Lundberg v. Lundberg, 2015 BCSC 1092

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Lundberg v. Lundberg, 2015 BCSC 1092 Date: 20150625 Docket: 16484 Registry: Smithers Between: Shari Jaclyn Lundberg Claimant And Thomas Eric Lundberg Respondent Before: Master Muir Reasons for Judgment Counsel for the claimant: T.E. Hudson Counsel for the respondent: G.E. Greene Place and Date of Hearing: Smithers, B.C. May 13, 2015 Place and Date of Judgment: Smithers, B.C. June 25, 2015 I. introduction [ 1 ] Before me were cross applications. The respondent, Mr. Lundberg, applied to prohibit the claimant, Ms.

Lundberg, from relocating the child of the marriage as proposed in her notice of relocation delivered January 22, 2015. The claimant sought an order that she be entitled to relocate with the child to Vernon, B.C. [ 2 ] There was a preliminary matter, which was to settle the terms of the order of Mr. Justice Punnett made in this matter on March 14, 2014.

The terms of that order were agreed to by both counsel and after reviewing Punnett J’s reasons, I settled the order in the terms proposed by the parties. [ 3 ] The second matter, which was raised in both notices of application but which was not argued before me, was whether I as a master had jurisdiction to hear these applications given they involved varying the order of Punnett J. [ 4 ] The order of Punnett J. was agreed to be an interim order. The order involved parenting arrangements.

Neither party was certain whether the order was made pursuant to the Family Law Act , S.B.C. 2011, c. 25 or the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.). Pursuant to the BC Supreme Court Practice Directions - Family, PD-42, Master Jurisdiction, Part B, paragraph 6, however, a master has jurisdiction to make such interim orders in family law cases, whether made under the Family Law Act or the Divorce Act .

Pursuant to paragraph 7 of Part B of PD-42 of the Practice Direction, a master has jurisdiction to vary such orders, regardless of whether the original order was made by a judge or a master. [ 5 ] A third matter arose due to the time estimates of the parties for the hearing of these two applications. The time estimate in the respondent’s application was 2 - 3 hours. The claimant estimated 2 hours in her response.

The cross-application of the claimant had a time estimate of 2.5 hours and, in his response, the respondent estimated 1 - 2 days for hearing both applications. [ 6 ] On the day, the parties estimated 2 - 3 hours for the applications. The matter came before me during a regular and busy day in Chambers. I do not know why counsel did not ask that these applications be set for a fixed time by the Registrar as is required by Rule 10-6(5) of the Supreme Court Family Rules, B.C. Reg. 169/2009.

That rule is clearly intended to divert such applications from regular chambers to a designated time so as to avoid taking up all of the available regular chambers time on one application and to ensure that the parties have the time they feel is required for their submissions. [ 7 ] Both parties provided the court with their written submissions. I heard Mr. Greene, counsel for the respondent and then

Mr. Hudson, counsel for the claimant. I then proposed that Mr. Greene take a short time for reply. At that point, submissions had taken approximately 1.5 hours. Mr. Greene objected to being limited in his reply, saying that there were 2 applications and the time estimate was 2 - 3 hours. He said his responses would be extensive. I advised Mr. Greene that the court did not have time that day to allow 3 hours of submissions and offered to adjourn the matter. Mr.

Greene reluctantly accepted being limited to a short reply, and I assured the parties and counsel that I would fully review the materials before rendering my reasons, which I have done. [ 8 ] Although I am of the view that counsel fully canvassed the issues, to avoid this problem in the future, such long applications should be scheduled in accordance with the Rules . II. Background Facts [ 9 ] The parties met in 2007 and were married November 10, 2009. They separated on April 15, 2012. [ 10 ] The parties had one child, Raeleen, born August 6, 2010. In addition, Ms.

Lundberg had a son from a previous marriage, Trenton, born November 10, 2006. [ 11 ] Mr. Lundberg is the only father that Trenton has known, as Trenton’s biological father turned to drugs and, as a result, never formed a parental attachment. [ 12 ] Mr. Lundberg began a relationship with Marlys Vis in about August 2012. Ms. Vis has two children from a previous relationship. [ 13 ] A consent order of Master Baker was entered into at a judicial case conference held on February 13, 2013.

Both Trenton and Raeleen were declared as children of the marriage of the parties and orders were made dealing with property division, spousal support, joint guardianship under the Family Relations Act , R.S.B.C. 1996, c. 128, shared parenting time and parenting responsibility, child support and annual exchange of financial information. [ 14 ] Shared parenting time pursuant to that order ran into difficulties. Both parties allege the other interfered with or were uncooperative in scheduling time with the children. [ 15 ] Of a larger concern was Mr. Lundberg’s schedule.

It is undisputed that he works out of town, either in North-Eastern B.C. or Alberta, during the winter. In doing so, he spends from 3 to 10 weeks at a time on the job, followed by a week or two at home. He is home for longer periods during the spring break up, but has generally worked in Hazelton, 5 days per week, in the summers. [ 16 ] When Mr. Lundberg was out of town, the care of the children defaulted to Ms. Vis. Ms. Lundberg sets out concerns in her affidavit that Ms. Vis was making medical decisions for the children without her knowledge or consent. [ 17 ] One such incident arose when Ms.

Vis had to take Trenton for emergency treatment for what turned out to be appendicitis. Ms. Lundberg was not advised about Trenton’s illness until approximately 4 hours after he was taken to the doctor, when it had been determined that he would require surgery. [ 18 ] I found Mr. Lundberg’s evidence about this incident troubling. In his affidavit sworn February 28, 2014, Mr. Lundberg deposed: In June 2013, the children were to stay with us from June 13 th to June 20 th . On June 15 th Trenton got ill and we had to take him for emergency surgery to have his appendix out in Terrace.

We then told the claimant about it immediately. [ 19 ] Ms. Lundberg took issue with this in her affidavit sworn March 3, 2014, pointing out that Mr. Lundberg was at work in Hazelton when this occurred. [ 20 ] Ms. Vis swore an affidavit in response on March 7, 2014. As Mr. Lundberg was away at camp at the time, she appends notes that she swears are the mutual responses of her and Mr. Lundberg. In those notes, they say the following occurred: Marlys did take Trenton to the Smithers Hospital at 8:45 in the morning of Trenton’s emergency surgery. We went because Trenton was complaining of stomach pains.

Marlys took him first to the clinic of Dr. Strauss (which is Trenton’s family doctor) and they sent them to the hospital. Upon arriving at the hospital, nurses continued to monitor him, and examine him to see what was wrong. Marlys kept Tom up to speed every hour that they were there. … We were going to stay for maybe another half an hour but then Trenton’s pain got worse, within 30 minutes, we were told that Trenton needed to have his appendix removed. That was when Marlys contacted Sheri. … [ 21 ] There is no explanation given for the misleading evidence provided by Mr.

Lundberg in his February 28, 2014 affidavit. [ 22 ] Ms. Lundberg also complained of other instances of Ms. Vis taking Trenton to medical appointments without advising her of the appointments. [ 23 ] At about this time in 2013, Ms. Lundberg raised the issue of the children being left for periods with Ms. Vis when Mr. Lundberg was away. Mr. Lundberg responded to her concerns with several abusive text messages, which I shall not repeat. [ 24 ] This apparently came to a head one week when Ms. Lundberg believed Mr. Lundberg was home and spending parenting time with the children, when he was in fact at work. Ms.

Lundberg indicated that she would be consulting her lawyer, and that she didn’t share custody with Ms. Vis. Mr. Lundberg said: Go ahead, I was supposed to be home and we had a major incident and had to stay, agreement says equal time, if this is how I choose to spend it then that is my choice, it’s unfortunate that I couldn’t be there when I wanted to but I have made arrangements for providing

proper care in my absence. [ 25 ] Ms. Lundberg also raised the issue that Mr. Lundberg was refusing to contribute to the daycare expenses she was incurring. Mr. Lundberg took the position that there was no need for the children to be in daycare when Ms. Vis was home and was able to look after them. He took the position that the claimant was being irrational in refusing to allow the children to integrate into his new family.

Saying, amongst other things, “… unfortunately, the claimant has not been able to see that I am sharing my life with Marlys and that as a result, the children will share their lives with her as well.” [ 26 ] As a result, an application was brought by Ms. Lundberg. That application was eventually heard on March 14, 2014 by Punnett J. along with a cross application by Mr. Lundberg. [ 27 ] In Ms. Lundberg’s application, the relief sought included a divorce and various Family Law Act orders, including orders dealing with advising of medical matters and:

a) Mr. Lundberg shall immediately notify Ms. Lundberg if he will not be exercising his parenting time with the children in person and intends to leave the children in care of another.

b) If Mr. Lundberg does not exercise his parenting time with either child in person for more than 12 hours then Ms. Lundberg shall resume care of the children. [ 28 ] In addition, Ms. Lundberg sought a s. 211 report on the needs and views of the children, and the ability and willingness of each party to meet those needs. [ 29 ] Other orders were sought regarding financial disclosure, child support and extraordinary expenses and holiday parenting time. [ 30 ] Mr. Lundberg’s cross application sought an order that Ms.

Vis be added as a party, so that she could advance a claim for guardianship for Trenton and Raeleen, an order that Trenton’s biological father be added as a party to establish his income and child support obligations for Trenton, an alternative service order for Trenton’s biological father, and a variation of paragraph 4 of the consent order of Master Baker in the following terms: [4] Mr. Lundberg and Ms. Lundberg shall share parenting time and parenting responsibilities for the children of the marriage according to the following schedule: a.

On Sunday, March 16, 2014 at 4:00 pm, the children shall be picked up by either the respondent, Thomas Eric Lundberg or his partner Marlys Vis from the home of the claimant, Shari Jaclyn Lundberg. On the following Sunday, the children will be picked up by the claimant, Shari Jaclyn Lundberg from the home of Thomas Eric Lundberg and Marlys Vis for the following 7 days. b. That the children shall reside in the homes of the parties alternating pursuant to that

schedule until further order of the court. c. If the children are required to attend with any doctor or dentist, or other medical professional during the time that the children are with one family or the other as set out in this order, the other parents shall be informed of the medical visit as soon as reasonably possible by email. [ 31 ] In support of his application, Mr. Lundberg brought considerable evidence regarding his position that the children were better off in the care of him and Ms. Vis.

Some examples of that include: What Trenton and Raeleen need is stability and routine and it is my observation that they get that with Marlys.

I have to say that it has become increasingly in my judgment that they do not get that healthy routine and attention when they are in the care of the claimant. … The biggest difficulty that Marlys and I increasingly have with the children is that we, over the course of the past year, since the making of the consent order, have become increasingly anxious about the care provided for the children by the claimant. … This is particularly the case because Marlys and I have increasingly received expressions of concern from health care and school professionals who provide care for the children about their care by the claimant. … In October 2013, I was contacted by the principal at the children’s school because Trenton had been late every day since school started (during the entire month of September, the children had resided completely with the claimant).

The principal wanted us to keep track of the days that Trenton was living with us so that the school could monitor his behaviour during those days as opposed to the days he was with the claimant.

a) From Ms. Vis’s March 7, 2014 affidavit: What we wish to do is to have the court make an order so that the children will have some stability for the next year while we get this matter to a trial.

c) From the notes attached to Ms. Vis’s March 7, 2014 affidavit: We even confronted Trenton asking him if he would prefer to be at our home for a week and then his mom’s for a week and he agrees that it would be a good idea to continue with a routine of that, we explained that sometimes Tom wouldn’t be there and asked if he would still want to come and Trenton stated that he would still prefer to go to a

schedule of a week on a week off. …

Trenton knows that Tom is not his biological father, however we do support Trenton and we do LOVE Trenton with all our hearts. We want to help Trenton, and we do want to continue to provide him with the things that we can help him with. We do not feel that supporting Shari with more money [will] help improve Trenton’s life. We feel that being committed to Trenton and being an active

part in Trenton’s life will far more benefit him than giving Shari more money will. Trenton needs to know that we love him and that we want him to be a part of our lives. Money does not prove that we love this child. [ 32 ] Although there were instances of concern raised regarding Raeleen, including alleged lack of proper concern regarding cleanliness and a fungus infection, the majority of this evidence was about Trenton. [ 33 ] Ms. Lundberg takes issue with the allegations regarding Trenton’s school, including one apparently received in a letter from counsel for Mr.

Lundberg on January 24, 2014, suggesting that the principal had recommended that Trenton live with Mr. Lundberg the majority of the time. Ms. Lundberg appends emails to and from the school principal in which the principal denies this, saying, “The school would never make such a recommendation, as we are not in the habit of interfering in what are really not our issues.” Although this is not the best evidence, it aligns with common sense. I find it hard to believe that the school principal, as opposed to Mr. Lundberg and Ms.

Vis, would want to keep track of the days Trenton was living in each house and monitor his behaviour at school accordingly. [ 34 ] As noted, this matter came before Punnett J. on March 14, 2014. The parties advised the court at that time that the respondent’s application regarding Trenton’s biological father was no longer being pursued, as the parties had agreed that Mr. Lundberg would henceforth not be a parent or guardian of Trenton. [ 35 ] Mr. Lundberg and Ms. Vis have not seen Trenton since. [ 36 ] That calls into question both the rationale for and the veracity of the allegations he and Ms.

Vis made about Ms. Lundberg’s care of the children. It seems that Mr. Lundberg was willing to sacrifice his relationship with Trenton in order to eliminate his obligation to support him. [ 37 ] Returning to the hearing before Punnett J., on the application of Ms. Lundberg, a divorce was granted.

It was then ordered by consent that there would be a s. 211 short form report prepared addressing the needs and views of Raeleen and the ability and willingness of the parties to meet her needs. [ 38 ] In addition, holiday time was agreed so that the parties would have parenting time with Raeleen for half of the Christmas and Spring Break holidays. In the summer, each party would be entitled to two weeks of uninterrupted parenting time. [ 39 ] The orders sought by Ms.

Lundberg regarding medical matters were granted on a mutual basis. [ 40 ] As to the balance of the issues of import for this application, fortunately we have the benefit of Punnett J’s reasons. As they are not published, I will quote from them extensively. The relevant portions follow: [8] Paragraph (

c) will provide that during such period as the respondent has parenting time with the child R.F.L. he will immediately notify the claimant if he will not be exercising his parenting time with the child in person and intends to leave the child in care of another for a period of time in excess of two hours and sub-para. (d), in the event that the respondent is not exercising his parenting time with either child in person for more than 12 hours the claimant shall resume care of the child.

That will relate to the order I will make later in these reasons with respect to parenting generally. … [27] With regard to para. 6, the father submits that there should not be a sharing of daycare costs because daycare is unnecessary. His reasoning for that is that his new partner is a stay-at-home mom and is readily available to provide care for the childe thereby obviating the need for daycare. I am advised however, by Mr.

Hudson, that the situation now is that the respondent and his new partner reside some 25 kilometres outside of Smithers, British Columbia which would meant to avail herself of the offer of Ms. V. to provide care for the child when the mother is at work would entail a 50 kilometre round trip -- [28] MR. GREENE: Oh, no.

My client pick them up. [29] THE COURT: It would still involve a 50 kilometre round trip for the child. … I will make an order that pursuant to s. 7 of the Guidelines , the respondent shall share in the costs of daycare and other extraordinary expenses on a pro rata basis in proportion to the parties’ respective incomes. … Application of the Respondent … [39] It is the father’s position that he has established a new life with Ms. V.

They have a family, including other children and that R.F.L. is a part of that family and that it is in the best interests of R.F.L. that she have the opportunity to experience, be part of and have the stability of that family unit. From that logic he submits that it is in R.F.L.’s best interests that even if he is away working out of town in Northeastern BC her best interests would be served by her remaining on a regular basis in his household in his absence. [40] The position of the claimant is that she is not opposed essentially to equal sharing of parenting time with the respondent.

Where, as I mentioned, they

part company is whether the child R.F.L. should spend essentially 50% of the time in the respondent’s household even if the respondent is not there for periods in that 50% period of time. …

[41] On an interim application such as this and I make no comment on what might be the position of the Court at trial, I do not accept that it is in the best interests of R.F.L. that when her father is not in town she should remain with the father’s new partner in their household rather than with her biological mother. In my view the prevailing law is that the two individuals with whom the child should spend her time are, all things considered, either the child’s father, their mother or both. The difficulty that arises from that is that the father’s

schedule in unpredictable. [42] I have considered simply making an order that when the father is present he shall have parenting time, but that creates difficulties because he has periods of time during the year when he is here for possibly months on end, which would deny the mother parenting time with her child. I am also concerned given that we are dealing with a three-year-old child lengthy periods away from either parent is to be avoided.

Unfortunately the father’s work inevitably results in him not seeing his daughter as much as would be ideal. [44] As a result I am going to order that the father shall give a minimum of 24 hours’ notice in advance to the mother of when he is going to be in Smithers and the father shall be entitled to parenting time with his daughter upon arriving in Smithers until such time as he leaves, not to exceed seven days each time. However if he is here for a lengthy period of time then he is entitled to have the child on alternating weeks. … … [51] That leaves the issue of adding M. … [53] THE COURT: M.

All right, Thank you. … Ms. V. as a party to the action. The respondent wishes to add his new partner as a party in order that she can advance a claim for guardianship. The application is made pursuant to Rule 8-2(7)(

c) of the Supreme Court Family Rules , B.C. Reg. 169/2009 and ss. 50 and 51 of the FLA. Mr. Greene explains the reason for wishing to add Ms.

V. in practical terms is to avoid the need to have to commence a separate application in which she could claim such relief and in more practical terms that because she is in the role of a step-mother in the new family unit, she has a special interest in providing care for R.F.L. and that guardianship should flow from that in the interests of the child and her participation in the upbringing of the child. [54] I have significant concerns that such an order would be in the best interests of the child.

In my view the thrust of the FLA is to encourage resolution of family disputes not to have the legal system contribute to the escalation of family disagreements. I cannot see how such an application can benefit the best interests of R.F.L. To have a third party, who is currently the partner of one party, permitted to intercede and to be placed on a similar legal footing to the natural parents in my view is not appropriate.

While there may be circumstances where it can be justified those in my view would be highly unusual. [55] The material clearly evidences considerable animosity between the claimant and apparently Ms. V. I make no comment on the source of that or who is responsible for it but the fact is it appears to be present. [56] To permit the joinder of an additional party would, and I agree with Mr. Hudson on this, undermine the relationship of the child with her mother. It raises potential implications if the respondent and Ms. V. separate so we end up with three guardians and I tend to agree with Mr.

Hudson as well that the presumption under the FLA is that guardians are normally two individuals and in the normal course those are the natural father and the natural mother. [57] I appreciate this is just an application to join the step-mother in order that she can apply for guardianship but in my view I should not even do that without a basis that establishes it is going to be in the best interests of the child and as I have indicated I am not satisfied that such is the case on the material before me. [ 41 ] The s. 211 report was produced by Nancy Callan, a Family Justice Counsellor, on July 31, 2014. Ms.

Callan interviewed the parties, Raeleen, Trenton, Ms. Vis, a former and current daycare provider, the family doctor, two teachers, a Ministry social worker and a babysitter. [ 42 ] In her report, Ms. Callan notes several times that Mr. Lundberg is of the view that Ms. Lundberg is not a capable parent and further that it is his belief that Raeleen should live with him and Ms. Vis “full time”. [ 43 ] Ms. Callan was told of a number of concerns that Mr. Lundberg had with Ms. Lundberg’s care of the children. She investigated matters with the family physician, who she says knows all the parties well.

The family physician advised Ms. Callan that, in his view, the children were well cared for. [ 44 ] Apparently, the Ministry of Children and Family Development had been involved, although I do not know on what basis. The social worker advised Ms. Callan that the Ministry “deemed the concerns raised about Shari’s parenting best dealt with through the Family Law Act and the file was closed.” [ 45 ] A teacher advised Ms.

Callan that she believed “Shari takes care of her children and … they always come to school with “nice clothes and nice food.”“ [ 46 ] Her report indicates that Raeleen’s primary attachment is to her mother, but that she is also strongly attached to her father and loves Ms. Vis. [ 47 ] Ms. Callan concludes, amongst other things: Should Raeleen begin living in Tom’s home full-time, this would mean separating Raeleen from her brother Trenton and a non-parent, Tom’s partner Marlys, would become Raeleen’s primary caregiver outside of spring and summer months when Tom is home.

Considering Raeleen’s attachment to Shari, this would not seem to be in her best interests. Seven days is a long time to be away from Shari at Raeleen’s age, given the strong bond the child appears to have with her. When Tom is working away at camp, Raeleen often

does not see him for weeks, which is a long time to be away from him at her age, given the bond the child has with him. [ 48 ] Although it is clear that Mr. Lundberg was not happy with the order of Punnett J., after that hearing, nothing further was done in this action. No trial date was set. Mr. Greene candidly advised me that until Ms.

Lundberg provided notice of her intention to move, the respondent was considering whether a trial would be necessary. [ 49 ] Once notice of relocation was given, the parties amended their pleadings to incorporate their positions regarding the potential move and a trial date was set for April 25, 2016. III. Relocation [ 50 ] Ms. Lundberg provided notice of relocation in accordance with s. 66 of the Family Law Act on January 22, 2015. Her proposed move was to occur on or before September 1, 2015, and was to allow her to pursue education in Vernon to become qualified as a registered massage therapist.

She set out a suggested plan for parenting time with Raeleen and asked that the parties work together to come to an amicable resolution regarding her relocation. [ 51 ] Mr. Lundberg filed his application to prohibit Ms. Lundberg’s relocation on February 16, 2015. Ms. Lundberg filed her cross application on February 26, 2015. [ 52 ] In support of Mr. Lundberg’s application was the affidavit of Ms. Vis, sworn February 12, 2015. Mr. Lundberg was away at camp at the time, but Ms. Vis swears that Mr. Lundberg had reviewed and approved of her affidavit. [ 53 ] With respect to the proposed relocation, Ms.

Vis says: [relocation] would frustrate the agreement and interim court order for shared custody between Shari Lundberg and Thomas Lundberg (“Tom”) and to their child Raeleen. [ 54 ] Ms. Vis says that although they have tried to comply with “what we anticipated was the intent of the order” of Punnett J., “Ms. Lundberg has gone out of her way to try to interfere with any reasonable ongoing time for Raeleen and Tom to be together.” No examples of that are given. [ 55 ] Referring to the order of Punnett J., Ms.

Vis says: We are still not satisfied that it is an order which is in Raeleen’s best interest since the order is structured around Tom’s presence, rather than around Raeleen’s

part in our family… [ 56 ] Ms. Vis concludes: If the claimant in this matter moves to Vernon, Raeleen should live with us full time and I would therefore need to be a guardian. [ 57 ] Ms. Lundberg responds in her affidavit sworn March 24, 2015. Amongst other things, Ms. Lundberg takes issue with Ms. Vis’s continued insistence on Raeleen spending more time with her family when Mr. Lundberg is away. She has concerns about the failure of the respondent to acknowledge Raeleen’s bond with and need for connection with Trenton. She asserts that Raeleen is not treated equally with Ms. Vis’s children.

She points out that Mr. Lundberg refuses to contribute to the cost of sending Raeleen to the Christian School, despite the fact that Ms. Vis’s children attend there. Ms. Lundberg sees that Raeleen is enrolled there on a limited basis without contribution from Mr. Lundberg. [ 58 ] Ms. Lundberg deposes that she does not see how Mr. Lundberg’s access would be frustrated by her move, as at that point Mr. Lundberg had not seen Raeleen since Christmas - a period of approximately 10 weeks. She further says that from September 2014 through December 2014, Mr.

Lundberg, due to his camp schedule, saw Raeleen for only 3 weeks. [ 59 ] I have reviewed the calendars attached to the affidavit of Mr. Lundberg, sworn April 20, 2015, the evidence that Mr. Lundberg was away from Christmas 2014 until about mid-March, 2015, and assume he had parenting time with Raeleen for 7 days in that month. Mr. Lundberg’s calendar was missing the month of May, however, I conclude that in the year following the order of Punnett J., Mr. Lundberg exercised parenting time with Raeleen for 96 of the 334 days in the remaining months, or approximately 29 percent of the time.

There were long gaps from September to the end of March when, due to his work, Mr. Lundberg did not see Raeleen for weeks - the norm seems to be about 4 weeks absence, with the longest being the period following Christmas. [ 60 ] Ms. Lundberg asserts that Mr. Lundberg has worked in the same manner since he was 17, including all through their relationship, and that as a result she has always been the primary caregiver to the children. While Mr. Lundberg’s time at home undoubtedly varied, I am satisfied that is the case. [ 61 ] Turning to the proposed relocation, Ms.

Lundberg’s evidence is that, regardless of whether she remains in Smithers or relocates to Vernon, Raeleen will be enrolled in the Christian School in one location or the other in September 2015. [ 62 ] Ms. Lundberg deposed in her March 24, 2015 affidavit that she anticipated being admitted to the Okanagan Valley College of Massage Therapy in September 2015. In his response affidavit, Mr. Lundberg deposes that he does not believe that Ms. Lundberg is capable of meeting the academic acceptance requirements. [ 63 ] In response, in her affidavit of April 27, 2015, Ms.

Lundberg attaches the college’s conditional acceptance letter dated April 9, 2015. The relevant conditions are that she provide evidence of her grade 12 graduation and documentation of grade 12 English proficiency. She advises that the Bulkley Valley Christian School will be providing her transcripts directly to the college, but that she graduated with a full diploma in 2005 including meeting the requirements for English 12. I am satisfied that no impediment has been

shown to Ms. Lundberg’s enrollment. [ 64 ] Ms. Lundberg’s evidence is that the program is two years and that she would be qualified as a registered massage therapist upon completion. Employment in that area, she deposes, will provide a good income for her and the children. [ 65 ] Her evidence is that in a spa setting she could make approximately $30 per hour, and in private practice up to $80 per hour. She attaches many job vacancy listings showing that full time employment is available. Some of those are entry level positions, some require several years of experience.

The additional benefit to these positions is that they provide medical and dental benefits. One of the positions advertises a salary of $80,000 per year. That is undoubtedly not an entry level position, however. [ 66 ] She compares that to her present circumstances. She had Trenton when she was 20 years old and was unable to take much training or education beyond high school. As a result, she has had basic entry level jobs with pay ranging from $8 - $13 per hour. The only exception was a position in a family company, where she earned $24 per hour, but that company was sold. [ 67 ] Mr.

Lundberg in his response affidavit says that it is “foolish” to believe that a massage therapist could make $70,000 - 120,000 per year. [ 68 ] Ms. Lundberg responds with evidence that her cousin, being a massage therapist in Vancouver, takes home $72 per hour working 35 hours per week and 48 weeks per year - resulting in a take home pay of $120,000 per year. [ 69 ] While I certainly agree that Ms. Lundberg will not be achieving salary levels of $70,000 in an entry level position, I do conclude that qualification as a massage therapist would provide Ms.

Lundberg with considerable increased opportunity for economic advancement over time. [ 70 ] Ms. Lundberg says that she has not yet arranged accommodation in Vernon, but that there is a large student population there and usually vacancies in appropriate units can be located as the semester approaches.

She says the school has a website where such vacancies are posted and that she has reviewed what is available now in accommodations suitable for an adult and two children and has found the costs range from $900 to $1200 per month, with utilities ranging from $80 - $160. [ 71 ] She points out that both children will be in school full-time in September, allowing her greater freedom to undertake a program of studies and says that is why she has chosen to pursue further education at this time. [ 72 ] Mr. Lundberg disputes that.

He submits that her proposed relocation is being made in bad faith to limit his relationship with Raeleen. He says Ms. Lundberg did the same thing to Trenton’s biological father. [ 73 ] Ms. Lundberg responds that Mr. Lundberg is well aware that she moved from Vancouver to Smithers before Trenton was born due to Trenton’s biological father being on a “prolonged crack bender”. She says that when he sobered up he moved to Smithers as well and lived there for about a year. [ 74 ] Ms. Lundberg’s family reside in Smithers and she maintains a relationship with them and between them and the children. In addition, Ms.

Lundberg maintains a relationship with Mr. Lundgren’s mother, Ms. Rosenkranz, who lives in Fort St. John, and between her and the children, although Mr. Lundgren is presently estranged from Ms. Rosenkranz. [ 75 ] Mr. Lundgren says Ms. Lundgren maintains a relationship with Ms. Rosenkranz in order to drive a wedge between him and Raeleen. Referring to a camping trip in 2013, Mr. Lundgren says that Ms. Lundgren has wrongly given Ms. Rosenkranz time with Raeleen when she should have been with him and further says that Ms. Rosenkranz is unreliable. [ 76 ] Ms.

Rosenkranz has provided a detailed affidavit in support of Ms. Lundberg’s application to relocate. She explains that Mr. Lundberg’s father was very abusive resulting in her separation and divorce and this resulted in her relationship with the respondent being strained and deteriorating to non-existent. [ 77 ] She says that in 2006 - 2007, however, when Mr. Lundberg worked in the Fort St. John area, he lived at her house for extended periods of time and their relationship improved to where Mr. Lundgren was best man at her wedding in 2008. She met Ms. Lundberg, and she and Trenton became a part of the family.

Sometimes Trenton spent time with Ms. Rosenkranz without his parents. When Raeleen was born, Ms. Rosenkranz was in Smithers and she babysat her for a week when Raeleen was only 3 months old. In addition, Mr. Lundberg asked her to look after both children when he and Ms. Lundberg went on vacation to Hawaii when Raeleen was about a year and a half. This latter is confirmed by Ms. Lundberg in her affidavit. [ 78 ] Ms. Rosenkranz says they make a trip to Smithers at least three times a year to see the children and that they will sometimes meet when Ms.

Lundberg brings the children to Prince George for visits. [ 79 ] After an apparently nasty scene initiated by Mr. Lundberg at Christmas 2013, she says she and Mr. Lundberg are again estranged. In addition, Mr. Lundberg refuses to allow her contact with Raeleen. Thus, Ms. Lundberg is the only avenue for Raeleen to maintain contact with Ms. Rosenkranz. [ 80 ] Mr. Lundberg deposed that although he has complied with the order of Punnett J., Ms. Lundberg has not. Few such details are provided.

He says he needs time to amass the evidence, which he says can only be properly canvassed at a full trial. [ 81 ] Further, despite the order of Punnett, J., Mr. Lundberg says that he has repeatedly asked the claimant why Raeleen cannot stay with Ms. Vis rather than be in daycare. He says this is part of the claimant’s effort to try to provoke a dispute between them.

With respect, given the order of Punnett J., and the fact that the respondent apparently had no intention of taking the matter to trial, it appears to me that it was the respondent provoking a dispute by persisting in pushing this agenda. [ 82 ] As to the s. 211 report, Mr. Lundberg says:

12. The existing report in this matter has recommended that the “split custody” arrangements ordered by Mr. Justice Punnett be continued. That report is wrong. That report did not carefully analyze the difference between our two homes. The reporter seemed to focus more on the issues regarding Trenton and not what would be best for Raeleen. … [ 83 ] I do not agree with Mr. Lundberg’s

interpretation of the s. 211 report. It appears to me that Ms. Callan took heed of the concerns that Mr. Lundberg had and consulted appropriate people about them to reach her conclusions. [ 84 ] Mr. Lundberg concludes: 13.

Based on our experience during the past year, with the violations of Judge Punnett’s order by the claimant and with the claimant’s incapacity to deal with the fact that I now have my life with Marlys and that Marlys is therefore a part of Raeleen’s life, I do wish to be able to put the evidence forward that the application of the claimant to move to the Okanagan is purely designed to interfere with Raeleen being able to spend at least some time with us in a happy and safe home.

We do wish to be able to proceed with the trial to be able to establish that Raeleen should live with us principally and visit with the claimant, whether she is living in the Bulkley Valley or the Okanagan. Increasingly, it is becoming clear that bouncing Raeleen back and forth between our homes is hurting Raeleen. I believe that results from the problems that the claimant is creating. [ 85 ] Ms. Lundberg proposes that if her relocation is allowed, Mr. Lundberg have access to Raeleen on the following basis:

a) Half of each Christmas break alternating from year to year as to who has the first and second half.

b) Half of each summer break, either July or August each year as agreed upon in advance by the parties.

c) Spring break each year.

d) For the above travel, Ms. Lundberg to bear the costs of travel to and from Prince George, British Columbia and Mr. Lundberg to bear the costs of travel to and from Prince George from Smithers.

e) Further access if Mr. Lundberg is in Vernon, on 48 hours notice.

f) Telephone and facetime contact at least twice per week. [ 86 ] In addition, Ms. Lundberg would bring Raeleen with her to Smithers when she visits her family, who remain resident in Smithers. There would be an opportunity for Mr. Lundgren to have some time with Raeleen during those visits, if he is in town. IV. Legal Framework [ 87 ] Counsel were frankly unsure whether these applications were appropriately made under the Family Law Act or the Divorce Act .

Further, they were unsure whether this was an application for a variation of a final order or an interim order, and of Master Baker’s order or Punnett J.’s order. [ 88 ] The respondent proceeded largely on the basis that this was an application for variation of an interim order, whether that is considered to be the order of Master Baker or the order of Punnett J. His position was that this order should not be made on an interim application and that the status quo should prevail until trial. Mr. Lundberg is of the view that Ms.

Lundberg should put off her plans until after the trial when the question could be fully canvassed on all of the evidence and proper determinations made as to the credibility of the parties. [ 89 ] Ms. Lundberg submitted that the order of Master Baker was a final order and the order of Punnett J. was an interim order.

Counsel proceeded on the basis that this was an application under s. 17 of the Divorce Act , but also argued the provisions of the Family Law Act . [ 90 ] On the one hand, this underlines the importance of counsel knowing and identifying, at each step in a family law proceeding, the statutory basis for the orders sought.

On the other hand, it would seem to be out of step with the objects of both the Divorce Act and the Family Law Act if the result of this application would be different depending on which statute prevailed. [ 91 ] It appears to me that the order of Master Baker made at the judicial case conference on February 13, 2013 was in some respects a final order - in that it deals with property division, dismissal of the claim for spousal support by Ms. Lundberg, joint guardianship and shared parenting time and responsibilities.

Regarding child support, however, it is clearly an interim order, as it is said to be made without prejudice. [ 92 ] The order of Punnett J. of March 14, 2014, with respect to matters relevant today - being, in particular, the provision that when Mr. Lundberg is away for more than 12 hours during his parenting time Ms. Lundberg is to resume care of Raeleen, is clearly an interim order. [ 93 ] I agree with the submissions of Mr. Greene that normally preservation of the status quo pending trial is considered to be in the best interests of the children.

Where, however, there is a material change in circumstances that was not contemplated at the time of the original order, a variation will be considered.

Further, in circumstances such as this, where a trial might never have proceeded and therefore a final order might not have been obtained, preservation of the status quo is less compelling. [ 94 ] In these circumstances, in my view the appropriate approach is to consider the interim nature of the orders of Punnett J. and the fact that the final orders of Master Baker were made by consent, and hence without fully canvassing the evidence and issues, as a factor in the analysis of whether an order permitting relocation is appropriate.

[95] As to whether this application is properly under the Divorce Act or the Family Law Act, although the approaches are different, itseems clear that an analysis of this application will ultimately turn on what is in the best interests of the child. Regardless, I will reviewthe legal approach under both statutes. A. Divorce Act [96] The relevant Divorce Act provisions are contained in s. 17: 17

(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (

a) a support order or any provision thereof on application by either or both former spouses; or (

b) a custody order or any provision thereof on application by either or both former spouses or by any other person. …

(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in thecondition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the lastvariation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take intoconsideration only the best interests of the child as determined by reference to that change. …

(6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been consideredin making the order in respect of which the variation order is sought. …

(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage shouldhave as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where thevariation order would grant custody of the child to a person who does not currently have custody, the court shall take into considerationthe willingness of that person to facilitate such contact. [97] The decision in Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27, remains the seminal decision on relocationunder the Divorce Act.

There, the majority summarized the considerations on such an application as follows: [49] The law can be summarized as follows: 1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a materialchange in the circumstances affecting the child. 2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child,having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them. 3.

This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views areentitled to great respect. 5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of thecase. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia: (

a) the existing custody arrangement and relationship between the child and the custodial parent; (

b) the existing access arrangement and the relationship between the child and the access parent; (

c) the desirability of maximizing contact between the child and both parents; (

d) the views of the child; (

e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs ofthe child; (

f) disruption to the child of a change in custody; (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [50] In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new locationmust be weighed against the continuance of full contact with the child’s access parent, its extended family and its community. Theultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?

[98] The court in Gordon also considered the pre-conditions necessary for such an application to be considered on its merits: [13] It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change inthe condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) whichmaterially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge whomade the initial order. [14] These are the principles which determine whether a move by the custodial parent is a material change in the “condition, means,needs or other circumstances of the child”.

Relocation will always be a “change”. Often, but not always, it will amount to a change whichmaterially affects the circumstances of the child and the ability of the parent to meet them. A move to a neighbouring town might notaffect the child or the parents’ ability to meet its needs in any significant way.

Similarly, if the child lacks a positive relationship with theaccess parent or extended family in the area, a move might not affect the child sufficiently to constitute a material change in its situation.Where, as here, the child enjoyed frequent and meaningful contact with the access parent, a move that would seriously curtail thatcontact suffices to establish the necessary connection between the change and the needs and circumstances of the child. [15] The third branch of the threshold requirement of material change requires that the relocation of the custodial parent not have beenwithin the reasonable contemplation of the judge who issued the previous order: Messier v.

Delage, (SCC), [1983] 2S.C.R. 401. If a future move by the custodial parent was considered and not disallowed by the order sought to be varied, the accessparent may be barred from bringing an application for variation on that ground alone. The same reasoning applies to a court-sanctionedseparation agreement which contemplates a future move. In such cases, the application for variation amounts to an appeal of the originalorder. B. Family Law Act [99] Section 37(1) of the Family Law Act must be considered, as it sets out certain factors to be assessed in determining what is in achild’s best interests: 37

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, theparties 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 thefollowing: (

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, parentingtime 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 thechild 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 carefor 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, includingwhether 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 insubsection (2), and only to the extent that it affects that factor. [100]

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 beexpected 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) a 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. [ 101 ] In C.A.P. v M.S.P. , 2015 BCSC 183 , the court held at paras. 45-46 that interim orders and orders made at judicial case conferences qualified as orders for the purposes of s. 65(2)(b). Thus, this division of the Family Law Act applies. [ 102 ] An application for relocation is then governed by s. 69 of the Family Law Act , which provides: 69

(1) In this section, “relocating guardian” means a guardian who plans to relocate a child.

(2) On application by a guardian, a court may make an order permitting or prohibiting the relocation of a child by the relocating guardian.

(3) Despite section 37 (1) [best interests of child] , the court, in making an order under this section, must consider, in addition to the factors set out in section 37 (2), the factors set out in subsection (4) (

a) of this section.

(4) If an application is made under this

section and the relocating guardian and another guardian do not have substantially equal parenting time with the child, (

a) the relocating guardian must satisfy the court that (

i) the proposed relocation is made in good faith, and (ii) the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child’s other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child’s life, and (

b) on the court being satisfied of the factors referred to in paragraph (a), the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise.

(5) If an application is made under this

section and the relocating guardian and another guardian have substantially equal parenting time with the child, the relocating guardian must satisfy the court (

a) of the factors described in subsection (4) (a), and (

b) that the relocation is in the best interests of the child.

(6) For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following: (

a) the reasons for the proposed relocation; (

b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities; (

c) whether notice was given under

section 66 [notice of relocation] ; (

d) any restrictions on relocation contained in a written agreement or an order.

(7) In determining whether to make an order under this section, the court must not consider whether a guardian would still relocate if the child’s relocation were not permitted. [ 103 ] The application of these provisions was considered by Madam Justice Fisher in Hadjioannou v. Hadjionnou , 2013 BCSC 1682 . I will not set out the analysis, which is contained in paras. 7-26, but I note that a consideration of the best interests of the child is paramount. V. The claimant’s position [ 104 ] Ms. Lundberg says that allowing her to move with Raeleen to Vernon will be in the best interests of Raeleen.

The move will allow Ms. Lundberg to improve her economic prospects, and as a result her emotional well-being, which ultimately will all be of benefit to the children. She submits that Mr. Lundberg’s access or parenting time with Raeleen will be preserved and in some ways improved by the proposal she has put forward. She submits that she has always been the primary caregiver to Raeleen due to Mr. Lundberg’s extended absences for work and as such, it is in Raeleen’s best interests that she stay primarily resident with Ms. Lundberg.

In addition, this resolution will allow Raeleen to continue her close relationship with her brother, Trenton. [ 105 ] Ms. Lundberg points out that her family resides in Smithers and, as a result, she and the children will be travelling there. She intends to maintain the relationships with her family and also with Ms. Rosenkranz, the respondent’s mother, who lives in Fort St. John and that without her that relationship, which Raeleen has had since birth, would be jettisoned. VI. The respondent’s position

[ 106 ] Mr. Lundberg says that Raeleen should reside primarily in his household, whether he is there or not. He submits that Ms. Vis and he provide a more stable and healthier environment for Raeleen. He submits that Ms. Lundberg is not a capable caregiver for Raeleen. [ 107 ] Mr. Lundberg says that the proposed move is in bad faith and is simply another tactic to drive a wedge between him and Raeleen. He questions whether Ms. Lundberg will even qualify for the program she plans to enroll in. [ 108 ] Primarily, however, his position is that this matter should not be determined on an interim basis.

He says there are serious issues that need to be aired at a full trial where credibility questions can be resolved properly. He says that Ms. Lundberg should postpone her plans until after the trial of this matter in April 2016. [ 109 ] Having said that, as long as Raeleen is primarily resident with him, he has no objection to Ms. Lundberg relocating and says he will facilitate contact between mother and daughter. VII. Analysis A.

Divorce Act [ 110 ] I am satisfied that the proposed move is a material change in the circumstances of Raeleen that was not contemplated at the time either order in this matter was granted. The provisions of s. 17 of the Divorce Act therefore apply and I must embark on a fresh inquiry as to Raeleen’s best interests. This is to be, in part, based on the findings of Punnett J., which are set out above. [ 111 ] Looking at the factors set out in Gordon , I will deal first with the present custody/access arrangements.

Punnett J. decided that it was not in Raeleen’s best interests to spend time in the respondent’s household if the respondent was away. He determined that Raeleen’s interests would be better served by spending time with her mother in those circumstances. I agree with his conclusion that, “the prevailing law is that the two individuals with whom the child should spend her time are, all things considered, either the child’s father, the child’s mother, or both.” [ 112 ] Since the order of Punnett J. was made, we have the benefit of the s. 211 report, which essentially confirms this conclusion. Mr.

Lundberg says the report is wrong. [ 113 ] Despite his obvious disagreement with the order and the s. 211 report, Mr. Lundberg had made no move to have the matter determined at a trial until the question of relocation arose, almost 10 months after the order was made. As noted, counsel advised that there was question in Mr. Lundberg’s mind as to whether a trial was needed. [ 114 ] Thus, the present situation is that Ms. Lundberg is the primary caregiver of Raeleen. Mr. Lundberg is away for many weeks at a time and has week on/week off access when he is in Smithers.

This results in him having Raeleen about 29 percent of the time. This situation is historic, as Mr. Lundberg has worked in this manner from well before the parties met and he has evinced no intention of changing. Although in 2013 his parenting time was increased to approximately 40 percent, that was unusual and does not change the underlying scenario. [ 115 ] These facts about Mr. Lundberg’s work and absences are not in issue.

There is no evidence in dispute, no credibility issue and a trial will not affect conclusions based on these facts. [ 116 ] Turning then to maximizing contact between the child and both parents. Obviously, time with Ms. Lundberg is maximized if Raeleen is primarily resident with her. From Raeleen’s perspective, however, the question becomes, how can we best maximize her time with both parents? [ 117 ] If primary residency were to be given to Mr. Lundberg, her time with her parents would be minimized drastically.

There would be long stretches of time when Raeleen would not have the care of either parent, but would be in the care of Mr. Lundberg’s present partner, Ms. Vis. That would be the situation regardless of whether Ms. Lundberg remained in Smithers pending a trial, or moved to Vernon as she plans. [ 118 ] I am confirmed in my view that such a situation would not be in Raeleen’s best interests by the reasons of Punnett J. [ 119 ] In addition, Raeleen’s relationship with her brother Trenton would be severed.

Again, not a situation that I consider to be in Raeleen’s best interests. [ 120 ] Raeleen’s views, as conveyed in the s. 211 report, show a child who is very bonded with her mother. Although she also has a bond with her father, it is understandably not as strong. Her time with him has been disjointed and limited throughout her young life. Although she expresses love for Ms. Vis, in my view, that cannot supplant her relationship with her mother. [ 121 ] To the extent that it is necessary to consider the reason for the move, I am satisfied that the move is planned in a bona fide effort to improve Ms.

Lundberg’s education and financial circumstances, and will ultimately, assuming she successfully completes her program, enhance her ability to meet the needs of the children. [ 122 ] Ms. Lundberg has, of course, additional compelling reason for becoming financially independent. She is not receiving any spousal support, as her claim in that regard was dismissed in the order of Master Baker. Although she received $30,000 under that order, that will not support her and the children on an ongoing basis. Further, she receives no support for Trenton. Mr.

Lundberg is no longer obligated to pay support for Trenton, and it doesn’t seem to be disputed that his biological father is a drug addict and has minimal, if any, involvement in Trenton’s life or ability to provide support for Trenton.

[ 123 ] Considering the disruption to Raeleen: Given her father’s extended absences from Smithers, she is already in the position of seeing him sporadically. As to removal from her family and community, she is at a young age, only just embarking on school. Her attachments to friends at daycare and such will be in flux in any event. I am satisfied that Ms. Lundberg will attempt to maximize Raeleen’s contact with her family, with Mr. Lundberg and, indeed, Mr. Lundberg’s mother. Raeleen will be attending the same type of Christian school in Vernon that she would attend in Smithers.

In addition, remaining with her mother has the benefit of maintaining the close relationship with her brother. [ 124 ] Should Ms. Lundberg then be obliged to stay in Smithers and put off her education plans until after a trial of this matter? [ 125 ] The only potential triable issues that I see raised by Mr. Lundberg are as follows:

a) The assertion made by Mr. Lundberg that Ms. Lundberg is not an adequate caregiver. That evidence was equally before Mr. Justice Punnett and I must conclude that he rejected it. Since then the s. 211 report confirms that Ms. Lundberg is an adequate caregiver. There is nothing that convinces me that a trial on this issue is required.

b) Mr. Lundberg’s desire to show that a massage therapist cannot make income in the range asserted by Ms. Lundberg. He brings no such evidence, whereas there is evidence both of pay levels and job opportunities appended to Ms. Lundberg’s affidavit. In addition, she has the evidence of her cousin’s employment. I would expect if Mr. Lundberg wanted to raise this to the level of a triable issue that he would bring at least something, other than his view that such claims are “foolish”.

c) Mr. Lundberg’s desire to prove that Ms. Lundberg has breached the order of Justice Punnett. There is evidence from Mr. Lundberg and Ms. Vis of problems in exchanges and timing of parental visits. Ms. Lundberg has her own version of events. This would, if proved, go to show that Ms. Lundberg would not facilitate access for Mr. Lundberg should she be permitted to relocate. I do not, however, see that this rises to that level. Mr. Lundberg, on his own evidence, has had week on/week off parenting time with Raeleen when he is in town.

Difficulties in exchanges, arguments or disputes, or evidence going back to 2013, are simply not sufficient to overcome the other facts. [ 126 ] Forcing this matter to trial would not only potentially delay Ms. Lundberg’s attempt to improve her financial situation, assuming she remained in Smithers, it could also have a negative impact on Raeleen, as she would spend the next year enrolled in school in Smithers and then be uprooted should Ms.

Lundberg succeed at the trial. [ 127 ] Thus, I do not consider that preserving the status quo until a trial of this matter is necessary. [ 128 ] The facts that are not in dispute are overwhelmingly in favour of allowing Ms. Lundberg’s application and permitting her to move to Vernon with access to Mr. Lundberg in accordance with the plan set out above. VIII. Family Law Act [ 129 ] The first question to be addressed in an analysis under the Family Law Act is whether the proposed relocation is made in good faith. [ 130 ] Mr. Lundberg says that Ms.

Lundberg has not shown she will qualify for the program she proposes, that she has exaggerated to a ridiculous extent the financial potential of this retraining, and that she has a history of moving in order to frustrate parental access. [ 131 ] Given her conditional acceptance and her evidence regarding her ability to satisfy those conditions, I am satisfied that it is likely Ms. Lundberg will be accepted to the college she proposes. [ 132 ] Although I agree that Ms.

Lundberg will not be walking into an entry level job at $70,000 per year, I am satisfied that her economic potential with a registered massage therapist qualification would be significantly enhanced. [ 133 ] Given the circumstances when Ms. Lundberg was pregnant with Trenton, I find no fault with her moving to Smithers. Indeed, Mr. Lundberg’s evidence in this regard appears disingenuous. [ 134 ] Ms. Lundberg certainly acted appropriately in giving more than seven months of notice of her proposed move so that the matter could be aired properly. [ 135 ] As noted above, Ms.

Lundberg has particularly good reason for seeking to improve her economic situation. Further, her evidence as to the timing of her decision to pursue this education is sensible - embarking on this path now that both children will be in school and she will have more flexibility. [ 136 ] I conclude that the proposed relocation is made in good faith. [ 137 ] As to access, Mr. Lundberg will have increased facetime or skype access with Raeleen and additional time in the summer, as well as half of Christmas and all of spring break.

He will be able to visit with Raeleen in Vernon and additional visits can be arranged when Ms. Lundberg is in Smithers to visit her family. Ms. Lundberg proposes to shoulder the lion’s share of the cost of travel, as she proposes the exchanges would take place in Prince George, which is considerably closer for Mr. Lundberg than it is for Ms. Lundberg. [ 138 ] The proposed access arrangements for Mr. Lundberg and Raeleen are reasonable and workable. [ 139 ] As noted above, I am also satisfied that Ms.

Lundberg will continue to work to preserve the other relationships that are important in Raeleen’s life. [ 140 ] Turning to the best interests of the child, although I have concluded that the parties do not have substantially equal parenting

time, there is no need to rely on the presumption in s. 69(4) of the FLA . [ 141 ] In considering all of the factors set out in s. 37(2) of the FLA , I am of the view, for the reasons set out above in my consideration of the best interests of the child under the Divorce Act , that this relocation is in Raeleen’s best interest. [ 142 ] Thus, the order will go permitting Ms. Lundberg to relocate to Vernon.

Her application in that regard is allowed, the respondent’s application to prevent the move is dismissed. [ 143 ] The order will go varying paragraph 4 of the order of Master Baker of February 13, 2013 and paragraph 17 of the order of Punnett J., such that Raeleen’s primary residence will be with Ms. Lundberg and Mr. Lundberg will have parenting time as follows:

a) Half of each Christmas break alternating from year to year as to who has the first and second half;

b) Half of each summer break, either July or August each year as agreed upon in advance by the parties;

c) Spring break each year;

d) For the above travel, Ms. Lundberg to bear the costs of travel to and from Prince George, B.C. and Mr. Lundberg to bear the costs of travel to and from Prince George to Smithers;

e) Further access if Mr. Lundberg is in Vernon, on 48 hours notice;

f) Telephone and facetime contact at least twice per week; and

g) Any additional time as agreed in writing between the parties. [ 144 ] Ms. Lundberg will have her costs in any event of the cause, but of her application only. There will be no costs for the respondent’s application. As the trial in this matter may not proceed, those costs are payable forthwith. “Master Muir”