B.E.M. v. J.T.B. Date:, 2017 BCPC 174

Citation: B.E.M. v. J.T.B. Date: 20170329 2017 BCPC 174 File No: 4166 Registry: Fort Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: B.E.M. APPLICANT AND: J.T.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. J. BRECKNELL Counsel for the Applicant: R. Nielsen Counsel for the Respondent: Z. Si Place of Hearing: Fort Nelson , B.C.

Date of Hearing: January 25, 2017 Date of Judgment: March 29, 2017 INTRODUCTION [ 1 ] The Applicant, B.E.M., (Ms. M.) asks for the Court’s endorsement of her relocation from Fort Nelson to Fort St. John with J.W.B., born [omitted for publication], (J.), her son with the Respondent, J.T.B. (Mr. B.). [ 2 ] Mr. B. opposes Ms. M.’s Application for relocation, and alternatively seeks increased parenting time with J. if it is granted. PERSONAL HISTORIES [ 3 ] Ms. M. is 24. She has suffered from ADHD for many years and is taking prescription medication under the direction of her doctor.

She also has regular appointments with a psychiatrist. [ 4 ] Although the contrary is alleged by Mr. B., Ms. M. states that she has no criminal record. She did voluntarily attend a treatment facility for drug addiction for seven months in 2010/2011. She regularly attends Alcoholic Anonymous and Narcotics Anonymous meetings. [ 5 ] Ms. M. moved to Fort Nelson to pursue employment opportunities. Other members of her family had preceded her to the community. Those family members subsequently moved away from Fort Nelson when the economy faltered. [ 6 ] Ms. M. obtained employment with Work BC in September 2012.

She progressed through a variety of positions in that agency rising to the position of Job Developer. Although her employment was steady, advancement was limited both by the location and Ms. M.’s lack of a university education so she decided to pursue further education. [ 7 ] Ms. M. moved in the summer of 2016 to Fort St. John to attend the Northern Lights College (NLC) where she is taking the Social Service Worker Diploma Program. It is a two-year program which she is spreading out over three years. It has the necessary prerequisites to allow pursuit of a bachelor’s degree which Ms.

M. hopes to take at the Royal Roads University in Victoria, B.C. [ 8 ] Mr. B. is 23. He was born and raised in Fort Nelson. He is an indigenous person, Dene and a member of the Fort Nelson First Nation (FNFN). He has a large extended family in the area. He states he has no criminal record. [ 9 ] He has held a variety of labouring positions in the oil and gas and transportation industries, but has had several periods of unemployment or employment uncertainty due to economic factors.

On many occasions his employment has required him to work in camps for several days at a time. [ 10 ] The Parties began their relationship in December 2012. The family lived in Fort Nelson from J.’s birth until August 2014 when they moved to the FNFN. J. began at the [omitted for publication] in July 2014, when Ms. M. returned to her employment with Work BC. [ 11 ] The Parties separated in May 2015. Mr. B. moved out and Ms. M. and J. remained living on the FNFN until August 2015 when she moved back to Fort Nelson. In August 2016, Ms. M. and J. moved to Fort St. John and began living with her mother.

LITIGATION HISTORY AND AFFIDAVIT EVIDENCE [ 12 ] An Application to Obtain an Order was filed by Ms. M. on August 18, 2015, seeking orders for guardianship, allocation of parenting responsibilities, and child support. [ 13 ] A Reply was filed by Mr. B. on September 28, 2015, opposing Ms. M.’s Application and seeking shared guardianship and parental responsibilities. [ 14 ] A Reply was filed by Ms. M. on September 28, 2015, opposing Mr. B.’s Reply and opposing a split of parental responsibilities. [ 15 ] A Notice of Motion was filed by Ms. M. on October 26, 2015, seeking return of J. to her care, alleging that Mr.

B. had withheld J. from her care. [ 16 ] An Affidavit was filed by Ms. M. on November 2, 2015, in support of her Notice of Motion. In that Affidavit she alleged that Mr. B. was not maintaining his parenting time obligations, that Mr. B. had vindictively interfered with her transportation for J., and he had refused to pay their agreed amount of child support. [ 17 ] On November 19, 2015, Mr. B. filed a Notice of Motion alleging that Ms.

M. had improperly taken J. from his care during his parenting time. [ 18 ] An Order was granted by the Court on November 24, 2015, recognizing that the Parties were J.’s guardians, granting Mr. B. parenting times on alternating weekends from Friday at 4:30 p.m. until Tuesday at 8:30 a.m., prohibiting J.’s relocation from Fort Nelson without consent of both guardians and the appropriate notice, requiring Mr. B. to pay $300 per month child support for J., and requiring the Parties to share day care costs equally. [ 19 ] A Notice of Intention to Relocate was filed by Ms.

M. on January 11, 2016. [ 20 ] An Application Respecting Existing Orders or Agreements was filed by Mr. B. on January 11, 2016, seeking an order

prohibiting Ms. M.’s planned relocation of J. [ 21 ] A Notice of Motion was filed by Mr. B. on January 11, 2016, seeking an order for a right to first refusal of parenting time. [ 22 ] A Notice of Motion was filed by Mr. B. on February 24, 2016, seeking an order prohibiting Ms. M.’s planned relocation of J. [ 23 ] An Affidavit of L.B. was filed by Mr. B. on February 25, 2016, in support of his application concerning J.’s relocation. Ms. B., J.’s Grandmother, opposed his relocation from Fort Nelson stating that he had an extended family in Fort Nelson able to provide support to Mr.

B. and that he was learning Dene language and culture at his day care. [ 24 ] An Affidavit of L.A.M. was filed by Ms. M. on April 7, 2016, in support of her intention to relocate J. from Fort Nelson. Ms. M(2)., J.’s Grandmother, set out a series of detailed reasons why she believed J.’s relocation to Fort St. John would benefit him from the perspective of his care, stability, health and wellbeing. [ 25 ] An Application Respecting Existing Orders or Agreements was filed by Ms. M. on April 11, 2016, seeking an order for permission to relocate J. from Fort Nelson to Fort St. John.

She filed a Notice of Motion and her Affidavit in support on the same date. [ 26 ] An Affidavit was filed by Ms. M. on August 11, 2016, noting her financial responsibility to J. by maintaining fulltime employment, her ensuring of J.’s health and wellbeing to the virtual exclusion of Mr. B., her awareness of and support of J.’s Dene culture, the consequences personally and employment wise if the relocation was refused, and her proposed parenting plan if the relocation is approved. [ 27 ] An Affidavit was filed by Mr.

B. on August 11, 2016, outlining his opposition to J.’s relocation to Fort St John pointing out that J. had lived his whole life in Fort Nelson, his extended family in Fort Nelson could provide cultural education to J. and the local day care had a Dene cultural focus. [ 28 ] He also questioned Ms. M.’s ability to care for J. based on her medical health requiring prescription medications, her alleged alcoholism, past treatment for substance abuse, and her alleged association with convicted sex offenders. He also noted that Ms.

M. had made suggestions of relocating in the past only to abort those plans at the last minute. He set out his then financial circumstances of being unemployed and the financial strain of having to travel to exercise his parenting time. [ 29 ] An Affidavit was filed by Mr. B. on August 16, 2016, reiterating his concerns and providing more details on the topics described in his August 11, 2016 Affidavit. [ 30 ] An Affidavit was filed by Ms. M. on August 17, 2016, replying to the allegations set out in Mr.

B.’s Affidavits of August 11, 2016 and August 16, 2016. [ 31 ] An Order, by consent, was granted by the Court on August 17, 2016, directing a hearing on the cross applications by the Parties, granting Mr. B. parenting time to include, but not limited to, one week per month from Friday to Friday, requiring the Parties to equally share the driving and transportation costs and that the exchange of J. occur at Buckinghorse River Lodge. [ 32 ] An Affidavit was filed by Mr. B. on November 23, 2016, describing his recent parenting time with J. and an update on his employment situation. [ 33 ] An update was filed by Ms.

M. on November 24, 2016, outlining Mr. B.’s parenting times with J. in the months of August, September, and October. She also attached an updated list of income and expenses. In her update, Ms. M. set out a number of specific reasons why she believed J.’s relocation to Fort St John would be in his best interests. She also set out her proposal for Mr. B.’s parenting time if the relocation was permitted. [ 34 ] On November 24, 2016, an Order, by consent, was granted by the Court requiring Mr. B. to pay child support of $478 per month. TRIAL EVIDENCE Ms. M. [ 35 ] Ms. M.'s evidence can be summarized as follows:

a) from the time of J.'s birth until July 2014 she was a stay-at-home mom and had practically all of the parenting responsibilities because Mr. B. was often away working and when he was at home he was very disinterested in caring for J. or attending to other household chores saying that he was too tired. In J.'s early years members of Mr. B.'s family rarely came to visit with him even though they all lived in the same community;

b) when she returned to work in July 2014 and Mr. B. was unemployed, she still got J. ready for the day and delivered him to day care. J. was in day care during that time because Mr. B. had little interest in caring for him, he said there was a possibility that he could be called out for work and she believed it would help in J.'s socialization and exposure to the Dene culture;

c) Mr. B.'s work required him to be on call almost constantly when he was employed and he was often called out on short notice and sometimes for days at a time. Mr. B.'s work was generally greatly reduced or ceased completely during spring break up and he was out of work from the spring to the fall of 2014;

d) Mr. B. had employment from November 2014 through April 2015. During that time, he worked mostly in town but was called out overnight on several occasions. In April 2015, Mr. B. began to collect Employment Insurance;

e) Mr. B.'s work has always been unpredictable concerning when he would get called out and the amount of overnight travel to camps.

When Mr. B. was working and returned in the evening he would often say he was too tired to care for J. and would retire to watch television;

f) for several months in 2015, Mr. B. saw J. infrequently saying that his then home was unsuitable. She suggested Mr. B. take J. to his mother's house for his parenting time but that was never put into place;

g) on occasions when Mr. B. has his parenting time with J. he did not always call on her to care for J. if he had to go to work which was required in the November 2015 Order. There were a few occasions during her parenting time with J. when she had to call on Mr. B. to care for him for short periods but he usually refused;

h) in August 2015, when she and J. moved from FNFN to Fort Nelson, Mr. B.'s requests for and actual usage of his parenting time on alternate weekends was sporadic. It was often not used at all or cut short by Mr. B. On several of those occasions Mr. B. said he had to work but was later observed to be with his girlfriend in Fort Nelson by her or mutual acquaintances. Mr.

B.'s parenting time usage became more regular again when he and the girlfriend started living together early 2016, but there were still occasions approximately every second month when he either didn't use his parenting time at all or curtailed it, but he never asked her for more parenting time with J. other than the scheduled periods;

i) due to constant arguments with Mr. B. in the spring of 2016, she took stress leave from Work BC in June which continued until she moved to Fort St. John. Since she moved to Fort St. John Mr. B. has never asked for more than a Friday through Sunday weekend with J.;

j) although Mr. B. says that Dene cultural activities and events are very important to him, he regularly refused to take J. to them when they lived together. Either she or Mr. B.'s mother would be the ones to take J. to those activities and events despite what Mr. B. now tells the Court. She has no objection to J. being involved in hunting so long as it is conducted safely. She and Mr. B.'s family have never been close but it was never made clear to her why that is the case;

k) she tried to have J. participate in a two mornings per week First Nations cultural program in Fort St. John but the logistics of travel between that program and the day care was overwhelming for J. There are a number of other First Nations cultural events and activities in Fort St. John in which she and J. participate. Her mother works for a First Nations support organization and has a great deal of knowledge of what events are occurring in Fort St. John;

l) it was important for her to further her education in order to improve her future employment opportunities with increased salary levels. Her classes at NLC are mostly in the mornings, four days per week, but she remains at the college during the day to continue studying. J. is in day care at NLC which is less expensive than some of the other day cares in Fort St. John and is very convenient because it is on campus;

m) her mother lives with J. and her and fully participates in his care. J. is very familiar with her mother because she lived with her, Mr. B., and J. for a lengthy period of time after J.'s birth. Her mother and J. have a very strong bond. There was a time in the past when she and her mother had a difficult relationship but that is no longer the case;

n) there are more activities and resources for families in Fort St. John than in Fort Nelson. She has J. involved in sports and other activities which she pays for without the assistance of Mr. B. These include skating, martial arts, gymnastics, swimming lessons and snowboarding. J. also has three cats, two rats and a dog;

o) J. has some speech issues which are going to be dealt with by the Child Development Center in Fort St. John. The necessary therapists are more readily available in Fort St. John than in Fort Nelson, where they only travel to the community one time per month. She placed J. on a waiting list as soon as they arrived in Fort St. John, but he has just now got to the top of that list;

p) she plays guitar in a trio and they have regular weekend performances which earn her a few hundred dollars per month. When she was in Fort Nelson and played in a band on weekends she often gave Mr. B. the chance to care for J. but he always refused;

q) due to some paperwork foul ups that she was unaware of at the time, she owed the day care at the FNFN approximately $3,000. Until that debt is cleared up it is her understanding that J. is not welcome at that day care;

r) she was in drug abuse treatment for seven months in 2010/2011. Although she does not have an alcohol abuse problem she did drink more than she should have in the months after the separation to cope with stress but only when Mr. B. had J.;

s) J. is unable to be registered as a member of the FNFN because its rules require both parents to be a member of that First Nation before their children can be registered;

t) she has never met Mr. B.'s new spouse who he was in fact seeing even before their separation;

u) it is a four hour drive from Fort Nelson to Fort St. John in good weather. The drive from Fort Nelson to the Buckinghorse Lodge is approximately 1 1/2 hours and the drive in Fort St. John to the Lodge is 2 1/2 hours;

v) there have been some instances since she moved to Fort St. John with J. that he has been unwilling to go with Mr. B. at the beginning of his parenting time but he is eventually persuaded to do so;

w) she believes Mr. B. loves J. very much but she's worried that he doesn't understand the commitment required to play a full and active role in J.’s parenting. Mr. B. [ 36 ] Mr. B.’s evidence can be summarized as follows:

a) he was not employed when J. was born because he quit his job in order to be there for J.'s birth. He was out of work for a few months after that;

b) in 2014, he had shoulder surgery and was off work for eight months. During that time, his arm was weak and he had difficulty caring for J. so he was sent to day care;

c) Ms. M. is emotional, erratic, and did not get along well with her mother. They would constantly argue when they were both living in Fort Nelson and he is concerned that that behaviour may continue now that they are back together in Fort St. John. J. has a very good relationship with Ms. M.'s mother;

d) when they resided together, Ms. M. would yell and argue with him in front of J., something he tried to avoid. Since the separation there remains tension between Ms. M. and him which continues to this day. His family members do not like Ms. M.;

e) he was aware of Ms. M.'s past substance abuse problems but she was sober while they were together. She began to drink excessively after the separation and sometimes would not inform him who was caring for J.;

f) in September 2014 through February 2016, he had regular work. After that he was unemployed but had some part-time work. In May 2015, when Ms. M. kicked him out of their home, he only had part-time work and could not afford to his own place so he moved in with a relative. That accommodation was not suitable for J. to spend much time at but he did see J. at day care;

g) at the end of September 2016, he obtained his present employment with [omitted for publication] where he is payed $25 per hour and higher rates for overtime. He is a swamper on either a picker or low bed truck. In his present position he can be called out on weekends as much as two times per month and he may be called out to overnight occasionally. His boss has told him that he will be able to mostly work in town during the times he has J.;

h) he did not miss any weekends of parenting time while Ms. M. and J. lived in Fort Nelson, but he had to shorten some of the weekends in order to go to work;

i) he has over 50 relatives in the Fort Nelson area including his mother, his grandparents, aunts, uncles and cousins. He takes J. to visit relatives every time he has parenting time with him. It is very important to him for J. to learn about his Dene heritage and culture as he grows up. When J. visits his family he is fed traditional food and is shown traditional food gathering methods;

j) the August 2016 Order gave him one week per month but he has had only one weekend per month since then either because of a lack of money for transportation or the inability to get time off work;

k) Ms. M. and his new spouse have had conflict when there is one occasion his new spouse was caring for J. Ms. M. became angry called up his new spouse and was acting in an intimidating fashion. THE LAW Family Law Act [ 37 ] The following provisions of the Family Law Act have application in this case: a) S. 37 (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.

b) S. 41 For the purposes of this Part, parental responsibilities with respect to a child are as follows: (

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

b) making decisions respecting where the child will reside; (

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

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

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

f) subject to

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

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

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

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

j) requesting and receiving from third parties health, education or other information respecting the child; (

k) subject to any applicable provincial legislation, (

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

l) exercising any other responsibilities reasonably necessary to nurture the child's development. c) S. 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. d) S. 70 (1) If the court makes an order under

section 69 [orders respecting relocation] that permits a child's relocation, the court may make any of the following orders: (

a) subject to subsection (2) of this section, if the order made under

section 69 affects an agreement or order that allocates parenting arrangements between the relocating guardian and another guardian, an order under

section 45 [orders respecting parenting arrangements] or 47 [changing, suspending or terminating orders respecting parenting arrangements] , as applicable; (

b) any order necessary to ensure that the relocating guardian complies with the terms of the order permitting relocation, including an order to do one or more of the following: (

i) give security in any form the court directs; (ii) transfer specific property to a trustee named by the court.

(2) In making an order under subsection (1), the court must seek to preserve, to a reasonable extent, parenting arrangements under the original agreement or order. Case Law [ 38 ] Counsel provided the Court with the following cases:

a) M.M. v. C.J., 2014 BCSC 6 ;

b) C.A.P. v. M.S.P., 2015 BCSC 183 ;

c) T.M.L. v. C.J.S., 2016 BCPC 119 ;

d) L.L.J. v. E.J., 2013 BCSC 1233 ; and

e) J.P. v. J.B., 2013 BCPC 168 . SUBMISSIONS Ms. M. [ 39 ] The submissions of Ms. M.’s counsel are summarized below:

a) based on the findings in M.M. v. C.J. , Mr. B.’s parenting time with J. is significant and, as such, the tests in section 69(5) apply and Ms. M. must show good faith, propose a reasonable and workable arrangement for Mr. B.’s parenting time, as well as others who play a significant role J.’s life, and demonstrate that the relocation is in J.’s best interests;

b) in relation to section 69(6), Ms. M.’s has demonstrated good faith in the following ways:

i) she took steps to obtain the necessary education to permit her to pursue a career with advancement possibilities, something unavailable to her in her former job. Such education is not available in Fort Nelson; ii) the move will enhance the quality of life for both J. and Ms. M., including future increased income arising from her educational pursuits, improved mental health, better access to specialized care, additional available social and sporting activities, and additional contact with his maternal grandmother; iii) Ms. M. provided the necessary notice of relocation to Mr.

B. within the appropriate time frame required by the FLA; iv) the only restriction to relocation was the Interim Order granted on November 24, 2015.

c) Ms. M.’s present college

schedule includes classes mostly in the mornings, Mondays through Thursdays, but she spends the rest of the day at the college studying and doing course work. J. should not spend long time away from Ms. M. at this stage of his life;

d) in assessing the provisions of section 37(2) of the FLA, the Court should consider the following:

i) J.’s physical and mental health would be better maintained by living with who has always been his primary caregiver, Ms. M.; ii) J. has a very strong and close bond with Ms. M. and her mother in Fort St. John. There was little information presented about J.’s bonds with Mr. B.’s extended family or his present spouse. There was evidence presented that there was little, if any, relationship between Mr. B.’s family and Ms. M., which Mr. B. attributed to his family not liking Ms. M. although he could not point to a legitimate reason why that would be so; iii) J. was primarily cared for by Ms.

M. both before and after the Parties separated. She was also the parent who arranged for day care, as well as arranging for and attending practically all health related appointments. Prior to separation, Mr. B.’s participation in routine

parenting was limited, in part due to his work away from home, and in part due to a general disinclination to participate. After the separation, Mr. B., on several occasions, either declined to exercise his parenting time or curtailed his parenting time for what he described as employment obligations; iv) after the move to Fort St. John, J. did go through an adjustment period but the general stability in his care has been maintained, both before and after the move, by Ms. M. There is no doubt that Mr. B. loves J. but the past history of his lack of involvement in J.’s care does not suggest the level of stability J. should expect given his young age would be achieved;

v) when comparing the two parents ability to properly exercise their parental responsibilities, Ms. M., through her years of doing so competently and lovingly, when compared to Mr. B.’s history of disengagement, has shown herself better positioned to meet J.’s needs;

e) Ms. M. believes it would be in J.’s best interests for Mr. B.’s parenting time to be;

i) alternating weekends; ii) longer periods, if it is a long weekend; iii) one week periods during Spring Break and during the summer; iv) Father’s Day;

v) additional times as agreed; vi) Mr. B. could be granted one week parenting time if he could get those weeks off to care for J.; vii) exchanges to occur at the Buckinghorse River Lodge unless otherwise agreed in advance.

f) Ms. M. agrees that she and Mr. B. should equally share all of the

Section 41 parental responsibilities. Mr. B. [ 40 ] The submissions of Mr. B.’s counsel are summarized below:

a) the provisions of

section 69 apply here, along with the best interests set out in

section 37 as described in L.L.J. v. E.J .;

b) Ms. M.’s actions in relocating J. have not demonstrated that they are in his best interests in the following areas:

i) she hasn’t demonstrated that it will improve J.’s quality of life, health or emotional wellbeing; ii) although improving Ms. M.’s education will be good for her, it does not translate into a more enriching life for J.; iii) J. only has two relatives in Fort St. John and many family members in Fort Nelson including Mr. B., his spouse, his parents and grandparents, and many aunts, uncles and cousins; iv) J.’s First Nations culture and heritage will be best ensured by spending a great deal of time in Fort Nelson and attending the Dene Zona culturally based day care;

v) Ms. M. has not made sufficient arrangements to ensure that J. attends the appropriate cultural programming available in Fort St. John; vi) despite Ms. M.’s assertions to the contrary, Fort St. John has no more to offer from a social, artistic, or sporting perspective than does Fort Nelson; vii) the move to Fort St. John had an initial adverse effect on J.’s behaviour which persists, but appears to be diminishing over time; viii) any restrictions in Mr.

B.’s care of J. overtime has been a result of his work commitments, his recovery from surgery, or the inappropriate nature of some of the places he has live since the separation. He now has a stable and appropriate home which he shares with his spouse. She is also able to provide care for J. if Mr. B. is required to be at work during his parenting time; ix) Mr. B.’s concerns regarding Ms. M.’s emotional stability, her past history and her relationship with her mother are genuine and focused on what is in J.’s best interest;

c) In the months following separation, Mr. B.’s parenting time of alternate weekends from Friday to Tuesday had to be occasionally reduced due to Mr. B.’s work commitments. Once Ms. M. moved with J. to Fort St. John, Mr. B.'s ability to exercise his parenting time was initially constricted by lack of available time and financial resources. In his new employment he now has flexibility to accommodate a more robust parenting schedule;

d) Ms. M.’s suggested parenting

schedule of alternate weekends is neither reasonable or workable because it requires frequent travel and exchanges of J., driving over a very long distance, possible adverse weather for many months of the year, and considerable cost to both the Parties in the operation of their motor vehicles;

e) Mr. B.’s parenting time proposal is both reasonable and workable and is in J.’s best interests and should be:

i) alternate two week parenting times; ii) specific parenting times to Mr. B. to coincide with various cultural activities of the FNFN throughout the year.

f) Mr. B. also proposes that the Parties equally share in J.’s day care expenses in both Fort St John and Fort Nelson;

g) Mr. B. agrees that he and Ms. M. should equally share all of the

section 41 parental responsibilities;

h) Mr. B. seeks compensation from Ms. M. for his expenses for travel in October 2015, when he had to travel to Fort St. John and stay overnight due to Ms. M.’s unreasonable behaviour. DISCUSSION [ 41 ] Based on M.M. v. C.J. , c ounsel concur that the Parties had “substantially equally parenting time” and as such section 69(5) and not section 69(4) applies. With respect, the Court disagrees with that analysis on that point both with regard to what M.M. v. C.J . stands for and the facts of this case. [ 42 ] In M.M. v.

C.J. , the parents had enjoyed an equal parenting regime for five years followed by a few months of a nine day/five day regime. It was on the overall care of the child that the Court determined, on the evidence before it, that there was a “substantially equally parenting time” regime. [ 43 ] In this case, since the separation, Mr. B.’s parenting time under the Court’s Orders has either been 3 1/2 day weekends in alternating weeks, or later, one week per month. By any measure, those schedules do not amount to “substantially equally parenting time”. In addition, Mr.

B. utilized much less than the time allotted to him under the Orders. As such, section 69(4) is the applicable provision. [ 44 ] Based on the history of J.’s care, the limited opportunities of Ms. M.’s previous employment, and her realistic educational and future employments goals her relocation from Fort Nelson to Fort St. John was made in good faith. [ 45 ] Ms. M.’s proposed parenting regime is not reasonable in the circumstances because it does not allow enough continuous parenting time to Mr. B. and it amounts to less quality parenting time than Mr.

B. and J. enjoy under the existing Order. [ 46 ] The conjunctive word “and” between section 69(4)(a)(

i) and (ii) might initially suggest that because Ms. M. hasn’t met both parts of the test her Application should fail. However, similar wording in section 69(5) was considered in the cases of M.M v. A.M ., (Jenkins, J.) and the earlier decision of L.J.R. v. S.W.R., 2013 BCSC 1344 (Betton, J.). In each of those cases, the relocating parent met one part but not both parts of the

section 69 tests of “good faith” and “proposed reasonable and workable arrangements to preserve the relationship”. [ 47 ] In both of the cases cited, the learned Justices determined that despite the wording, the Court was still bound to utilize its power to examine whether or the proposed relocation was in the best interests of the child. [ 48 ] In this case, the onus falls on Mr. B. under section 68(4)(

b) to overcome the presumption that J.’s relocation is not in his best interests. He has not succeeded in that task. In fact, had the Court concluded section 69(5) applied Ms. M. would have met the test. However, the provisions of the applicable portions of section 37(2) are still worthy of consideration. (

a) the child’s health and emotional well-being [ 49 ] There is no issue that aside from a speech impediment, J. is a healthy and happy boy. The speech issue can be better addressed in Fort St. John than Fort Nelson due to the better availability of resources. [ 50 ] There was no evidence presented to suggest J. suffers from any ongoing emotional distress aside from some hopefully transient reluctance to start parenting time with Mr. B. That reluctance can be overcome by more regular time with his father. [ 51 ] Ms. M.’s reported diminishment in her stress levels created by the distance between her and Mr.

B. may also have a beneficial effect on J. There remains, tensions between the Parties which will hopefully diminish over time and with the assistance of the Court’s conduct orders in this decision. (

c) the nature and strength of the relationships between the child and significant persons in the child’s life [ 52 ] In light of the past and present care regime for J., the most significant figures in his life are Ms. M., her mother, and Mr. B. Others such as Mr. B.’s spouse and his extended family are less significant in J.’s life right now because they have not been exposed to him frequently enough, and for long enough time periods, for those relationships to become significant from J.’s perspective. (

d) the history of the child’s care [ 53 ] The history of J.’s care demonstrates that Ms. M. has been, by far, the most constant caregiver in his life. Given the present circumstances, Ms. M.’s mother has cared for him, the next greatest portion of his life. Mr. B.’s interest in caring for J. was lacking in the early years but things appear to have improved somewhat when Mr. B. is not occupied by his work. [ 54 ] Although it was not verified by the employer given what Mr. B. has told the Court about his new employment circumstances, he should have no difficulty in arranging for plenty of time with J. during the parenting times he will be allocated going forward. (

e) the child’s need for stability, given the child’s age and stage of development [ 55 ] All children thrive on stability and that is what Ms. M. has attempted to provide throughout J.’s life. But life has disturbances that may be positive in the long run but are disturbances none the less. Such is the case with Ms. M.’s move to pursue her education to improve her employment future. Even children like J. have to adjust to what life brings. Given his age and maturity and thanks mostly to Ms. M. he has adjusted to a new living situation without any long term effects.

(

f) the ability of each person…to exercise his or her responsibilities [ 56 ] Both Ms. M. and Mr. B. appear to be able to meet J.’s basic needs of food, shelter, clothing, and most of all love. But there are some other less immediate aspects of J.’s care and upbringing that must also be considered. [ 57 ] J. is part Dene by birth and Mr. B. makes much of wanting J. to know, understand, and fully participate in that culture. So far, however, he has left the efforts to engage J. in that area to others, namely Ms.

M. and his family members. [ 58 ] He must do more to ensure J. becomes engaged in that aspect of his life. It may pose particular challenges for both Mr. B. and J. in the Fort Nelson area. On one hand he will have the opportunity to learn most aspects of Dene life and culture but on the other he may remain somewhat on the outside of that culture because he will not be able to be a member of the FNFN. It is up to Mr.

B. and his family to ensure that situation does not result in J. being considered less of a member of the community as he grows up. [ 59 ] The financial implications that will affect J.’s upbringing also must be considered. Ms. M. is taking some interruption in her income stream to seek higher education so she can have a better career for herself and long term financial stability for J. [ 60 ] Mr. B. does not seem to be adopting a similar approach.

Although he may not have either inclination or the desire to seek higher education, he must consider carefully whether a life as a labourer with its physical wear and tear on the body is the best long term strategy. He may want to consider whether there are other skills, licences, or accreditations within his present industry that may make him a more productive and valuable employee to his present or any future employer.

Such pursuits may provide not only a more secure economic future it may also permit easier geographic relocation should the need arise. [ 61 ] Taking the sections 69 and 37 factors and the case law into consideration, the evidence presented and counsels’ submissions, J. deserves and is entitled to spend more time with Mr. B. than Ms. M. proposes but less than what Mr. B. advances. J. is still young but not so young that longer periods of relying on his father’s care would be contrary to his best interests despite Ms. M.’s submissions to the contrary.

DECISION [ 62 ] The Court makes the following Orders concerning J.W.B., born [omitted for publication], (the child). [ 63 ] The Court is satisfied that B.E.M. and J.T.B. are the guardians of the child under section 39(1) of the Family Law Act. [ 64 ] Under

section 41 of the FLA, the guardians will share equally all parental responsibilities for the child. [ 65 ] B.E.M. will have the majority of the parenting time with the child. [ 66 ] J.T.B. will have parenting time with J. on the following four week

schedule commencing April 7, 2017:

a) Week 1: From Friday to the immediately following Friday at times set out below (7 days);

b) Week 3: From Thursday to the immediately following Sunday at times set out below (3 days);

c) In the event that the Week 3 weekend is a long weekend, it will be extended to the immediately following Monday;

d) Every Father’s Day weekend, but if it is not Mr. B.’s regular parenting time, he will give up his next scheduled weekend in exchange;

e) On Mother’s Day weekend, but if it is Mr. B.’s regularly scheduled parenting time, he will be given another weekend within the following four weeks, in exchange;

f) In the months of July and August of each year, Week 1 from Friday to the second subsequent Tuesday at times set out below (11 days);

g) Every Treaty Day’s weekend, but if it is not Mr. B.’s regular parenting time, he will give up his next scheduled weekend in exchange;

h) Such other times as the Parties may agree. [ 67 ] The following terms will apply to the exchange of the child:

a) it will occur Buckinghorse River Lodge unless otherwise agreed in advance in writing, which may include emails or texts;

b) if the Parties cannot agree on an exchange time, it will be 5:00 p.m.;

c) each Party will be required to remain at the exchange location for 45 minutes beyond the agreed upon or imposed exchange time if the other Party has not yet arrived to allow for travel contingencies;

d) after September 1, 2017, the Parties are at liberty to appoint a designate to carry out the exchange on their behalf. [ 68 ] Under section 69(2) of the Family Law Act, B.E.M. may relocate the residence of the child from Fort Nelson, British Columbia to Fort St John, British Columbia. [ 69 ] The Parties will (

a) put the best interests of the child before their own interests; (

b) encourage the child to have a good relationship with the other parent and speak to the child about the other parent and that parent’s partner in a positive and respectful

manner; and (

c) make a real effort to maintain polite, respectful communications with each other, refraining from any negative or hostile criticism, communication or argument in front of the child. [ 70 ] The Parties will not (

a) question the child about the other parent or time spent with the other parent beyond simple conversational questions; (

b) discuss with the child any inappropriate adult, court or legal matters; or (

c) blame, criticize or disparage the other parent to the child. [ 71 ] The Parties will encourage their respective families to refrain from any negative comments about the other parent and his or her extended family, and from discussions in front of the child concerning family issues or litigation. [ 72 ] Mr. B. will be solely responsible for any day care expenses for J. during the time J. requires day care in Fort Nelson. Mr. B. will be responsible for one third (1/3) and Ms. M. will be responsible for two thirds (2/3) of J.’s day care costs in Fort St. John until further order. [ 73 ] Mr.

B.’s Application to have Ms. M. pay compensation to him for his trip to Fort St. John in October 2015 is dismissed. ____________________________ M. J. Brecknell Regional Administrative Judge Northern Region Provincial Court of British Columbia