L.A. v. D.T., 2019 BCPC 181

Citation: L.A. v. D.T. 2019 BCPC 181 Date: 20190801 File No: 19-30869 Registry: Bella Bella IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: L.A. APPLICANT AND: D.T. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B.G. HOY

Counsel for the Applicant: C. Reeves Counsel for the Respondent: W. Cook Place of Hearing: Bella Bella , B.C. Date of Hearing: May 9, 10 & July 15, 2019 Date of Judgment: August 1, 2019 OVERVIEW [ 1 ] This is a re-location application by the mother L.A. Her plan is to move to the Vancouver Lower Mainland area from [omitted for publication] with their son T. who is currently 6 years old. The father D.T., opposes the move. [ 2 ] The mother has lived in [omitted for publication] for 13 years. She obtained employment as a teacher with the [omitted for publication] Nation.

The parents were together from 2010 until 2017. Their child was born in 2013. The father is employed with the Coast Guard for the past 14 years. The mother is 39 and the father is 44 years old. She is white and he is aboriginal and a member of the [omitted for publication] Nation as is the child. [ 3 ] There are no family court orders or written agreements in place addressing guardianship or parenting time. Thus the provisions of s. 46 of the Family Law Act ( FLA ) applies to this application. Since separation the parents have consistently shared the child equally between them.

They communicate well and enlist the assistance of the father’s parents as they juggle their work and time off schedules for their respective parenting times. They are dedicated, capable and loving parents and are committed to ensuring their child’s best interests are at the forefront of their considerations. They are however unable to resolve this difficult question of relocation. THE LAW [ 4 ] Counsel have referred to the following cases: (

a) B.E.M. v. J.T.B. 2017 BCPC 174 (

b) M.S. v. N.H. 2017 BCPC 299 (

c) M.M. v. C.J. 2014 BCSC 6 (

d) K.G.M. v. K.R. 2016 BCPC 394 [ 5 ] In review, these relocation decisions discuss the various considerations mandated by the FLA and how the facts are assessed within the legislative framework. Three of the decisions deal with Division 6 of the FLA . By s. 65(2)(

b) this Division applies where there is an existing order or written agreement respecting parenting time. Depending upon whether there is equal or unequal parenting time a presumption of best interests may arise. Specifically s. 69(4) addresses the situation where there is unequal parenting time in which case the relocating parent must establish that the proposed relocation is being made in good faith and reasonable and workable arrangements for parenting time is proposed.

If this has been established then the presumption is that the move is in the best interests of the child unless the opposing party establishes otherwise. By s. 69(5) where there is substantially equal parenting time then the presumption does not apply and the relocating guardian must establish not only good faith and reasonable parenting time alternatives but as well must establish why the proposed move is in the child’s best interest. [ 6 ] Within s. 69(6) is a list of statutory considerations that defines what is good faith in any proposed relocation.

In addition to all relevant factors this includes the reasons for the move, whether there is a likely enhancement of the child’s quality of life and increased emotional, financial or educational opportunities for the relocating parent. [ 7 ] In determining what is best interests, by s. 37(2) all the child’s needs and circumstances are to be considered including a number of specific considerations pursuant to ss. (

a) to (j). [ 8 ] In the case at bar, as there are no written agreements or orders respecting parenting arrangements, then s. 46 applies to a relocation application. The statutory considerations are different from that contained in Division 6. Presupposing that the residence change of the child will have a significant impact upon the other guardian, then the evaluation of the facts focuses on best interests as set out in s. 37(2) and the reasons for the change. Absent is any statutory consideration of good faith or an evaluation of workable parenting time alternatives. However, as commented in D.M. v.

E.M., 2014 BCSC 2091 and as referred to in M.S. v. N.H. , all jurisprudence relating to relocation assists as the best interest test is consistently applied throughout. One must however be mindful of the different statutory considerations of s. 46 versus s. 69(5). In the latter there is a higher onus on the applicant with regard to the added elements of good faith and reasonable and workable alternatives for parenting time.

For the purposes of this application these latter two considerations shall be weighed in the context of best interests and reasons for the change in keeping with the legislative scheme set out in s. 46. [ 9 ] Of the various decisions referred to, M.S. v. N.H. dealt with the situation where there was an absence of any orders or written agreements governing parenting time. It was submitted that this authority stands for the proposition that the elements set out in s. 69(5) also applies to an s. 46 application.

With respect, as I read this decision the court was quite cognizant that s. 46 governs the application although the court also considered the statutory elements of s. 69(5) in its evaluation within the context of an expanded assessment of all jurisprudence assessing the child’s best interests and the reasons for the proposed change of residence. In a similar manner this court shall likewise weigh the evidence. In M.S. the court added that this was done in fairness to the father where he had substantial parenting time during the party’s separation of 8 years.

REASONS FOR RELOCATION [ 10 ] The mother lives in the community of [omitted for publication]. It has a population of approximately 1500 and is predominantly

aboriginal. For the past 13 years she was employed as a teacher with the [omitted for publication] Nation School. Her connection to the community is through employment. The mother has described how her social relationships have shrunken in the community since her separation. That she does not attend many of the family functions. Her social circle revolves around other teachers. There is a sense of isolation. She states there is job insecurity working for the band’s school. It is non-union with contracts of 3 year terms.

She notes she has always had her contract renewed for which she feels honoured but she is now at the end of her most recent 3 year term. While her employment is technically at an end she describes there is an option to review the situation. It is quite apparent she is a highly regarded teacher. [ 11 ] In describing why she wants to relocate she notes the lack of job security and her critical view of the direction of education at the school. She also observes greater opportunities for more diverse extra-curricular activities for T.

As well, a move to the Vancouver Lower Mainland area would give her access to possibly pursue further academic studies at either UBC or SFU for a Master’s degree. [ 12 ] She also explains she is in a new relationship with D.P. whom she has known since March 2018. She describes they have been a couple over the past 6 – 7 months. The mother and her boyfriend have recently rented a house in [omitted for publication]. It is 3 blocks from the elementary school that T. would attend. [ 13 ] D.P. is 40 years old and is employed as a staff coordinator with [omitted for publication] since January 2018.

Prior to that he was a manager at [omitted for publication] for 20 years. He explains he fully supports the mother and T’s relationship with his father. His interaction with the child has been positive. [ 14 ] As she pursued her plans she received a conditional offer of employment as an on call teacher with the [omitted for publication] School District commencing September 2019. [ 15 ] As I consider these collective explanations for the proposed move I find they are reasonable.

It is understandable that her quest for job security, enhanced socialization with a new boyfriend, the prospect of possibly pursuing her educational advancement and enriched educational opportunities for T. are legitimate pursuits. They are not in the nature of some ulterior motivation to deliberately disrupt the father’s relationship with T. BEST INTERESTS OF THE CHILD [ 16 ] The proposed residence change will have a significant impact upon the father. There are a number of best interest considerations that must be weighed. [ 17 ] The parents have been separated for about the past 2 ½ years.

It is quite evident they are devoted to T. They coordinated their work and holiday schedules to accommodate one another for the purposes of T’s school and day care arrangements. The paternal grandmother, is part of the child care plan. The father lives on [omitted for publication] on the same property as his parents while the mother lives on [omitted for publication]. His residence is on the same island as his place of employment. Likewise, the mother lives on the same island as her place of employment. It is about a 20 minute ferry commute between the two locations.

Their usual pattern of child care while working was a rotation between them every 3 to 4 days. It required weekly planning with adjustments made if the father was called out to work in which case his parents would often take over child care with makeup days arranged later. Holidays were also planned with each parents

schedule in mind. In the first summer after separation they took the additional step to coordinate their plans to travel together for the benefit of the child. While there were wrinkles from time to time, everyone worked towards the best arrangements possible to ensure T. was well cared for. Furthermore, there is a strong bond between the child and the grandparents, especially the grandmother, given her active role in child care. For the first 2 ½ years of his life she provided day care. [ 18 ] T. is described as a bright social child with strong reading skills and a love for learning.

His kindergarten reports confirms this. While there is some indication of impulsivity and he seems not to have a best friend, overall he appears to be a content child. The mother is concerned over the lack of education enrichment opportunities and some of the school’s educational shortcomings in [omitted for publication]. In the [omitted for publication] area there is an abundance of extra circular activities plus other resources such as after school care programs.

She has observed that during her visits to [omitted for publication] T. has been interacting well with the other children in the area and expects he will easily adjust. [ 19 ] The [omitted for publication] Nation has a strong cultural connection to their heritage. It is part of T.’s upbringing. The mother appreciates this and wants to encourage it. She wants him to identify as [omitted for publication] and with his aboriginal culture.

Her plans include taking him to potlatches and returning to [omitted for publication] for family connections during spring, summer and Christmas school breaks. [ 20 ] To further maintain family ties and [omitted for publication] culture the mother notes that the father has 2 sisters who live in the lower mainland area, one of whom was a [omitted for publication] language teacher in [omitted for publication]. Her plans included enlisting their assistance in teaching the [omitted for publication] language to T.

There is as well an Aboriginal Friendship Centre in [omitted for publication] that she intends to utilize to maintain T.’s connection to his culture. She also observes that all schools in BC have aboriginal core programs. [ 21 ] The mother appreciates there is a strong love and bond between T. and his father. [ 22 ] As the father described T.’s upbringing, he is immersed in the [omitted for publication] culture. It is part of the child’s life and upbringing.

Through communal functions like potlatches, dances and other ceremonial and social events it is part of his connection to his community, culture and self-identity. His grandparents, uncles and aunties are a distinct part of a culture which he shares through their activities and language. At school he demonstrates excellent [omitted for publication] language skills. [ 23 ] Additionally the father is teaching T. boating skills.

It is his connection with the ocean and [omitted for publication] territory that the father shares with the child as they explore the [omitted for publication] area. [ 24 ] The father describes how he loves being a parent. He notes the same of the mother. Likewise he appreciates T. would miss his

mother terribly if she moves but raises the importance of remaining in the community and being raised as a member of the [omitted for publication] Nation. [ 25 ] The mother’s extended family live in the Victoria and Nanaimo area. She does not get along with her father. There is not the same depth of connection with her family as compared to the father’s. [ 26 ] One critical observation by the mother is her view that the father drinks too much. She puts it in the context of unhealthy choices.

He does not deny that he consumes alcohol but says it is in circumstances that does not negatively impact child care obligations. The father does not have a criminal record. It is noted the overall evidence does not point to alcohol as problematic to the father or the welfare of T. [ 27 ] As the mother recognizes the impact her relocation will have on the father’s parenting time she has proposed that he would have contact during all periods of time while T. is on break from school. Specifically summer, Christmas and spring. Furthermore, she intends to have him attend special cultural events such as potlatches.

She also proposes she would pay for the expenses of travel which would be by ferry unless there are special events in which case she plans to fly with him to [omitted for publication]. Additionally, as the father has shift work of 3 weeks on and 3 weeks off, her thought is he could come for week long visits to the lower mainland area during his off times. Furthermore, given travel costs, she proposes those expenses be offset by the father not paying child support.

As I reflect on her proposals for parenting time, I find these arrangements to preserve the father’s relationship with T. are reasonable and workable. [ 28 ] The father in his turn has proposed the same school break parenting time terms for the mother if T. remains with him. Depending on the circumstances of his work schedule, his thought is to travel with T. and possibly meet the mother either ½ way or at other transfer points en route to [omitted for publication]. He also stated he would be able to enlist the assistance of relatives for transportation if necessary.

DISCUSSION AND CONCLUSIONS [ 29 ] This has been a particularly difficult decision. As I have already observed the mother’s reasons for relocating are reasonable. As well her plan for the father’s parenting time are also reasonable and workable. There is no doubt the proposed relocation will have a significant impact on T.’s relationship with the father. [ 30 ] Both parents are committed to the welfare of their child.

They are a model of co-parenting as they consistently and collaboratively arranged their work and personal schedules to ensure T. is properly cared for and surrounded with love, affection and security. I accept they have T.’s best interests at heart. Each acknowledges that the other has a deep love and bond for T. and likewise each acknowledges of the other that with a relocation it will cause the child to miss the absent parent.

It is reasonable to say that the child’s emotional well-being would be affected. [ 31 ] The history of T.’s child care also involves his paternal grandparents and particularly his grandmother. They have filled the gaps in child care when the parents are not available. Their role as grandparents forms an important part of his social development and welfare. [ 32 ] One factor both parents have identified as significant in the child’s best interests is his cultural identity as an aboriginal person of the [omitted for publication] Nation.

On the one hand the mother proposes it can be maintained through attendance at the Friendship Centre in [omitted for publication], utilizing the father’s siblings in the [omitted for publication] area for language skills, and relying on the school system for aboriginal educational content. She also intends to travel with him to cultural events in [omitted for publication]. [ 33 ] Juxtaposed to this the father emphasizes the importance of T. remaining in the community.

The social context is unique as the child’s daily life over the past 6 years envelopes him in a vibrant aboriginal community that takes deep pride in its history and its future. Through cultural events like potlatches, dances and drumming the bond of community has been formative of T.’s identity as an aboriginal person of [omitted for publication] descent. These culturally important and community based events defines his heritage. This experience is further cemented through the [omitted for publication] language skills taught to him at school at which he excels.

His grandmother also plays an important cultural role as she engages T. through the [omitted for publication] language and traditional teachings. Furthermore, the multitude of aunties, uncles, friends and others in this small community contributes to his sense of stability, community and identity. [ 34 ] While the mother’s proposals to preserve T.’s identity as a [omitted for publication] person are admirable, they do not embrace the heritage like that as explained by the father.

They are not the same as living in and being immersed in a cultural identity as an aboriginal person of the [omitted for publication] Nation. Collectively considered, given the child’s young age he requires stability and consistency in his formative years which is found in his current living circumstances. [ 35 ] Upon the totality of the evidence I find it would not be in the best interests of T. to relocate with his mother. Her application for relocation is dismissed. [ 36 ] Other orders I make pursuant to the FLA will be an order for joint guardianship by s. 39(1).

Furthermore, I make an order of shared parental responsibilities pursuant to s. 41. [ 37 ] Parenting time shall be such times as the parents may mutually agree. [ 38 ] In coming to this decision I have throughout reminded myself that I shall not consider whether the mother who is planning the move would do so without T. [ 39 ] This is a final order.

______________________________________ Judge B.G. Hoy Provincial Court Judge