K.K. v. D.H., 2021 BCPC 83

Citation: K.K. v. D.H. 2021 BCPC 83 Date: 20210324 File No: 23204 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: K. K. APPLICANT AND: D. H. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. BARRETT

Counsel for the Applicant: R. Olorunojowon Counsel for the Respondent: B. Cope Place of Hearing: Victoria , B.C. Date of Hearing: November 20, 2020 and January 15, 2021 Date of Judgment: March 24, 2021 A Corrigendum was released by the Court on April 9, 2021. The corrections have been made to the text and the Corrigendum is appended to this document. Introduction: [ 1 ] This decision relates to [omitted for publication] D.

H.’s application, under s. 64 of the Family Law Act, SBC 2011, c. 25 (“ FLA ”) for an order that neither party will change the residence of their child, [omitted for publication] (the “Child”), born [omitted for publication] from that of Nanaimo, BC. [ 2 ] The facts of this case are, in my view, somewhat unique for a couple of reasons. Firstly, D.H. applied for an order under s. 64 a couple of months after K.K. [omitted for publication] had left Nanaimo, with [omitted for publication] the Child, and moved to the Victoria area where they continue to reside.

Secondly, K.K. alleged family violence as the reason for her departure with the Child. Upon arriving in Victoria, she applied for, and obtained, a Protection Order without notice to D.H. This Order has now been terminated and replaced with a Conduct Order on consent of the parties. Lastly, D.H.’s application is before the court as a stand-alone application as neither party has applied for any order relating to parenting arrangements for the Child. Issues: [ 3 ] In light of these unique circumstances, I find I must resolve the following issues: 1. Do I have the authority under

section 64 to make the type of order sought by D.H.? 2. If so, what am I to consider when determining the application? 3. If so, what order, if any, should I make? Background: [ 4 ] K.K., D.H., and the Child resided as a family in Nanaimo, BC, until August 5, 2020. On that date, K.K. moved out of the family home and, together with the Child, went to a transition house in Victoria, BC.

On the same day, K.K. applied to the court in Victoria and obtained a Protection Order against D.H. that prohibited him from having any contact or communication with both K.K. and the Child. [ 5 ] On August 14, 2020, D.H. filed an application asking to terminate the Protection Order.

On October 6, 2020, at a Pre-Trial Conference, the parties consented to an interim, without prejudice order that D.H. would have parenting time with the Child, three out of every four weekends, commencing October 9, 2020 and to a variation of the Protection Order to enable D.H. to exercise his parenting time. [ 6 ] D.H. filed this application, requesting an order under s. 64 of the FLA , on November 13, 2020; both applications were scheduled for hearing before me on November 20, 2020. [ 7 ] At the conclusion of the evidence on November 20, 2020, the parties agreed to an order terminating the Protection Order and to the terms of a conduct order to be made in its stead.

The Conduct Order prohibits D.H. from attending K.K.’s residence without her consent and mutually governs the parties’ type and manner of communication. [ 8 ] Submissions on D.H.’s current application under s. 64 of the FLA occurred on January 15, 2021. Positions of the Parties: [ 9 ] D.H. denies he was the perpetrator of ‘family violence’ towards K.K. as alleged. He claims K.K.’s move to Victoria and request for a Protection Order were intended to remove him from the Child’s life.

Before the Child went to Victoria, he was an active and daily parent to her and he wants to regain that level of involvement in her care. D.H. submits K.K. circumvented her obligations under the FLA when she unilaterally relocated with the Child on August 5, 2020, in the face of his expressed opposition to that move. He submits the court must make the order he seeks; otherwise, K.K.’s inappropriate and wrongful conduct would not only go without consequence, it would be rewarded. [ 10 ] K.K. submits the order sought is not in the Child’s best interests and therefore, the application should be dismissed.

She claims she left the family home because she was fleeing from an abusive relationship that was harmful to both her and the Child and when they left the only place available for them was the transition home in Victoria. K.K. wants to remain in the Victoria area with the Child where they have significant support from her family, they have a permanent place to live, she has a full-time job and the Child is attending school in the area. K.K. does not want to move back to Nanaimo where she has no family support, no place to live, no job and the Child would need to change schools.

She submits her living in Nanaimo with the Child would not be in the Child’s best interests.

Summary of the Evidence: [ 11 ] K.K. and D.H. were common-law spouses for about six years beginning in July, 2014. The Child is their only child. K.K. testified the parties realized their relationship was over at the beginning of June, whereas D.H. believed it was around July 25 or 26, 2020. Regardless of the specific date their relationship ended, they agree they remained living in the family home together until K.K. left

with the Child in early August, 2020. [ 12 ] During their relationship, D.H. worked full-time. K.K. became pregnant very soon after their relationship began. She remained home with the Child during her maternity leave and then worked somewhat around the Child’s

schedule and available childcare. K.K. returned to school to become a Licensed Practical Nurse and, for the last two years of their relationship, attended [omitted for publication] in Nanaimo, BC, for that purpose. For about the last two months or so of their relationship, she was involved in the practicum portion of her program that required her to work long hours and various shifts.

During this stage of her program, D.H. became more heavily involved in the Child’s day-to-day care. [ 13 ] After they realized their relationship had ended, the parties attempted to discuss next steps but found this difficult as their ability to communicate, and communicate effectively, was extremely poor. [ 14 ] They attempted to talk about who would be moving out of the home and who would be remaining. During these discussions, I find that K.K. told D.H. she was considering moving to Victoria with the Child to be closer to her family.

She also told him that she had been looking in the Nanaimo area but had not yet found any place for them to go to. D.H. during these discussions made it clear to K.K. he did not agree to her moving to Victoria with the Child, it was too far away for her to go, and that she could only go as far as 30 kms away from Nanaimo (that is, to Parksville or Ladysmith) without his consent. This was information, he said, he received from a lawyer. [ 15 ] D.H. testified that when K.K. moved out in August, he was not even certain yet, in his mind, what he would be doing.

He was still considering moving to his mother’s house or going to the oilfields for work. However, based on the evidence, including the parties’ text communications filed, I am satisfied K.K. had decided that she would be moving out of the family home and anticipated moving in early August, 2020 and communicated this information to D.H. during their verbal or text communications. While D.H. may not have taken her seriously, or actually believed she would move out, I am satisfied K.K. had conveyed that to him.

Even with this information conveyed, however, there was yet a lot of uncertainty about where K.K. would be moving to and the exact date when she would be leaving. [ 16 ] The parties then began to talk about what furniture and other items K.K. would be taking with her when she moved out and what she would be leaving behind for D.H. [ 17 ] The parties agree that K.K. was not doing well in her practicum and that she needed to redo some, if not all of it, in order to successfully graduate from her program. They disagree on why K.K. was struggling.

K.K. testified she was not doing well because of the abuse she was experiencing at home and the lack of support she was receiving from D.H. D.H. attributes it to K.K. taking on a placement that demanded more than she could handle combined with her recreational cocaine habit. [ 18 ] I am satisfied D.H. had some awareness that K.K.’s school was looking for another practicum placement for her, and one place they were looking was in the Victoria area. [ 19 ] As mentioned, K.K. never provided D.H. with any definitive date she would be leaving the family home or where she would be going.

I am satisfied she did not do so because she did not have those concrete plans in place before she actually moved out of the family home. [ 20 ] Although K.K. testified she had been looking at places for her and the Child to live in Nanaimo, she did not provide details of any attempts during the hearing.

On the evidence, I am satisfied that K.K.’s true desire was to relocate to Victoria with the Child to be closer to her family, and that was her true intention in the long run. [ 21 ] As mentioned, K.K. has alleged that she was the victim of ‘family violence’ at the hands of D.H. throughout their relationship and that, as their relationship deteriorated, his ‘violence’ towards her escalated. She has not alleged any physical violence has occurred, but rather, that D.H. was verbally and emotionally abusive towards her. K.K. described times when D.H. would get so angry he would throw things or damage things.

She feared him because of his anger, his increased drinking, and came to feel ‘abused’ because of the way her treated her and spoke to her. [ 22 ] D.H. agrees that he and K.K. would have serious and mean verbal arguments. He acknowledged K.K. would, at times, trigger him and he would lose his temper with her. He often, however, tried to avoid arguments or losing his temper by walking away from K.K. [ 23 ] D.H. was quite open about the fact that he, at times, would exhibit bad behaviour towards K.K.

While he did not justify his behaviour and knew it was inappropriate, he strongly denied that he was ‘abusive’ towards K.K. or that she was a ‘victim’ in these exchanges. He testified K.K. would behave the same way towards him and they would both “behave badly towards each other”.

From his point of view, there was no ‘violence’ and no ‘victim’ because they both participated in the same bad behaviour. [ 24 ] K.K. acknowledged that she would get angry with D.H., call him names and be mean towards him but claimed she did not do so as much as D.H.. [ 25 ] On the evidence, it is clear there were significant verbal conflicts between the parties at times during their relationship and those conflicts increased in frequency and intensity during the several months prior to their physical separation in August 2020.

I accept that K.K.’s text messages accurately depict how D.H., at times, communicated with her. I am satisfied the language used qualifies as violent, abusive, demeaning, disrespectful and hurtful. I am also satisfied that K.K.’s subjective view of D.H.’s behaviour towards her, regardless of the fact that she, too behaved badly towards him at times, was that he was ‘violent’ and ‘abusive’ towards her. [ 26 ] I am satisfied the parties’ relationship became so toxic that continued cohabitation between them was becoming unbearable, intolerable and emotionally unsafe for both of them.

K.K. testified that she felt so unsafe she wanted her brother to stay with her at the family home on August 3, 2020. D.H. was opposed to her brother staying at the home. [ 27 ] There is also evidence that the Child was present and therefore, exposed to the parties’ conflict. For that reason, the home environment was also becoming unhealthy and unsafe for the Child. The Child was hearing her parents fighting, hearing the name

calling and witnessing them being bad to one another. The Child’s exposure to this conflict would no doubt have affected her. The Child’s exposure to her parents’ arguments occurred well before the few months preceding their separation. That was borne out by the incident both parties’ testified about; that is, when the back window of K.K.’s car was smashed when D.H. threw rocks at it.

The Child was sitting in the back seat of the car when this occurred and no doubt would have been alarmed and frightened by what was happening. [ 28 ] K.K. testified that D.H. was beginning to bring the Child into their arguments/fights and that is what made her realize she had to leave with the Child. D.H. strongly denies telling the Child what K.K. reports in her affidavit.

Regardless, as I have said, it is clear that the Child was exposed to, and, at times, in the middle of, fighting between her parents and that exposure would have been detrimental to her. [ 29 ] The parties do not agree on what specifically caused K.K. to decide to move out of the family home on August 5, 2020. D.H. believes K.K.’s decision was triggered by the argument they had on August 3, 2020 about her brother staying at the family home. K.K. denies this was a ‘triggering event’, and states she left because she was fleeing an abusive relationship.

I note, however, after this argument, K.K. left the family home with the Child and stayed with a friend briefly. She then returned on August 5, 2020, moved out of the home and went to Victoria. [ 30 ] There are some facts that led me to believe K.K.’s decision to leave on August 5, 2020 was planned in advance of that date.

She had time to arrange for a U-Haul van so she could move items from the home, she had time to arrange for family to come to Nanaimo and help her move out, and she had time to arrange for police to be ‘on stand-by’ in the event D.H. came home from work unexpectedly. [ 31 ] However, there are also some facts that led me to believe that K.K.’s decision to leave on August 5, 2020 was made quickly and that she was actually leaving earlier than she had planned to.

K.K. moved without having a permanent place to go to (she had to go to a transition house) and her school had not yet secured another practicum placement for her; specifically, a placement in Victoria had not yet been found for her. [ 32 ] After moving to Victoria, K.K. and the Child remained in the transition home in Victoria for 30 days, and then they moved into a home K.K. secured for them in Langford, BC.

K.K.’s school was able to arrange a practicum placement for her in the Victoria area and K.K. was able to successfully complete her practicum, graduate from her program, and achieve her qualifications as a LPN. K.K. obtained a full-time job as an LPN at the place where she completed her practicum. She works a regular

schedule that does not involve any shift work and her

schedule works well with the Child’s schedule. K.K.’s family is supportive and able to help them out with childcare when needed. K.K. registered the Child in a local school in Langford where she is in Grade 1. Although moving from the Nanaimo area was a bit of an adjustment for the Child, K.K. states she is doing well in school and making new friends. [ 33 ] D.H. testified that he came home from work the day K.K. and the Child left to find, more or less, an empty and messy house. He had no idea where they had gone.

K.K. took much more from the house than she said she would and, therefore, he had to restock and refurnish the home to make it suitable for the Child to live in. [ 34 ] Because of the Protection Order, D.H. did not have any contact with the Child but for two or three times, via video, that K.K. had initiated. His regular in-person parenting time with the Child commenced October 9, 2020 pursuant to Judge Sacca’s interim Order made October 6, 2020.

Although the Child showed signs of missing her mother the first time he picked her up, she adjusted quickly and his time with her has gone very well. [ 35 ] There does not appear to be any dispute that both parties are very good and capable parents to the Child and that each played a role in her daily routine and care. [ 36 ] D.H. testified that before K.K. left with the Child, they had placed the Child on waitlists for two schools in Nanaimo; one was a French immersion school and the other was [omitted for publication] Elementary where some of the Child’s day care friends attend.

Before and after school care had not yet been secured although they expected it would be available for the Child once school began. [ 37 ] D.H. testified that he had taken the Child to an early orientation at [omitted for publication] Elementary to become familiar with the school and meet the person who would be her teacher that fall. He said the Child was very excited about going to [omitted for publication] and she continues to ask him when she will be attending school there.

D.H. stated in his affidavit that the Child’s registration at [omitted for publication] Elementary was confirmed on September 4, 2020. [ 38 ] D.H. testified that K.K. never consulted with him about the Child’s school or told him directly that she had registered the Child in school. He learned that the Child was attending school from a friend who saw a Facebook post of a picture of the Child on her first day at school. It also appears he received confirmation of the Child’s registration and attendance at school through his counsel. Law and Discussion of the Issues: 1.

Issue #1: Do I have the authority to make an order under s. 64 in these circumstances? [ 39 ] Neither counsel identified any concern with my authority to make the order sought by D.H. under s. 64 of the FLA . Notwithstanding, given the wording of the section, it was an issue that I felt I needed to address. [ 40 ]

Section 64 of the FLA states: 64

(1) On application, a court may make an order that a person not remove a child from a specified geographical area.

(2) On application, if satisfied that a person proposes to remove a child from, and is unlikely to return the Child to, British Columbia, the court may order the person who proposes to remove the Child to do one or more of the following: (

a) give security in any form the court directs;

(

b) surrender, to a person named by the court, passports and other travel records of the person who proposes to remove the Child or of the Child, or of both; (

c) transfer specific property to a trustee named by the court; (

d) if there is an agreement or order respecting child support, pay the Child support to a trustee named by the court.

(3) This

section does not apply in relation to the relocation of a child within the meaning of Division 6 [Relocation] of this Part.

(4) A person required by an order made under this

section to hold passports, travel records or other property delivered under the order must do so in accordance with the directions set out in the order. [ 41 ]

Section 64 is found under

Part 4 of the FLA that is entitled “Care of and Time with Children” and specifically, within Division 5 of that Part, entitled “Compliance Respecting Parenting Time or Contact with a Child”. [ 42 ] Section 64(2) and 64(4) do not apply or are not relevant in this case. [ 43 ] Section 64(3) specifically states that the

section does not apply to relocation applications under Division 6 of the FLA . Division 6, entitled “Relocation”, also falls within

Part 4 of the FLA and applies in situations where a child’s guardian intends to “relocate” himself/herself or the Child and there is either a written agreement or order respecting parenting arrangements or contact with the Child in place (s. 65).

There was clearly no agreement or order in place respecting parenting arrangements for the Child when K.K. and the Child moved out of the family home to the Victoria area. [ 44 ] It appears then s. 64(1), specifically, is the authority relied on by D.H. [ 45 ] In light of where s. 64 is found within the FLA , and considering its specific wording, it appears this provision was drafted for the purpose of enabling courts to make orders that preserved the location of a child in situations where that was threatened in some way or, if necessary, to ensure compliance with obligations relating to time with children. [ 46 ] Because the Child was no longer living in Nanaimo when D.H. filed his application, his application actually seeks an order that compels the Child’s return to Nanaimo, restores her residence, or ‘location’, to that of Nanaimo, and thereafter prevents either party from changing her residence, or ‘location’, from that of Nanaimo once restored. [ 47 ] There is no authority, other than s. 64 , that is available to D.H. under the FLA to seek this relief and I am not aware of any case authorities that have specifically addressed this issue in a similar context. [ 48 ] Therefore, I have sought assistance from reviewing what I understand to be the underlying principles and/or philosophies of the FLA generally and specifically in relation to the movement of a child by a parent or person from one location to another after the breakdown of a relationship. [ 49 ] As a general principle, parties to a family law dispute are expected to make genuine and real attempts to resolve their dispute by accessing ‘out of court’ dispute resolution processes and litigation through the court is to be used as a process of last resort ( s. 4 , FLA ). [ 50 ] An expressed and underlying premise of the FLA is that, when resolving disputes relating to parenting arrangements for a child, it is incumbent upon parties to make agreements or seek orders based on what arrangements would be in their child’s best interests.

In other words, their child’s best interests ‘trump’ or override a party’s individual or personal needs, interests, or ‘wants’ when it comes to determining parenting arrangements. The court, as well, must only make decisions respecting parenting arrangements based on what order is in a child’s best interests ( s. 37 , FLA ). [ 51 ] Parents are often “guardians” of their child and as such, they are ‘responsible’ for their child and ensuring the decisions they make relating to their child are in their child’s best interests.

It is clear to me on these facts both K.K. and D.H. are “guardians” of the Child (s. 39, FLA ). This fact is important to my analysis set out below, even though I am not being asked by either party to make that determination at this hearing. [ 52 ] There is an initial presumption that each child’s guardian may exercise all “parental responsibilities” for their child.

Section 40(2) of the FLA states: Unless an agreement or order allocates parental responsibilities differently, each child's guardian may exercise all parental responsibilities with respect to the Child in consultation with the Child's other guardians, unless consultation would be unreasonable or inappropriate in the circumstances. [ 53 ]

Section 41 of the FLA lists the various “parental responsibilities” of guardians. One of those responsibilities, set out in s. 41 (b), is that of making decisions respecting where a child will reside. [ 54 ] The starting place, then, is that unless there is an agreement or court order to the contrary, guardians of a child share the responsibility of making decisions respecting where their child resides and, in arriving at that decision, they are expected to consult with one another and then come to a decision as to what is best for their child.

Presumably, if they cannot reach agreement on that issue, a court application should be initiated to resolve their dispute. [ 55 ] Section 40(2), however, also contemplates situations where consultation among guardians may not be reasonable or possible.

I accept that in some instances where there is family violence or where guardians simply cannot communicate (for a variety of reasons) consultation between guardians may be impossible or inappropriate, and therefore unreasonable to expect. [ 56 ] Another underlying principle or philosophy of the FLA is that generally, and but for exceptional circumstances, guardians must avoid, and be discouraged from, unilateral decision-making relating to matters affecting their children. The obvious concern is that

making decisions that are ‘one-sided’, and therefore made without a fulsome consideration of the impact of a decision on a child, can result in an outcome that is highly disruptive for a child and ultimately found not to be in a child’s best interests. [ 57 ] Sections 46 and 48 of the FLA speak directly to expectations of guardians that want to change a child’s residence in situations where guardians do not have any written agreement or court order that sets out parenting arrangements for a child. [ 58 ]

Section 46 of the FLA states: 46

(1) This

section applies if all of the following circumstances exist: (

a) no written agreement or order respecting parenting arrangements applies in respect of a child; (

b) an application is made for an order described in section 45 (1) (

a) or (b) [orders respecting parenting arrangements] ; (

c) the Child's guardian plans to change the location of that child's residence and the change can reasonably be expected to have a significant impact on that child's relationship with another guardian.

(2) To determine the parenting arrangements that would be in the best interests of the Child in the circumstances set out in subsection (1) of this section, the court (

a) must consider, in addition to the factors set out in section 37(2) [best interests of child] , the reasons for the change in the location of the Child's residence, and (

b) must not consider whether the guardian who is planning to move would do so without the Child. [ 59 ] The clear expectation is that a guardian’s plan to move with a child is assessed in advance of any move, and as part of an overall determination of what parenting arrangements are best for a child. [ 60 ]

Section 48 of the FLA follows the same theme, but mandates that a guardian must not make unilateral changes to a child’s parenting regime where that regime has been in place for some time. 48

(1) If (

a) no agreement or order respecting parenting arrangements applies in respect of a child, and (

b) the Child's guardians have had in place informal parenting arrangements for a period of time sufficient for those parenting arrangements to have been established as a normal part of that child's routine, a child's guardian must not change the informal parenting arrangements without consulting the other guardians who are parties to those arrangements, unless consultation would be unreasonable or inappropriate in the circumstances.

(2) Nothing in subsection (1) prevents a child's guardian from seeking (

a) an agreement respecting parenting arrangements, or (

b) an order under

section 45 [orders respecting parenting arrangements] . [ 61 ] The requirement for guardians to refrain from unilaterally moving or changing informal parenting arrangements for a child (except in exceptional circumstances), is to ensure that a child is not disrupted unless and until parenting arrangements that incorporate an intended move or desired changes have been determined to be in a child’s best interests. [ 62 ] Compliance with these provisions of the legislation, and fulfilment of one’s obligations as guardian of a child, ensure the integrity of a decision-making process that is child-focused and resolves disputes relating to a child based on what is in that child’s best interests.

Conversely, non-compliance with these provisions and/or failure to meet one’s obligations as guardian of a child may threaten the integrity of that decision-making process. [ 63 ] Having considered all of the above, I am satisfied that s. 64 provides the court with the authority to make orders that both ‘prevent’ the removal of a child from a specific location and ‘restore’ a child to a specific location if to do so is in a child’s best interests.

This may include situations where such orders are necessary to ensure that the decision-making process relating to parenting arrangements for a child is fair and consistent with that intended by, and set out in, the provisions of the FLA . [ 64 ] For these reasons, I find that I do have the authority, under s. 64 , to make the type of order sought by D.H. 2.

Issue #2: If so, what factors do I consider when determining the application? [ 65 ] Generally, I have considered the underlying principles and philosophies of the FLA as well as the specific sections of the legislation that I have mentioned and reviewed above when determining this application. [ 66 ] I have considered that, notwithstanding the presumption that guardians are to make decisions about their child after consulting one another, s. 40(2) specifically recognizes there may be situations where consultation between guardians is either unreasonable or impossible. [ 67 ] I have considered whether, in this case, the circumstances were such that it was either ‘unreasonable’ or ‘impossible’ for the parties to consult with one another or for K.K. to consult with D.H., about parenting arrangements for the Child.

I have set out my findings in that regard below.

[ 68 ] I have also considered, if those circumstances did exist, how that affects the parties’ mutual obligation, as the Child’s guardians, to attempt to resolve parenting arrangements for her. [ 69 ] Most importantly, I must consider s. 37 of the FLA , the first

section found within Division 1 of

Part 4 (entitled “Best Interests of Child”).

Section 37 , in its entirety, states:

(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.

(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor. [ 70 ] I realize the parties have not asked me to make any order “respecting guardianship, parenting arrangements or contact with” the Child but I still must consider s. 37 as any order I make will have a direct and real impact on her.

I must ensure that any order I make is in her best interests and protects, to the greatest extent possible, her physical, psychological and emotional safety, security and well- being. 3. Issue #3: What order should I make, if any? [ 71 ] K.K. submits that, considering the enumerated circumstances set out in s. 37(2), the order sought by D.H. is not in the Child’s best interests.

It would be tremendously disruptive to K.K. to leave what she has now in Victoria and move back to Nanaimo and, at this point, it would also uproot the Child who has now settled into her home, her school, made new friends, and has family close to her. [ 72 ] D.H. submits that if the Child was to return to Nanaimo she would be returning to the home where she has lived most of her life, she would go to a school she is familiar with and wanted to go to, she has friends in the area, and she is familiar with the neighbourhood.

D.H. is ready and able to care for the Child and does not foresee any difficulty in arranging before and after school care for the Child if necessary. [ 73 ] On the evidence, I find K.K.’s move with the Child to Victoria occurred without proper consultation with D.H., with little to no notice to him, and very much in the face of his clear opposition to that particular move.

I find that, on August 5, 2020, K.K. did remove the Child from the Nanaimo area unilaterally. [ 74 ] However, I also find that the level of toxicity in the parties’ relationship, that at times escalated to ‘family violence’, the fear K.K. had of D.H., at times, and the parties’ tremendous difficulty in effectively communicating with one another around the time of their separation, all posed barriers to their ability to actually consult with one another about matters affecting them or the Child, including parenting arrangements for her. [ 75 ] I also accept that when K.K. actually left on August 5, 2020, the only place available for her and the Child to go at the time was the transition house in Victoria.

I accept, as stated above, that a physical separation was inevitable, by this point, as continued cohabitation had become intolerable. Therefore, K.K.’s move out of the family home at that time was reasonable in those circumstances. [ 76 ] It is not K.K.’s move to the transition house in Victoria on August 5, 2020 specifically, that causes me concern. Rather, it is what K.K. did, or rather, failed to do thereafter that is of concern. [ 77 ] After settling into the transition house in Victoria and obtaining the safety of the Protection Order, K.K. was then in a position to

think clearly about what she should do and what steps she should take to resolve parenting arrangements for the Child.

In my view, it was her obligation, once safe, to then take reasonable steps to initiate some process, such as a court application, that would determine parenting arrangements for the Child through the lens of what arrangements would be in the Child’s best interests. [ 78 ] Instead, she chose to sit back, allow her and the Child to settle into their new community in Langford BC, and wait for D.H. to initiate some process that would challenge her decision to move with the Child to the Victoria area. [ 79 ] I find K.K.’s failure to take those steps and initiate that process contravenes her responsibilities as the Child’s guardian, particularly when viewed in light of her ultimate desire and plan to move permanently to the Victoria area with the Child.

She chose not to initiate a process that would trigger a review of whether or not the Child’s move to Victoria and the parenting

schedule that would result from that move were, in fact, in the Child’s best interests. [ 80 ] D.H. initially responded to K.K.’s move with the Child by filing an Application to terminate the Protection Order.

He obviously needed that order changed or terminated so that he could have time with the Child and, fortunately, because of that Application, he gained regular parenting time with THE CHILD on an interim without prejudice basis. [ 81 ] I am troubled, however, by his choice as well, not to initiate any process that would trigger the resolution of parenting arrangements for the Child based on what is best for the Child. Instead, he chose to apply, under s. 64 alone, for an order compelling the Child’s return to Nanaimo indefinitely.

If the order D.H. seeks is granted, the parties’ dispute over the Child’s parenting arrangements remains unresolved and the Child is left ‘in limbo’ for an indefinite period of time. [ 82 ] I recognize both parties have retained counsel and have exchanged various proposals to resolve their dispute around parenting the Child, but that is, to the best of my knowledge, as far as it goes.

I can only assume both parties are waiting for the outcome of this application to determine what next steps each should take. [ 83 ] This approach by the parties is unfortunate as it delays the resolution of parenting arrangements for the Child and puts the Court in the difficult position of deciding where the Child should be “located” without any clear indication as to how or when the parties intend to resolve their dispute relating to her. [ 84 ] I want to make it clear that I have not factored into my decision-making on this application what parenting arrangements are best for the Child and therefore, I do not want this decision to be interpreted as in any way preferring one party’s parenting proposal over that of the other’s. [ 85 ] I have considered the practical impact on the Child of both dismissing D.H.’s application, and making the order he seeks. [ 86 ] If I dismiss D.H.’s application, the current situation will remain in place.

As noted, the current arrangements are in place without there having been a determination that a permanent move to Victoria, and the parenting arrangements in place are in the Child’s best interests. [ 87 ] If I grant D.H.’s order as requested, the Child would return to Nanaimo immediately where she would live with her father and go to school. The Child’s time with her mother is, at this point, unknown and would be dependent upon when K.K. can go to Nanaimo to see her and/or if K.K. decides to return to live in Nanaimo.

The Child’s return to Nanaimo would also take place without first determining if living in Nanaimo permanently is in her best interests. [ 88 ] If I make either order as requested by the parties, the Child’s ultimate living arrangements will remain ‘in limbo’ until the parties choose an effective process to resolve their dispute relating to the Child’s living arrangements. Any order that results in the Child being ‘in limbo’ for an undetermined amount of time is not, in my view, in the Child’s best interests and puts at risk her emotional, psychological safety and well-being.

Decision: [ 89 ] At this point, the Child has resided in the Victoria area since early August, 2020. She is attending school in Langford, has made new friends, and has regular contact with her maternal family.

Her move back to Nanaimo at this point will have an impact on her however that will be lessened by the fact she is returning to live in the home she grew up in, to a place she is familiar with and where she continues to have friends. [ 90 ] Considered the totality of the circumstances in this case, the underlying principles and philosophies enshrined in the provisions of the FLA as well as the expectations and responsibilities of guardians of children under the FLA noted above, I find that an order dismissing D.H.’s application outright is not appropriate and inconsistent with the Child’s best interests. [ 91 ] I find that it is appropriate for me to make an order under s. 64, but decline to make an order on the terms sought by D.H. [ 92 ] I find that, in these circumstances, an order that safely returns the Child to Nanaimo, for a period-of-time is necessary and appropriate to ensure the parties resolve their dispute about parenting arrangements for her fairly, and in a manner that is consistent with the clear intention of the statute and respects its underlying principles and philosophies. [ 93 ] Her immediate return, however, is not warranted or necessary for that purpose.

I find it is best for the Child to allow her to complete her school year in Victoria and then return to live in Nanaimo. As the parties have both proposed equal parenting time over the summer months, I expect that that will be the parenting

schedule for her during that time, and during any other holiday periods, until the parties resolve the Child’s parenting arrangements. I have heavily relied on this proposed scheduled over the Child’s holidays in arriving at my decision on this application. [ 94 ] To avoid the Child being ‘in limbo’ and encourage the parties to actively engage in resolving parenting arrangements for her, I decided that this order would be time limited and terminate at the end of June, 2022. The hope is that this will allow the parties sufficient

time to resolve their dispute about the Child’s arrangements. [ 95 ] Because K.K. currently lives in Langford, and I have no idea whether or not she will decide to move back to Nanaimo, I have allowed K.K. to continue to exercise her parenting time with the Child in the Victoria area while the order under s. 64 is in effect. [ 96 ] My intention in making the order was to minimize its impact on the Child, and thereby protecting, as much as possible, her psychological and emotional safety, security and well-being. ORDER: [ 97 ] In

summary, the order I make is as follows: 1. The interim order of Judge Sacca dated October 6, 2020 will remain in effect until June 30, 2021; 2. Pursuant to

section 64 of the FLA , commencing July 1, 2021 and continuing until June 30, 2022, neither party is to change the Child’s residence from that of Nanaimo, BC, except that if K.K. resides in the Victoria area during the term of this order, she may exercise her parenting time with the Child in the Victoria area notwithstanding the terms of this order; 3.

The terms of this order may be changed or terminated by written agreement of the parties filed with the court after the date of this order or by further order of the court. [ 98 ] While I have set out the ‘terms’ of my order above, I invite counsel to reword the terms, if necessary, and present to me a draft order they have approved for my review and signature. _____________________________ The Honourable Judge J.

Barrett Provincial Court of British Columbia CORRIGENDUM - Released April 9, 2021 In the Reasons for Judgment dated March 24, 2021, the following changes have been made: [1] Paragraph 47 should read: There is no authority, other than s. 64 , that is available to D.H. under the FLA to seek this relief and I am not aware of any case authorities that have specifically addressed this issue in a similar context. [2] Paragraph 74 should read: However, I also find that the level of toxicity in the parties’ relationship, that at times escalated to ‘family violence’, the fear K.K. had of D.H., at times, and the parties’ tremendous difficulty in effectively communicating with one another around the time of their separation, all posed barriers to their ability to actually consult with one another about matters affecting them or the Child, including parenting arrangements for her. _____________________________ The Honourable Judge J.

Barrett Provincial Court of British Columbia