up at D.B.’s house, aggressively banged on the door and caused a scene.

He yelled at A.M. to go with him. Police were called. A.M. did not want to leave. She tried to argue with C.M. and he put her in the car. When A.M. got out of the car and refused to stay inside, he picked her up, forced her back in the car and slammed the door. I find this whole incident would have been traumatic for A.M. and was totally unnecessary. There was nothing to suggest A.M. was in danger in L.H.’s care. The parties had previously agreed L.H. could spend Christmas with A.M. and L.H. said she would return A.M. before school started.

I find the real reason C.M. went down and forcibly retrieved A.M. was because he was angry at L.H., not because of any concerns about A.M.’s well-being. [ 103 ] C.M. suggests his conduct is a function of his fear that L.H. will take off to Alberta with A.M. based on her past actions. I do not view this as a reasonable justification for denying parenting time, demanding self-serving “permission letters”, or changing parenting arrangements ex parte based on misrepresentations.

There is no difficulty enforcing parenting time orders between BC and Alberta, and in fact, the parties had open family court files in both locations. C.M. was easily able to enforce Judge Gray’s ex parte order in Alberta which was honoured by police there. [ 104 ] The fact is there was a vague shared parenting family court order in place which was impracticable given parties lived hundreds of kilometres apart. It was incapable of being realistically complied with once A.M. started school.

As such, the parties had no meaningful court order in place for parenting time that reflected their actual living circumstances. There was no legal basis for C.M. to behave as if he was the sole arbiter of any parenting time to be exercised by L.H. Sudden Relocation to Nanaimo [ 105 ] A great deal of panic was generated by C.M.’s sudden trip to Nanaimo with A.M. in June 2019, immediately following B.F.’s disappearance, which ultimately turned into a relocation after he was found murdered. L.H. says I should infer that C.M. left in such unusual circumstances because he perceived himself and A.M. to be in danger.

C.M. says there was no danger, he had just decided to go on a holiday and then to stay in Nanaimo for a “fresh start.” Everyone “overreacted.” At the time the Order of Judge Gray expressly prohibited C.M. from relocating A.M. from Prince George. [ 106 ] I found C.M. to be evasive, defensive, and argumentative when questioned about this subject in cross-examination. He refused to answer relevant questions and became visibly angry and hostile at L.H.

While his hostility towards L.H. was generally apparent throughout his cross-examination, he showed particular discomfort and indignation when this topic was broached that was completely out of proportion to the calm and respectful tenor of the highly relevant questioning put to him. [ 107 ] I do not believe C.M.’s explanation that he had just “gone on a holiday” with A.M. and was out of touch with everyone because his phone broke and people “overreacted.” In this age of ubiquitous technology there is no reason for anyone to be incommunicado for 6 or more days because their phone broke.

He was staying with D.R. who presumably had a phone. I also do not believe there was no Wi- Fi available anywhere to permit C.M. to communicate using A.M.’s iPad. Nanaimo is not a remote unserviced location. In support of his relocation application, I note that C.M. proposed that A.M. live with him at D.R.’s residence and skype with L.H. every other day.

That assumes there is Wi-Fi at D.R.’s residence. [ 108 ] Given the circumstances – that C.M.’s best friend and roommate had gone missing and been found murdered - it would have been obvious to any responsible parent that people would be concerned for his and A.M.’s safety and would want to communicate with him. Further, C.M. did not just vacation in Nanaimo, he stayed there, got a new residence and a new job. He started using a new name, refused to give L.H. a phone number and directed L.H. not to share his email with anyone.

He gave up his Prince George residence despite there being a court order prohibiting relocation, suggesting he had no intention of returning here. [ 109 ] C.M. sys he relocated to Nanaimo for a “fresh start” and because he found work there. However, I found his evidence concerning the employment reasons for relocating to be inconsistent and vague. B.F.’s uncle, G.F., owns [omitted for publication], the business C.M. worked at prior to moving to Nanaimo.

In a letter adduced into evidence G.F. says that “Due to [omitted for publication] having many of our projects out of town, it was difficult for C.M. to be away from home for long periods of time.” However, C.M. adduced no evidence of being required to work out of town when he lived in Prince George for [omitted for publication]. To the contrary, he told Judge Gray he worked regular weekday hours so he was able to care for A.M. This is inconsistent with C.M. being compelled to relocate because his employment at [omitted for publication] required him to frequently work out of town. In this hearing he provided no

information about working out of town, such as locations, hours, or frequency of such projects. [ 110 ] I infer from C.M.’s conduct that he perceived B.F.’s situation to put him and A.M. at risk, which is why he suddenly left Prince George, curtailed his communications, assumed a new name, and got a new job and new place to live. Relocation [ 111 ] C.M. seeks to relocate with A.M. to Nanaimo. Relocation is governed by S. 69 of the Family Law Act (“FLA”) which says: 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.

(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 relocating guardian, 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 the child's relocation were not permitted. [ 112 ] The relocation issue in this case is complicated by a number of factors. First, L.H. does not live in Prince George. Although the parties legally had a shared parenting arrangement, the reality is the proposed move would not affect day-to-day parenting time arrangements L.H. had with A.M.

Whether A.M. lives in Prince George or Nanaimo, L.H.’s parenting time would still occur on school holidays and special occasions. [ 113 ] The real concern is that L.H.’s exercise of parenting time would be more difficult if A.M. moved to Nanaimo, which requires a much longer drive and necessitates the use of a ferry. If A.M. is placed in L.H.’s care, A.M. would be relocated to [omitted for publication].

This matter is further complicated by the fact that C.M. has effectively moved already despite there being a court order prohibiting relocation. [ 114 ] A.M. has an Aunt on her mother’s side in Prince George, but there is no evidence C.M. facilitates contact time with that Aunt. A.M. has no other extended family here.

The current childcare arrangements are suitable, being A.M.’s friend’s mother takes her to school and picks her up while C.M. is working, but those arrangements will not work if C.M. is required to consistently work out of town with [omitted for publication] as he alleges. [ 115 ] C.M. has already relocated. As such there is no evidence about what residence, neighbourhood or child care arrangements would affect A.M. if she were to remain in Prince George. As stated earlier, I have little evidence comparing C.M.’s new and old employment or what he would earn at each job.

It is not clear if C.M.’s job at [omitted for publication] is even available to him anymore, or with the same hours or location of work.

[ 116 ] C.M. gave no information about how his job at [omitted for publication] in Nanaimo is superior to the job he had in Prince George, except to the extent he says he does not need to work out of town. He provided no evidence of his location or hours of work. He did not attest to his rate of pay at [omitted for publication] or [omitted for publication], seniority, or positions at either location.

There is scant evidence upon which the Court can assess the proposed relocation plan and determine whether there is better employment in Nanaimo than Prince George. [ 117 ] I have found that C.M. suddenly moved to Nanaimo in June, 2019 because he perceived a risk to himself and/or A.M. arising from B.F.’s disappearance and murder. He no longer has a residence or employment in Prince George. I have no evidence of what childcare or other arrangements for A.M. are still available in Prince George.

In all of the circumstances, it is unrealistic to approach the relocation issue in terms of whether or not A.M. should live in Prince George or Nanaimo as the two locations cannot be meaningfully compared. [ 118 ] A.M. only lived in Prince George for a year and does not have family or other roots here. Other than to the extent Nanaimo is a less convenient location for L.H. to exercise parenting time, there is little favouring one City over the other.

In my view given the unique circumstances of this case, the appropriate way to approach the relocation issue is by considering whether it is in A.M.’s best interests that she live with her father or her mother as opposed to focusing on the criteria set out in s. 69 of the Family Law Act . Parenting Arrangements [ 119 ] In determining what the parenting arrangements should be going forward, I must consider the paramount principle of the best interests of the child as set out in s. 37 of the FLA , which provides: 37

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

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

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

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

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

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

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

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

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

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

a) the child's health and emotional well-being; [ 120 ] A.M. is generally a happy and healthy little girl. D.B. has known A.M. since she was a baby and describes her as always being a wonderful child. A.M. has spent most of her life in both parents’ or her mother’s primary care. I cannot conclude that A.M.’s character is solely attributable to the last year she has spent in her father’s care. [ 121 ] I do have concerns, outlined later in these Reasons, about the impact C.M.’s temper has on A.M.

While I accept L.H. and C.M. argue with each other, there is no evidence to suggest L.H. has behaved intemperately in front of A.M. [ 122 ] I have some concerns about A.M.’s safety in C.M.’s care in light of the highly suspicious circumstances in which he left Prince George and moved to Nanaimo. I found C.M.’s explanatory evidence about his motives to be unsatisfactory.

I infer in all of the circumstances that C.M.’s sudden move was in some way influenced by a perceived danger should he remain in Prince George. [ 123 ] In my view, A.M.’s health and emotional well-being are better served in her mother’s primary care. (

b) the child's views, unless it would be inappropriate to consider them; [ 124 ] Given A.M.’s young age, I do not consider it appropriate to consider her views. The evidence before me suggests she is bonded to both of her parents.

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c) the nature and strength of the relationships between the child and significant persons in the child's life; [ 125 ] A.M. has no connections to anyone in Nanaimo and few connections in Prince George. C.M.’s sister lives in [omitted for publication] but that is an hour away from Nanaimo. [ 126 ] By contrast, A.M. has considerable family and friend connections in [omitted for publication] where she spent much of her young life. She spent considerable time in the care of her grandmother, D.B., growing up. In that capacity she grew up alongside L.H.’s step-siblings, J. and A.

A.M. is very close to the children of L.H.’s long term friends and spent a lot of time with them when living in [omitted for publication]. A.M. has a much broader network of family and friends in [omitted for publication] then in Prince George or Nanaimo. (

d) the history of the child's care; [ 127 ] I find A.M. was primarily in L.H.’s care for most of her life. Before the summer of 2018, A.M. was always in L.H.’s care when the parties were separated. C.M. spent a lot of parenting time with A.M. when he lived with D.B. in [omitted for publication], but I find L.H. was the generally the default and primary caregiver for A.M. A.M. was in L.H.’s care while C.M. was in Surrey in 2013. From the summer of 2014 to the spring of 2016, A.M. was in L.H.’s care while C.M. worked in [omitted for publication] and then Ontario.

From the summer of 2016 to 2018, A.M. was exclusively in L.H.’s care in [omitted for publication] while C.M. lived in Prince George. [ 128 ] I find C.M. made the move to Prince George because he was unhappy and wanted to “work on himself” as he claims. I do not accept the suggestion that his actions were justifiable because he had an order for shared parenting time and he was not “getting his 50/50.” First, as explained above, I am not satisfied C.M. ever tried to pursue a weekly alternating parenting arrangement or that he had the means to care for a three year old child on weekdays when he worked.

He was enjoying weekend parenting time and unrestricted parenting time on weekdays when he was off work. [ 129 ] Secondly, even if his failure to get “50/50” was his reason for leaving town, I find that rationale immature and selfish. It was not in the best interests of A.M. that her father leave her because, although he was getting lots of parenting time, has was not getting everything he felt entitled to. His actions demonstrate a lack of commitment to caring for A.M. [ 130 ] A.M. has only been in C.M.’s care for a year.

I find L.H. did not accede to this arrangement, rather, C.M. took A.M. for the summer holiday visit and filed for majority parenting time, following which he simply kept A.M. Before June 2018, I find it that A.M. was consistently in L.H.’s care when the parties were separated. (

e) the child's need for stability, given the child's age and stage of development; [ 131 ] I find L.H. can offer the most stability for A.M. She lives in the same town, in the same neighbourhood and near the same friends and family members that A.M. has known most of her life. D.B. has consistently provided childcare for A.M. since she was an infant, and A.M. has her own room at D.B.’s home. A.M. can attend the same school she attended for kindergarten and where her step- siblings attend. She is friends with many of the children of L.H.’s friends and family.

L.H. has always lived in [omitted for publication] since A.M. was born except when she followed C.M. to Prince George and Vancouver Island. She is entrenched in [omitted for publication] with her family. The life L.H. can offer A.M. in [omitted for publication] is familiar. [ 132 ] C.M.’s situation is far less stable. He has not lived in any one city for more than two years since A.M. was born. He suddenly departed Prince George in June, 2019 for Nanaimo where A.M. has no connections, familiarity or history. He has secured a less than ideal living situation there which he says is temporary.

A.M.’s residence, school and child care could easily change with a move to a bigger house. I find A.M. would have greater stability in L.H.’s care than C.M.’s. (

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; [ 133 ] Both parties have demonstrated the ability to feed and look after A.M.’s day to day needs, however, I find L.H. is better able to exercise her parental responsibilities. [ 134 ] C.M. argues that A.M. is doing very well in school in his care. A.M. is meeting grade level expectations but not exceeding them.

She is below grade expectations in English Arts and needs extra tutoring supports for reading. It was D.B.’s impression that A.M. regressed in reading since being in C.M.’s care. A.M. does excel socially. Given the history of A.M.’s care, which includes the influences of L.H. and D.B., I cannot attribute A.M.’s social successes solely to her father’s care over the last year. [ 135 ] L.H. has consistently demonstrated the ability to arrange for appropriate childcare for A.M.

When L.H. is working, A.M. has been and will be cared for by her grandmother, D.B. or L.H.’s best friend, R.T., who A.M. has known her whole life. These are suitable and appropriate caregivers. In the absence of L.H., C.M. sought a condition in the 2014 Alberta Court Order that D.B. have the right of first refusal to care for A.M. when A.M. required child care.

I infer that at the time of the application C.M. considered D.B. to be his first choice to look after for A.M. [ 136 ] L.H. has made proper arrangements for A.M. to get to and from school, either by walking with Ashton, or being driven by L.H., D.B., or D.B.’s husband. [ 137 ] I do not consider the isolated incident where D.B. threw a glass at her husband in the garage to be of any concern and do not think that weighs against D.B.’s ability to care for A.M. D.B. has been a stay at home caregiver her whole life and looks after her two- step children.

I accept her home is subject to schedules and routines and there are Sunday family dinners and family outings. The children attend a Catholic school with a good education program. L.H. lives in a townhouse where A.M. will have her own room, which L.H. shares with another female friend she has known her whole life. She has identified specific extracurricular programs, such as dance, in which A.M. can be enrolled.

[ 138 ] By contrast, I find C.M. is less capable of exercising his parental responsibilities. The circumstances in which he took A.M. and suddenly left Prince George after B.F. was found murdered were totally irresponsible. The authorities were treating A.M. as a missing person. C.M.’s best friend and A.M.’s “uncle,” with whom they had lived for a year, had been missing then found murdered. C.M. had to have known that friends, family and authorities would want to communicate with him to ensure A.M.’s well-being. I do not believe he was incapable of communicating.

To allow everyone to wonder and panic about A.M.’s safety demonstrated extremely poor judgment. [ 139 ] Further, I have found the circumstances in which C.M. suddenly left Prince George, moved, and changed his name, to be highly suspicious. To the extent C.M.’s priority is to “get away” and get a “fresh start,” this is not the ideal situation in which to involve a young child, as her needs and stability cannot be the priority. [ 140 ] C.M.’s plan is for D.R.’s mother, who did not testify in this proceeding, to look after A.M. after school. According to C.M., S.R. works full time at a hotel where she lives.

S.R. did not testify and C.M. adduced no letters or affidavits from her. I have no information originating from S.R. herself about her willingness and ability to take on the responsibility of looking after A.M. every day after school. Her son, D.R., seemed ambivalent about whether or not his mother would look after A.M., saying “I don’t know” and “she might be” when asked about those arrangements. [ 141 ] The absence of confirmation from S.R. is of concern in light of C.M.’s representation to this Court on September 4, 2019, that he and A.M. could stay with J.S. pending the conclusion of the trial.

In fact he did not have J.S.’s permission and had to stay elsewhere. In my view, it is hard to put much weight on C.M.’s representations about child care that individual third parties will provide without some form of confirmation from those parties as to their level of commitment. [ 142 ] I also have concerns about S.R.’s suitability as a support caregiver. According to L.H., after A.M. was born in 2012, L.H. and C.M. moved into a home they rented from S.R.. The heat and hot water were cut off and when L.H. tried to get a hold of S.R. to fix it, she found S.R. to be incomprehensible and intoxicated.

L.H. believes S.R. is an alcoholic. L.H. and C.M. ultimately learned the residence they were renting had been repossessed by the bank, S.R. was bankrupt, they had no permission to rent there, and the young family had to move out in 48 hours. [ 143 ] C.M. says there is a male who lives downstairs in the house he shares with D.R. in Nanaimo. C.M. says this man can walk A.M. to school in the mornings. Again, I have no information originating from this man about who he is and whether he is committed to caring for A.M. in the mornings when C.M. goes to work.

I understand this man to be a stranger to A.M., who is barely seven years old. [ 144 ] I also have concerns about C.M.’s judgment when it comes to securing appropriate living conditions for A.M.: 1. When A.M. was 10 months old, D.B. went to pick up A.M. in Prince George after a stay with C.M. D.B. found A.M. living in unsanitary conditions with a resident pit bull. C.M. took advantage of D.B.’s presence to go socialize with his friends and did not get up to attend to A.M. in the middle of the night; 2.

When C.M. took A.M. in the summer of 2018, he moved her in with B.F., an individual C.M. knew had a drinking problem and engaged in in criminal and drug related activities. When L.H. was pregnant with A.M. in 2012, she and C.M. lived with M. and B.F. when their residence was involved in a shooting. The risk of sharing a residence with B.F. ought to have been apparent to C.M. when he moved A.M. into that environment; 3. After B.F.’s murder, C.M. gave up his apartment in Prince George and unilaterally moved to Nanaimo despite being subject to a court order which expressly prohibited him from relocating A.M.

In doing so he substituted a residence in which A.M. had her own room to a residence which requires A.M. and her father to share a small bedroom; and 4. I enforced the non-relocation order on an interim basis on September 4, 2019, and ordered A.M. not be moved from Prince George pending the outcome of the hearing, which was anticipated to conclude in a week. During that time period C.M. chose to reside with A.M. at R.T.’s house. Photos taken of R.T.’s house by L.H. show various adult males showing up at the residence with cases of beer, multiple parked cars, and A.M. in the driveway with C.M.

In my view this was a questionable living environment for a young girl, even on a temporary basis. [ 145 ] In my view L.H. has exercised her parental responsibilities in a manner which better reflects A.M.’s best interests and provides her the most security and safety. (

g) the impact of any family violence [ 146 ] There have been no incidents of physical harm between the parties. I do not consider D.B.’s incident of throwing a glass to be of any significance to this analysis. While C.M. has never physically harmed A.M. or L.H., I find he has difficulties managing his anger, the impacts of which are relevant in assessing parenting arrangements. [ 147 ] I accept the evidence of J.S. and D.R. that L.H. and C.M. provoked each other and often communicated angrily, however, I find C.M.’s hostility towards L.H. is especially acute.

In this hearing C.M. was represented by counsel while L.H. was unrepresented. I found L.H. to be calm and respectful throughout these difficult proceedings, while C.M. made little effort to contain his animosity towards L.H. C.M. was disrespectful, argumentative and flippant during L.H.’s cross-examination of him. He stormed out of the courtroom. At one point L.H. lost her composure when discussing how she missed her grandmother’s funeral and started crying.

I observed C.M. to be smiling with apparent pleasure. [ 148 ] C.M. admits that he once got in a fight with a family member while intoxicated at a residence where A.M. was awake and in an adjacent room. During this fight he broke a window of the front door. This was all done in hearing distance of A.M. [ 149 ] D.B. had many opportunities to observe interactions between C.M., L.H. and A.M. She testified that she frequently observed C.M. to scream and swear at L.H., including in front of A.M.

She attested to observing A.M. talking to C.M. on Skype in the presence of D.B.’s stepchildren, and hearing C.M. swear at D.B.’s stepchildren, bringing J. to tears. On another occasion, C.M. gave J. and A. the

middle finger while A.M. was face-timing C.M. and the children were all in view. [ 150 ] D.B. says one time when police were called to attend a confrontational parenting time exchange, C.M. mounted his iPad on the dashboard of his vehicle while face-timing A.M. He proceeded to carry out a conversation with the police officer that was broadcasted to A.M. The officer had to tell C.M. to shut off the iPad as it was inappropriate. [ 151 ] I find C.M. was angry and caused a scene which upset A.M. when he picked her up on December 27, 2018, following the ex parte order.

He admits this impaired his relationship with A.M. afterwards and he had to rebuild it. C.M. also terrified his daughter by acting as a human barrier to L.H.’s truck in August, 2018. [ 152 ] I accept D.B.’s evidence that C.M. can be explosive, quick to anger and is not afraid to use sexualized and misogynist

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