V.B. v. K.D., 2021 BCPC 220

Citation: V.B. v. K.D. 2021 BCPC 220 Date: 20210903 File No: 23059 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: V.B. APPLICANT AND: K.D. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE McKIMM

Counsel for the Applicant: J.A.C. Stewart Counsel for the Respondent: R. Alberto Place of Hearing: Victoria , B.C. Date of Hearing: August 23, 2021 Date of Judgment: September 3, 2021 [ 1 ] This matter comes to court is an application to relocate the children from their current domicile in Victoria, British Columbia to [omitted for publication], British Columbia. Victoria is approximately a fourteen-hour car ride from [omitted for publication] inclusive of the requirement to travel by ferry. There has never been a final order determining who will enjoy the parental responsibilities for the children in question.

The children have lived for extended periods of time in both [omitted for publication], British Columbia, the home of their mother “the applicant” and in Victoria, British Columbia, the home of their father “the respondent”. Given the procedural history of the matter in my view the appropriate analysis is not under

Part 4 Division 6 of the Family Law Act which deals with relocation but rather under

Part 4 divisions 1-3 of the Family Law Act which addresses care of and time with children. Clearly in conducting that analysis the Court will be cognizant of the fact that each of the parties intends to reside with the children in their respective towns. [ 2 ] Each party has filed an extensive series of affidavits. Council agreed that the case could be decided based on that affidavit material. Upon careful review of all of the affidavit material filed I agree that there is a sufficient body of un-contradicted evidence before the court to determine the issues.

Facts [ 3 ] The applicant is 32 years of age and resides in [omitted for publication], British Columbia. She has not worked outside of the home since the birth of her first child. She is a fully qualified early childhood educator and has secured full-time employment commencing September 1, 2021. She is a member of the [omitted for publication] First Nation. All of her extended family, and most particularly her very supportive father, reside in [omitted for publication].

The evidence shows that the applicant’s extended family provide her with tremendous comfort and support. [ 4 ] The respondent is 37 years of age and resides in Victoria, British Columbia. He works in partnership with his brother as a floor installer. He earns approximately $65,000 a year. He too is of First Nations ancestry and is connected to the [omitted for publication] band in Victoria.

The respondent’s extended family all reside in the Victoria area and also provide him with a tremendous level of comfort and support. [ 5 ] There are three children of the marriage, M.L.B. born [omitted for publication], (seven years old) C.B. born [omitted for publication], (six years old) and M.A.B. born [omitted for publication] (four years old). [ 6 ] The parties met in 2012 and began a relationship shortly thereafter.

The applicant was employed initially as a supervisor in a preschool in Victoria and later moved on to operate her own day care business as she continued to do until becoming pregnant with their first child. The respondent worked throughout as an installer of flooring materials. Just prior to the birth of their first child in the summer of 2014 the young couple decided to move to the applicant’s hometown of [omitted for publication] to be closer to the applicant’s extended family and community.

All three of the children were born while the couple lived in [omitted for publication], British Columbia. [ 7 ] In 2016, prior to the birth of their youngest child, the parties returned to live in Victoria. Shortly after that move they separated. The applicant, together with the two eldest children moved back to [omitted for publication] and began to reside in the applicant’s sister’s home. Later that summer the respondent also moved back to [omitted for publication] to enjoy the birth of their third child and the couple chose to try and reconcile.

Regrettably that reconciliation was unsuccessful and in October 2017 the respondent returned to reside in Victoria leaving the applicant as a single parent with three very young children. I accept her evidence that after the respondent returned to Victoria she was under a significant amount of financial and personal pressure. [ 8 ] Compounding her difficulties, in August 2019 the applicant was diagnosed with a pre-cancerous lesion. Her evidence shows that by October 2019, having lived as a single parent for two years the stress became overwhelming.

She phoned the respondent and advised him that she had physically abused the children and in particular had punched the eldest child M.L.B. The Ministry of Children and Family Development was contacted and a safety plan was created that saw the children residing with the respondent on a full-time basis. The children have all resided with the respondent in Victoria since that time. [ 9 ] In January 2020 the applicant moved to Victoria to be closer to her children and to try to create a co-parenting arrangement that was sustainable in the long term.

In February 2020 the parties attended court in [omitted for publication] and obtained an order that the respondent is the primary residence for the children and the applicant would have three weekends per month together with midweek visits as her parenting time. This order is clearly an interim order. [ 10 ] The evidence shows that the applicant did not thrive in Victoria. In particular she felt unsupported by the respondent’s family and had difficulty managing her financial affairs, a fact that she blames on a lack of financial support from the respondent.

It seems clear that the respondent’s failure to provide financial assistance to the applicant contributed to her difficulties, I do not find that conduct important in assessing this matter. By July 2020 she had been evicted from one residence and her ability to stay in a shelter was also running out.

Unfortunately, at that time she made the foolish decision to unilaterally leave Victoria with the children. [ 11 ] The applicant’s sudden and unannounced removal of the children from their home in Victoria led to the respondent making an emergency application and obtaining an order for a police enforcement clause compelling the applicant to return the children to the respondent. The applicant advised the Court that her vehicle, the same vehicle she had just travelled with the children from Victoria to [omitted for publication] was suddenly incapable of returning the children.

As a result the respondent was required to travel to [omitted for publication] in order to obtain the return of the children.

[ 12 ] In December the parties returned to court in an effort to resolve the outstanding parenting issues. At that time the Court issued an order allowing the applicant parenting time once per month in [omitted for publication] with the children and requiring that the respondent contribute $800 per visit to defray the cost of transportation. Regrettably, on the second such visit the applicant again refused to return the children to the respondent unless the respondent sent more funds than required by the order.

This again necessitated a further emergency court application in order to secure the return of the children to their home in Victoria. [ 13 ] The matter is now back before the court with both parties seeking a final order regarding their division of parental responsibilities and parenting time. As will be discussed below, while the application comes before the court as an application to relocate, in my view that mischaracterizes the nature of the application which, is, in essence, an application for a final order establishing parenting time and division of parental responsibilities.

Position of the parties [ 14 ] The applicant wishes to have all three children in her full time care in [omitted for publication], British Columbia. She argues that [omitted for publication] is their birthplace and is properly seen as their true home. The applicant describes a warm and supportive and loving environment. She submits that it is in the best interests of the children to reside with her in [omitted for publication] where the cost of living is such that the children can be afforded a significantly better lifestyle.

She submits that the respondent could easily move to [omitted for publication] and they could continue to co-parent as they did prior to separation. [ 15 ] The respondent says that he should have the primary residence for all three children in Victoria. He submits the children have a rich and full life here and are supported by his extended family. He submits that the children have many activities and relationships in Victoria now and to move them now would be to destabilize them.

He takes the position that he has an excellent job in Victoria and has, together with his brother, built up a significant business interest which would not be easily duplicated after he moved to [omitted for publication], British Columbia. Analysis Is this a relocation application? [ 16 ] The matter before the court has its genesis as an application by the applicant to “relocate” with the children from Victoria, British Columbia to [omitted for publication], British Columbia. That application would be assessed and analysed under the provisions of

Part 6 of the Family Law Act . Given the procedural history of the file in my view litigation has not progressed to the stage where either party’s residence has been determined to be the residence of the children. [ 17 ]

Section 65 of the Family Law Act provides: 65 (1) in this division, “relocation” means a change in the location of the residence of a child or child’s guardian that can reasonably be expected to have a significant impact on the child’s relationship with (

a) a guardian, or (

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

(2) This Division applies if (

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

b) a written agreement or an order respecting parenting arrangements or contact with the child applies to the child. [ 18 ] Generally speaking, the order referred to in section 65(2)(

b) includes any interim consent order which establishes parenting arrangements. A.J.D. v. E.A.A., 2013 BCSC 2160 . In the case at bar, however, the Court made specific comment that they were not determining which residence would be the primary residence of the children. [ 19 ] After some initial agreements were struck regarding where the children would reside, on May 14, 2018 the Court made an order requiring the respondent to return the children to the care of the applicant and left the parties to decide between themselves how best to effectuate that change.

In August 2018 the Court made an order which effectively provided that the applicant would reside with the children on an interim basis in [omitted for publication] and providing that the respondent have parenting time in Victoria.

That order also addressed financial issues around the care of the children as well as details regarding transporting the children back and forth between Victoria and [omitted for publication]. [ 20 ] As indicated above, in October of the following year the applicant was struggling with the care of the three young children and, with the assistance of the Ministry of Children and Family Development, the children were placed in the care of the respondent.

The next significant court appearance following the delivery of the children to the respondent lead to a hearing after which not only the residence of the children but also the location of the court file was decided. At this time the children had been delivered, with the blessing of the Ministry of Children and Family Development, to the respondent. The court was called upon to make an interim order regarding where the children would reside and who would exercise parental responsibilities until a final order could be created.

Both parties take the position that when they consented to the children being placed in the respondent’s care in Victoria that order was done “without prejudice”. [ 21 ] The issue of the permanent residence of the children was clearly at the forefront in the Judge’s mind when she wrote:

(20) I have far too little information of the parent’s and the children’s respective circumstances to craft anything but a rough and ready interim without prejudice order that can be set aside with reasonable notice and in reasonable time to the other parent.

(21) The children have recently been relocated from [omitted for publication] to Victoria, where they have been living full time with their father. I do not believe it is in the children’s best interest to immediately upset this newly established routine. In my view the children’s need for security, given their young age, is paramount.

(22) The children’s primary residence will therefore be with [the respondent], on an interim without prejudice basis. I underscore this is without prejudice, because I am making no determination which is the better parenting arrangement for the children in the long term.

Clearly the children have lived for long periods with [the applicant] in [omitted for publication]; I simply do not have the evidentiary basis to make any principal ( sic) decision as to parenting arrangements beyond the immediate future. [ 22 ] It seems clear from this decision that neither party wished the move to Victoria to be considered a final decision and that both parties wished to be able to make a fulsome case that their living situation in each of their respective cities was in the best interests of the children. [ 23 ] It is procedurally fair to both parties to allow them to make necessary arrangements, often in emergent situations, such as these, without having to be overly concerned that in doing so they may well be giving up procedural advantages under the Family Law Act .

On the facts before me today it can be as forcefully argued that the respondent’s desire to maintain the children on a final basis in Victoria amounts to a relocation of the children from their principal residence in [omitted for publication]. Clearly both parties turned their mind specifically to this question and left it open for the Court to simply assess this matter under

Part 4, Divisions 1-3 of the Family Law Act . Is it in the best interests of the children to reside with the applicant in [omitted for publication] or the respondent in Victoria? [ 24 ] Both parties agree that each is a loving, committed and devoted parent to the children. In a perfect world the parties would likely co-parent effectively were they able to reside together in the same community. I am satisfied that the respondent’s desire to stay in Victoria is founded on a sensible and practical reality that his business interests and family support network are in Victoria.

I’m equally satisfied that the applicant’s desire to remain with the children in [omitted for publication] is founded on a practical reality that her current employment and family support are in [omitted for publication]. Both municipalities offer approximately equal opportunities to raise children in a rich and stimulating environment. Seen through the lens of raising children neither location is better than the other. [ 25 ] The applicant suggests that the respondent should move to [omitted for publication] and carry on his profession there.

The respondent says that is not practical nor feasible given the efforts he has made since the date of separation to build up his business and his financial security. The respondent implies in his material that the applicant could equally move to Victoria and commence her employment as an early childhood educator. She made a trial of that living arrangement after separation and found it to be unworkable. Her material discloses that she felt unsupported and abandoned in Victoria and was forced to return to [omitted for publication].

I accept her evidence that living in Victoria is not an option for her. [ 26 ] As a result, the choice is clear that the court must decide whether the children live with their mother in [omitted for publication] and their father in Victoria having a limited amount of parenting time or live with their father in Victoria and their mother have limited parenting time. The respondent has established a comfortable and supported home for the children. The children are thriving and are enjoying excellent health and emotional well-being.

The children have now resided in Victoria for a lengthy period of time relative to their ages and there is no question that moving the children now to [omitted for publication] would undermine their need for stability given their young age. [ 27 ] I must consider the ability of each parent to exercise their parental responsibilities. In this regard I consider both the ability to exercise their parental responsibilities on their own. It is also important to consider that these parents will necessarily be a significant distance from each other depending on which parent has the primary residence of the children.

In this regard I must consider the ability of each parent to ensure that the other parent has as rich and fulsome a relationship with his or her children as is reasonably possible. [ 28 ] Both parties agree, to their credit, that each is a loving and devoted parent. Each takes some issue with the ability of the other to properly provide for the needs of the children and thereby to meet their parental responsibilities.

The applicant points to little in the way of evidence that gives the court any concern with respect to the ability of the respondent to fully meet the needs of the children and to exercise his parental responsibilities fully and completely. At most there is a suggestion in the evidence of what might be described as a perceived lack of interest on the respondent’s part to actually care for the children. In this regard the applicant points to what she says is the respondent’s walking away from the children and returning to Victoria after separation.

This is not a fair assessment of the facts. [ 29 ] In my view the respondent moved to Victoria for appropriate reasons given his need to develop his business potential as a flooring installer. Furthermore, the moment it became apparent that the applicant was struggling he immediately took steps to assume the children’s care. It is quite clear that he has done so in a very positive and supportive way.

His material and the material filed by his witnesses show a loving and devoted father who is taking all reasonable steps to have the children lead a rich and full life. [ 30 ] On the other hand, the respondent says the applicant has shown through her conduct that she is indeed less capable of exercising her parental responsibilities. He points quite correctly to the incident in October 2019 which by the applicant’s own evidence led to her having to give up the children to the respondent’s care.

I do not accept her version that she deliberately fabricated false evidence to the Ministry of Children and Family Development so that she could receive some assistance. I am persuaded by the evidence that indeed she was having a very difficult time as a single mother raising three small children. Indeed the evidence shows that she was simply unable to do so at that time. [ 31 ] The respondent also points to the three deliberate efforts by the applicant to deprive him of the children which were, at that time, either in his care or supposed to be in his care during parenting time.

I also find those deliberate efforts by the applicant to remove the children from their father’s care indicates that she is less capable of exercising her parental responsibilities and ensuring that the children have, as much as is possible, a rich and complete relationship with their father. In my view that augurs heavily against her application to be the primary residence for these children.

Her deliberate attempts to remove the children from the care of their father also speaks against an arrangement that would have the children in her full time care because the Court is not satisfied that she would be able to work cooperatively with the respondent to ensure the proper care of the children.

[ 32 ] Considering all of the above the respondent has established on the balance of probabilities that it is in the best interests of the children to reside full time with him. There will be a final order as follows: 1. The Court is satisfied that V.B. and K.D. are the guardians of the children under section 39 (1) of the Family Law Act (FLA). 2. Under s. 40(2) of the FLA K.D. will have the following parental responsibilities for the children: (

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

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

c) Making decisions respecting with whom the children 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 children's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the children are aboriginal children, the children's aboriginal identity; (

f) Subject to

section 17 of the Infants Act , giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the children; (

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

h) Giving, refusing or withdrawing consent for the children, 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 children; (

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 children's legal and financial interests; (

l) Exercising any other responsibilities reasonably necessary to nurture the children's development. 3. Under s. 49 of FLA, if the guardians cannot agree on a parental responsibility, K.D. must make the decision and V.B. may apply for a review of that decision under s. 49 of the FLA . 4. Each guardian will consult the other guardian about any important decisions that must be made about the children and will try to reach agreement concerning these important issues. 5. K.D. will have the primary parenting time with the children. 6.

V.B. will have liberal and generous parenting time at the dates and times agreed between the guardians provided however that she shall have parenting time consisting of one half of the Christmas school holidays, one half of the Easter or Spring break holiday and one half of the summer holiday and such other times as the parties may agree. 7. The guardians will share equally the cost of transportation to the other guardian’s residence for the purpose of exercising their parenting time.

Either party is at liberty to apply to the court for directions with respect to the place of the exchange of the children at the commencement and conclusion of each parenting time in the event the parties are unable to agree between them. 8. The issue of child support and extraordinary expenses payable by V.B. to K.D. is adjourned for further submissions following the filing by V.B. of a current statement of her anticipated income following her commencement of employment in September 2021. 9.

V.B. will have reasonable telephone and/or electronic communication with the children. _____________________________ The Honourable Judge McKimm Provincial Court of British Columbia