T.E.P. v. M.R., 2023 BCPC 23

Citation: T.E.P. v. M.R. 2023 BCPC 23 Date: 20230202 File No: 18661 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: T.E.P. APPLICANT AND: M.R. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Appearing on his own behalf: T.E.P. Appearing on her own behalf: M.R. Place of Hearing: Kamloops , B.C. Dates of Hearing: January 16, 2023 Date of Judgment: February 2, 2023

[ 1 ] This is the application of T.E.P. for an order prohibiting the relocation of a child. The child in question is R.T.P., born [omitted for publication]. T.E.P. is the biological father of R.T.P. and M.R. is the biological mother. [ 2 ] Neither parent lives where the child was originally residing, in [omitted for publication]. T.E.P. moved some time ago to Quesnel and M.R. has now moved to Penticton. This hearing was set in Kamloops on the Order of Judge Doulis with the file being transferred here for all purposes from [omitted for publication].

The reasoning I gather is that the lawyer for the child, Heidi Zetzsche, suggested it as a partway point. This court otherwise has no connection with the child, the parties or the evidence. [ 3 ] T.E.P. has the child residing with him at present with parenting time available to M.R. M.R. wishes to have the child move with her but the child objects. If the child is not to be residing with her primarily, M.R. would like firm parenting time established. [ 4 ] With respect to the exchanges of the child for parenting time, both parties agree that [omitted for publication] is a suitable halfway point.

There are some complications with respect to exchanges because T.E.P. is an [omitted for publication] and so his

schedule varies from time to time. M.R. is struggling financially with her move to Penticton and cannot afford to travel to Quesnel to pick up R.T.P. for her parenting time. [ 5 ] There is an application respecting child support which is dependent upon the outcome of this application. That hearing is set for an informal trial on February 8, 2023. [ 6 ] R.T.P. is 13 years old. His lawyer, Ms. Zetzsche appeared at the commencement of the hearing to update the court on R.T.P.’s views. On May 4, 2022, a letter of instruction was filed indicating that R.T.P. wanted to live with his father.

He wanted parenting time with his mother to be subject to his wishes with no regular parenting time set. [ 7 ] A Views of the Child Report was provided on July 20, 2022. At page 4 of that report, R.T.P. indicated to the writer that he wanted to live with his father and have every second weekend with his mother. [ 8 ] Ms. Zetzsche spoke with R.T.P. the morning before this hearing commenced. He advised her that he still wants to live full time with his father. He was satisfied to have parenting time subject to his wishes.

If he does remain living with his father, he would like Christmas and summer to be shared with each parent. For 2023, he would like Christmas and spring break with his mother, as well as two weeks with his mother in the summer. Thereafter, he would like to alternate Christmas and spring break and have two weeks of summer with his father. This was a proposal that R.T.P. up with for himself. [ 9 ] R.T.P. was born in [omitted for publication] when the parties had already moved to [omitted for publication] for T.E.P.’s employment. They separated in 2012. Because of T.E.P.’s unstable

schedule with the [omitted for publication], they decided that her job as a teacher assistant was better suited to having both of the children for the majority of the time. There was also their first child, B.P., at the time. She is now an adult. [ 10 ] T.E.P. says that he was actively involved with the children when they were with him. In the fall of 2015, he accepted a [omitted for publication] position, which created a more stable schedule. He was four days on, four days off with no on-call obligations. This permitted him to have both of their children more consistently. [ 11 ] In 2016, T.E.P. remarried.

His wife is a [omitted for publication]. In 2017, she acquired a position in Quesnel. There were no opportunities for her in [omitted for publication] and T.E.P.’s employment was more portable. He also found that working in [omitted for publication] for 10 years had created a difficult situation for him socially. [ 12 ] T.E.P. divorced his second wife in 2019 and purchased a home for himself. He subsequently sold that home in February 2022 and purchased a three bedroom home. This was because B.P. and her partner had a child and he also had R.T.P. or parenting time.

T.E.P. said R.T.P. came as much as possible but there were multiple weekends in a row where T.E.P. was working his varying shifts so he could not have R.T.P. with him. With R.T.P. being in school, the only time he could come was on weekends. [ 13 ] T.E.P. was able to have R.T.P. at Christmas, spring break and summer. T.E.P. would take time off work to have more time with R.T.P. [ 14 ] In February 2022, R.T.P. texted him that he had bad news and wanted to call. A couple of hours later, M.R. called T.E.P. to tell him that she had a job in Penticton and would be moving at the end of March, taking R.T.P. with her.

T.E.P. raised the possibility that R.T.P. might want to live with him but M.R. said she could not afford to move if she did not have R.T.P. with her. She said her plan for the move had been based on R.T.P. going with her and could not be changed. [ 15 ] M.R. told him that she had been planning the move carefully for months. However, it is clear that she did not give written notice to T.E.P. or discuss her plans more concretely than to say that she would need to clear out their daughter and son’s stored items from her home to sell it if she moved.

There was nothing more specific discussed. [ 16 ] T.E.P. feels that R.T.P. is mature enough to make a decision about which parent he wants to live with. T.E.P. is also concerned that R.T.P. would be isolated from his sister B.P. and his nephew, E. He said that M.R. and B.P. are not on speaking terms due to another matter not relevant to these proceedings. [ 17 ] T.E.P. is also concerned that the distance between Penticton and Quesnel is a seven to eight hour drive, which would mean that he would have less parenting time with R.T.P.

R.T.P. also has friends in school and outside of school and he would be away from them. [ 18 ] After T.E.P. filed an application to prevent the move and M.R. filed an application about a family law matter seeking permission

to move, the court made an interim order that because there was no other parent in [omitted for publication] M.R. had permission to move R.T.P. with her to Penticton. T.E.P.’s reply to the application had been filed but the judge did not have access to it on the day of that hearing. [ 19 ] What ensued was a battle of the wills between R.T.P.’s parents. On March 22, 2022, R.T.P. went to his father for parenting time. The time was supposed to last until April 1 and M.R. was supposed to pick R.T.P. up on her way back to Penticton.

However, R.T.P. was insistent that he would not be moving with M.R. [ 20 ] Two specific instances which created very hard feelings for R.T.P. involved the sale of M.R.’s home in [omitted for publication], and a trip with his father to the coast. In the first incident, T.E.P. had said he would store the children’s belongings in his new home and made arrangements for picking them up. There was a good deal of time pressure on M.R. to have the items removed before the sale of the home. The parties did not communicate well on this issue. However, ultimately, T.E.P. showed up at M.R.’s home to pick up the items.

R.T.P. met him but did not have a key to the house even though R.T.P. lived there. They went to M.R.’s place of work where R.T.P. asked for the key. She would not give him the key. The parties returned to the home. M.R. wanted to be present when they removed the items, although she had already sent a photograph of the items that were stored. B.P. was also present to assist T.E.P. She said she knew a way into the home and evidently broke in. There is no suggestion that T.E.P. had anything to do with the children breaking into the house; only that they said they knew a way in.

They removed all of the items they were supposed to remove, and nothing more. M.R. called the police before she attended the house. She did not ensure first what they were removing. She told the police that T.E.P. had broken into her home. This was not true. The child, R.T.P., lived in the house and was entitled to enter it. Both B.P. and R.T.P. were entitled to the removal of their belongings. They were not entitled to cause damage but I am not satisfied that they did so, or that T.E.P. had any

part in it. [ 21 ] The second incident was when R.T.P. was supposed to be dropped off at his mother’s temporary home in Penticton. T.E.P. was the one who called the police this time, hoping for a “keep the peace” escort. This was because there had been much dispute back and forth about whether R.T.P. would be going to Quesnel with him or remaining behind with M.R. R.T.P. had made it clear that he would not be going to stay with his mother. [ 22 ] T.E.P.’s evidence is, and I have heard nothing to contradict it, that he told his son he would have to go with his mother for the time being. However, R.T.P. refused.

M.R. had refused to give R.T.P. his clothing and school supplies and so R.T.P. wanted to stop and pick those up. M.R. was clearly in the wrong on this. Placing R.T.P. in this situation is unacceptable. He should have been permitted to take his school items and his clothing and to attend school where he wanted to be until the relocation issue could be resolved at court. [ 23 ] Ultimately, a court order was made that permitted R.T.P. to live with T.E.P. on an interim basis. [ 24 ] M.R. had a very valid reason for moving out of [omitted for publication].

She had only reluctantly gone there with T.E.P. originally because she had hoped they would eventually move out. She did not like living there but made no effort to leave in the 10 years that transpired between the separation from T.E.P. and her move to Penticton, even when T.E.P. no longer lived in [omitted for publication]. Her explanation for this was that she was putting the children first. However, COVID had a significant impact on her, as it did many people. She found [omitted for publication] to be very isolating and away from her supports.

Added to this, she was not on speaking terms with her daughter so did not have an additional connection to [omitted for publication] that would keep her there. It should be noted, that in the meantime, M.R. became a [omitted for publication]. She had employment in [omitted for publication] in that capacity. [ 25 ] M.R. was applying for positions to transfer either to Vancouver or Penticton and did tell T.E.P. of her intention through conversation.

However, there were no concrete plans put in place and no discussion about what would transpire with R.T.P. if she should obtain such a position. [ 26 ] M.R. did ultimately obtain employment with the same income in the same capacity in Penticton. However, she could not afford the change in the cost of living without the child support payments she received for R.T.P.

Consequently, her planning had contemplated that whatever home she purchased and whatever move she made would have to see that child support payments continue. [ 27 ] While this is a valid reason for M.R. to move, given R.T.P.’s very firm position about remaining in the north - specifically in Quesnel - given his age, and given his connections with his old and new communities, it was not in R.T.P.’s best interests to make that move for him. He has no connections in Penticton and has settled in well in Quesnel. He has very firm views about remaining there.

M.R. also clearly cannot afford to fulfil her obligations as the moving parent to ensure that R.T.P.’s relations in Quesnel can be maintained by her. [ 28 ] I find that it is in R.T.P.’s best interests to remain in Quesnel where he has now settled in to a community much like he had in [omitted for publication]. He shall remain living with his father. [ 29 ] Parenting time with M.R. shall be largely as R.T.P. requested. However, R.T.P. will be living primarily with his father. Consequently, to put parenting time in as sought by R.T.P. would be inadequate parenting time with his mother.

Essentially, he would ostensibly not see his mother at all in alternating years. The order for parenting time I make will ensure that he has the appropriate parenting time with his mother that takes into consideration his wishes, the distance between his parents, and the need for both parents to participate in his parenting. [ 30 ] M.R. will have parenting time with R.T.P. in odd-numbered years for spring break. In even-numbered years, T.E.P. will have parenting time with R.T.P.

R.T.P. would like to see two weeks of the summers in one year devoted to parenting time with his mother and two weeks of the summer in the next year devoted to parenting time with his father. That would not give R.T.P. adequate parenting time with his mother. M.R. shall have three weeks parenting time with R.T.P. each summer. The dates are to be agreed between the parties. However, if the parties cannot agree, M.R. shall have parenting time with R.T.P. from July 1 to 21.

Christmas vacation from the end of school to the Saturday before school recommences shall alternate with M.R. having parenting time with R.T.P. in odd-numbered years and T.E.P. having parenting time with R.T.P. in even-numbered years.

[ 31 ] The exchange point for R.T.P. shall be at [omitted for publication] when it is possible for both parents to attend for the exchange. The distance between Penticton and Quesnel is approximately 625 kilometres. The Canada Revenue Agency mileage rate is presently $.68/km, amounting to $425 each way. If one parent is unable to meet in [omitted for publication], they shall reimburse the other parent the sum of $212.50 before that parenting time to compensate for the costs. This applies to each direction that the respective parent cannot travel.

This order with respect to compensation for travel time is subject to any order the court may make on February 8 or thereafter on the child support applications. [ 32 ] I am also leaving to the hearing judge the issue of the location of this court file. As I have said, there is no connection with this file and Kamloops. Rule 7(1) requires that the proceedings be commenced in the location where an existing case is ([omitted for publication]) or where the child ordinarily resides. It seems to me that once the child support application is resolved, this file should probably be transferred back to Quesnel.

I leave that, as I say, to the hearing judge. [ 33 ] Finally, there is the issue of the parenting responsibilities. It does not appear that a final order for parenting responsibilities was ever made. That being the case, pursuant to s. 40(2) of the Family Law Act , T.E.P. and M.R. will share equally all parental responsibilities for the child as set out in s. 41 of the Family Law Act : (

a) Making day to day decisions affecting the child and having day to day care, control and supervision of the child; (

b) Making decisions about where the child will reside; (

c) Making decisions respecting with whom the child will live and associate; (

d) Making decisions respecting the child’s education and participation in extracurricular activities, including the nature, extent and location; (

e) Making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is/are an aboriginal child, the child's aboriginal identity; (

f) Subject to s. 17 of the Infants Act , giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child; (

g) Applying for a passport, licence, permit, benefit, privilege or other thing for the child; (

h) Giving, refusing or withdrawing consent for the child, if consent is required; (

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

j) Requesting and receiving from third parties health, education or other information respecting the child, except in relation to health care provided pursuant to s. 17 of the Infants Act ; (

k) Subject to any applicable provincial legislation; (

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

l) Exercising any other responsibilities reasonably necessary to nurture the child’s development. [ 34 ] Parental Responsibilities must be exercised as follows: (

a) T.E.P. and M.R. will have the obligation to advise each other of any matters of a significant nature affecting the child; (

b) T.E.P. and M.R. will have the obligation to discuss with each other any significant decisions that have to be made concerning the child, including significant decisions about the health (except emergency decisions), education, religious instruction and general welfare; (

c) T.E.P. and M.R. will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions; (

d) In the event that T.E.P. and M.R. cannot reach agreement on a significant decision despite their best efforts, the parents will be required to mediate from Family Justice or private mediation services. In the event that the mediation is unsuccessful, T.E.P. will be entitled to make those decisions and M.R. will have the right to apply for directions on any decision considered to be contrary to the best interests of the child, under s.49 of the Family Law Act . ________________________________ The Honourable Judge S.D. Frame Provincial Court of British Columbia