F.G. v. C.M., 2022 BCPC 69

Citation: F.G. v. C.M. 2022 BCPC 69 Date: 20220421 File No: 6386 Registry: Golden IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: F.G. APPLICANT AND: C.M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.D. SKILNICK Counsel for the Applicant: T. Spettigue Counsel for the Respondent: T. Hinman Place of Hearing: Golden , B.C. Dates of Hearing: April 5, 6 and 7, 2022 Date of Judgment: April 21, 2022

Background [ 1 ] The Applicant F.G. and the Respondent C.M. are the mother and father of two daughters whose names and birthdates are: L.M., born [omitted for publication]; and A.M., born [omitted for publication]. [ 2 ] On September 1, 2021, the Applicant brought an application for an order providing her with the parental responsibilities for the children and for permission for her to change the residence of the children from Golden, British Columbia, to Victoria, British Columbia, a distance of approximately 800 kilometres if driven and which requires a ferry ride from the mainland of British Columbia to Vancouver Island.

Google Maps estimates driving time to be nearly 11 hours, exclusive of the wait for the ferry. [ 3 ] The Respondent filed a reply on September 10, 2021, opposing the order sought by the Applicant and asking for increased parenting time with the children. [ 4 ] The Applicant is 34 years of age and the Respondent is 44. These parties were never married and have never lived together. They dated for approximately two years before the birth of their older child and the relationship did not end amicably.

Despite this, they did see each other sporadically and resumed intimacy such that they became parents of their second child. [ 5 ] According to the Applicant, this couple met in late 2011 or early 2012 and soon began a romantic dating relationship. They had talked about living together at some point, but that never occurred. In 2014, the Applicant became pregnant with their first child and according to the Applicant, the Respondent appeared shocked when she broke the news to him. She says the Respondent started to spend less time with her.

The Respondent agrees that the relationship was essentially at an end at that point, but says that it was because he found it very stressful to be around the Applicant. He describes her as being very manipulative. [ 6 ] The Applicant testified that after their first child was born, the Respondent showed little interest in spending time with the child. She says that he made excuses why he could not do so, blaming his anxiety and depression as the reasons for not spending more time with the child.

The Respondent says that he did not spend more time with the child because the Applicant would not let him. [ 7 ] The Applicant was working in a chain supermarket store and had taken a maternity leave when her first child was born. At the end of that leave she returned to working 32 hours per week and the Respondent began exercising regular parenting time with the child every Saturday. The Applicant says that she wanted the Respondent to have the child on Sundays as well, but the Respondent told her that this was too much for him.

She also says that if the Respondent was unable to exercise his parenting time, he would pay for the cost of a sitter. [ 8 ] In 2016, the Applicant became pregnant with their second child. Biological explanations aside, neither party explained how this happened since both claim that they wanted nothing to do with one another at the time, but in spite of this, nature took its course. The Respondent would only say that the second pregnancy occurred because the Applicant “is a manipulator”, failing to appreciate that he had some

part in the child’s arrival. [ 9 ] The Applicant never told the Respondent about the birth of the second child until three days after the child was born in March of 2017. She says that she did this because the Respondent told her that he was ill. He denies this and says that he learned about the child’s birth through a local barista and when he found out, he contacted the Applicant to ask why she had not told him.

The Applicant testified that the first time the Respondent saw the child was nine days after the child was born, at a chance meeting at a local grocery store. [ 10 ] The Applicant once again went on maternity leave following the birth of her second child, for a year, and during that time the Respondent continued to exercise his Saturday parenting time with the older child but not with the younger one.

The Respondent says that this was because he was not allowed to have parenting time with that child, while the Applicant suggests that he was not interested in doing so. [ 11 ] When the Applicant returned to work, the Respondent began exercising parenting time with both children every Saturday and this was later increased to overnight parenting time.

The Applicant recalls that this happened sometime around December of 2018. [ 12 ] Both of the parties alluded to a strange incident in which a social worker from the Ministry of Children and Family Development (the “Ministry”) asked the Respondent to look after the children overnight. The Ministry records of this incident were not provided by either counsel and the explanations that the parties gave do not make sense. The Applicant says that a social worker attended to her residence but she would not answer the door.

When RCMP came to assist the social worker in entry to the Applicant’s home, the Applicant says that the social worker had to take the children because she had not answered the door. Both parties agree that the social worker directed the Respondent to return the children to the Applicant the next day and this was done.

There is likely more to the story of this incident than the parties let on, but it is unclear from the testimony of the parties precisely what happened and why the children were removed from the Applicant’s home overnight. [ 13 ] The Respondent works as an oilfield tax consultant for a company that his mother owns. He works from home and says that his job requires him to be near his computer and phone in order to serve his clients. He testified that in 2019, the oilfield industry took a downturn that adversely affected his business.

He was laid off from his employment and his financial position was such that he was required to give up his vehicle. The Respondent says that he had been paying child support voluntarily in the sum of $600 per month up to that point. The Applicant disagrees, but says that she is not making any claim for retroactive child support.

The Respondent says that after he was laid off, he was unable to continue paying child support, but did pay the Applicant’s cell phone bills. [ 14 ] When the pandemic began in March of 2020, the Applicant says that her sitter was no longer able to provide care for the children and that the Respondent would only visit the children at her house. The Applicant says that she suggested that the Respondent look after the children at the times her caregiver had been providing care, but she says that he refused to do so.

[ 15 ] On March 1, 2021, the Applicant was evicted from the home that she and the children were living in. The Respondent says that this was because the children were living in a filthy home, but the Applicant says that this was because the landlord wanted to sell the home. As a result, the Applicant took the children and went to live with her parents in Salmon Arm for three weeks. She says that she did so with the knowledge and approval of the Respondent. After this, she returned to Golden, but did not have a place to live.

According to the Respondent, he was told by a social worker that the children were to live with him until the Applicant found a place to live. [ 16 ] The children stayed with the Respondent for two weeks during the spring break of 2021. The Applicant said that at the end of this time, the Respondent told her that she was not allowed to have the children back, but he did permit her to take the children to school. It is unclear what his authority was for wanting to keep the children from the Applicant.

At this point it does not appear that any court orders were in place and no independent evidence was tendered on behalf of either party as to what action or direction the Ministry of Children and Family Development was taking or giving, if any. [ 17 ] What happened next is a matter of perspective. The Applicant says that she decided to take the children to Victoria where she was able to find a home for the children. She says that the Respondent was not helping her and that she had been unable to find new accommodation in Golden.

She took the children to Victoria where the plan was for them to live in the apartment of a man that she was now in a relationship with. She felt that as the primary caregiver of the children, she was responsible for finding a home for the children and this was her only option, especially since the Respondent was not helping to support the children. The Respondent describes this as the Applicant “kidnapping the kids”. [ 18 ] The Applicant agrees that she left with the children for Victoria without telling the Respondent and that she turned off her phone so that the Respondent could not call her.

She moved herself and the children into the home of a man named G.A., who she describes as her boyfriend and fiancé. She had known him since 2005 and they struck up a relationship sometime around 2017. According to the Applicant, the two of them became engaged to be married about 18 months ago. She says that they talked about moving to Victoria as early as 2019 because G.A. has no ties to Golden and because the Respondent had been talking about moving to Alberta.

The Respondent denies that he had ever talked about planning to move there. [ 19 ] On April 6, 2021, the Applicant filed an application with this Court asking for guardianship and child support. It does not appear that this was served on the Respondent and he testified that he learned of it when he went to file his own application on April 13, 2021, asking for an order that he be appointed as the sole guardian of the children and that the Applicant return the children to Golden.

On April 19, 2021, the Honourable Judge Doerksen of this Court made an order that the children were to be returned to Golden by April 23, 2021. Both parties participated remotely at the hearing before Judge Doerksen. Judge Doerksen did not order that the children be returned to the Respondent, but only that they be returned to Golden. [ 20 ] The Applicant and the children did return to Golden and since then the three of them have been living at a local women’s shelter.

The Applicant testified that in the almost one year since they all returned here, she has not found alternate accommodation because of a lack of availability of rental accommodation.

The Respondent agrees that the Applicant has not found any place for her and the children, but feels it is because she is an undesirable tenant that no local landlord wants to deal with. [ 21 ] A family case conference was held in Golden on May 4, 2021, before the Honourable Judge Sheard of this Court and at that time the parties entered into a consent order which designated both parties as guardians of the children and directed that they share parental responsibilities for the children.

The Respondent was ordered to have parenting time with the children every weekend from Saturday at 11:00 a.m. to Sunday at 7:00 p.m. and the Applicant was tasked with picking up and dropping off the children for the Respondent’s parenting time. The Respondent was also ordered to pay monthly child support of $400 to the Applicant. [ 22 ] The Applicant says that the Respondent has been consistent in exercising his parenting time since the making of Judge Sheard’s order. The Applicant says that she offered the Respondent additional parenting time during this past summer, but that he refused her offer.

He denies this. [ 23 ] The children are attending a type of schooling similar to home schooling, called Distributed Learning. L.M. is in grade 2, while A.M. will begin school next fall. The Applicant believes that L.M. has a learning disability known as Erlen Syndrome, but she bases this off of her own diagnosis and not that of any medical or psychological professional. She testified as to other health issues that she believes the children to have, but no medical evidence was tendered in support of these theories and the Respondent disputes them.

When asked in cross-examination to name the children’s doctors, the Applicant was unable to do so. [ 24 ] The Respondent also testified about a number of health issues that he believes the children to have, also without any independent bases for these opinions. He was concerned that neither the Applicant nor the children have been vaccinated for COVID-19, something that she admits to be true.

He complains about not being informed about any medical issues regarding the children, overlooking the fact that there is a court order in place naming him as the one of the children’s guardians and giving him a share of the children’s parental responsibilities, all of which means that he is entitled to ask for the information himself. [ 25 ] The children are involved in a number of extra-curricular activities such as swimming, pottery and arts and crafts, but these are activities that would be available to them in both Golden and Victoria and are not determinative of any issues regarding the preferred residence of the children. [ 26 ] The Applicant testified that if she was allowed to have the children move to Victoria, the three of them would live in G.A.’s residence, a two-bedroom basement suite with a shared yard.

She is confident that she would be able to transfer her employment with the same company that she works for, with the only adverse consequence being a loss of seniority in matters of shift assignments. [ 27 ] In cross-examination, the Applicant said that she and G.A. have their wedding plans on hold, pending the outcome of this application. He has come to visit her in Golden approximately six times but has not been to Golden since August of 2020.

They have spent somewhere between 30 and 40 days together in person in the past five years. [ 28 ] G.A. did not testify at trial and neither counsel made anything of this in their submissions. G.A. did provide an affidavit for the court file on March 28, 2022, in which he affirmed that he and the Applicant are engaged to be married, that they have been in a long-

distance relationship since 2017, that he has invited the Applicant and the children to reside with him in a two-bedroom basement suite that he rents and has lived in for six years in Victoria and that he has known the children since 2017. He affirms that he calls the children twice a week by phone or video and has done so for approximately five years. He has held steady employment for the past seven-and-a- half years as a sheet metal worker and his employment would provide medical benefits to the Applicant and the children after they have lived together for six months.

He states in the affidavit, “It is my desire for the Applicant and the Children to live permanently with me” at his residence. [ 29 ] The Applicant testified in cross-examination that she has tried to involve the Respondent in the children’s schooling, but claims that he is uninterested so she has given up. The Respondent claims that he does not get any of the children’s records, but when asked why he does not simply ask the school for them himself, he testified that he is not allowed to.

In cross-examination, he was reminded that for almost a year he has had a court order which names him as a guardian and gives him equal parenting responsibilities. The Respondent testified that he was unaware of this, but this is difficult to believe given that the record of proceedings shows that he was present at the case conference when the order was made, he consented to the order and he was represented by good counsel. [ 30 ] The Respondent lives in a trailer that he owns in nearby Nicholson, BC. He lives with a female roommate in what he describes as a “casual, non-sexual relationship”.

He suffers from an anxiety disorder, as well as from an arthritic condition that has been in remission for several years. He treats his anxiety with cognitive behavioural therapy and counselling and says that spending time with the children eases his anxiety. He says that he has a good relationship with the children.

When he was asked in cross-examination what the children’s full names were, he said that he did not know and said this was because he has never seen their birth certificates. [ 31 ] The Respondent accuses the Applicant of trying to alienate the children’s affections for him and worries that if the children are permitted to move to Victoria, he will not see them. He says that the Applicant interferes with his video calls with the children now and anticipates that this will only get worse if she is living further away.

He is also worried that if the Applicant is unsuccessful in her relationship and becomes homeless once again, he will have no way of knowing that this is occurring. [ 32 ] One of the difficulties in this matter is the disparity in the evidence of the parties and the absence of any corroborating evidence such as reports from the Ministry of Children and Family Development or testimony from their social workers, medical reports, or evidence from caregivers or significant others. Several things are clear and are undisputed by the parties’ own evidence.

The Applicant has done the bulk of the childcare responsibilities for these children since birth and has done so with little financial support from the Respondent. The parties do not have substantially equal parenting time; the children have been primarily in the care of the Applicant. The parties have considerable mistrust and dislike of one another. The Applicant attempted to avoid or ignore the requirements of the Family Law Act in an earlier attempt to relocate the children without the knowledge or approval of the Respondent.

Analysis [ 33 ] Counsel for the parties have fairly and correctly agreed on the law which applies to this matter.

Section 69 of the Family Law Act defines a "relocating guardian" as “a guardian who plans to relocate a child” and gives this Court the authority, in subsection (2) to “make an order permitting or prohibiting the relocation of a child by the relocating guardian.” [ 34 ] Where, as in this case, an application is made for an order under

section 69 and the relocating guardian and another guardian do not have substantially equal parenting time with the child, then the relocating guardian (the Applicant in this case) must satisfy the court of the following things: 1. That the proposed relocation is made in good faith; and 2.

That the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, as well as with any persons who are entitled to contact with the child, and any other persons who have a significant role in the child's life. [ 35 ] In deciding if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following: 1. The reasons for the proposed relocation; 2.

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; 3. Whether notice of relocation was given under

section 66 of the Family Law Act ; 4. Any restrictions on relocation contained in a written agreement or an order. [ 36 ] If the court is satisfied that the relocation proposed is made in good faith and that the relocating guardian has proposed reasonable and workable arrangements to preserve the relationships referred to in section 69(4)(a), then the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise. [ 37 ] In determining what is in the best interests of a child, the court must consider the factors listed in

section 37 of the Family Law Act. Those are: (

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. 1. Is the proposed relocation made in good faith? [ 38 ] The Applicant gives her reasons for wanting to relocate the children to Victoria as being the availability of stable housing and the presence of a partner who is more willing to act as a caregiver to the children than the Respondent has been. Counsel for the Respondent disputes this and says that the reasons for wanting to move are speculative and are for the benefit of the Applicant but not the children.

Counsel also disputes whether or not the Applicant has been sincere in her efforts to find alternate accommodation for the children. [ 39 ] The evidence is clear that the residence proposed for the children in Victoria is preferable to the status quo of living in Golden. The Applicant will soon be unable to live in the shelter that she and the children are presently in and even if she was permitted to continue living there, it is not a viable long-term solution for these children. The option in Victoria presented by the Applicant is corroborated to a degree by the affidavit of G.A.

While it would have been preferable if he had testified in person and had been available for cross-examination, the Respondent did not take issue with the evidence of the Applicant as far as what was available in Victoria. The argument instead was whether the relationship with Mr. Atkinson would last.

But even if that was the case, it would not put the Applicant in any worse position than she is in now and would constitute a change in circumstances that would open the door for a return of the children to Golden. [ 40 ] One of the difficulties in assessing matters is the conflict in the evidence of the parties and more specifically, in the Applicant’s assertion that the Respondent has been largely uninvolved in the lives of the children, while he asserts that this has not been because of disinterest, but because of obstruction and alienation on the part of the Applicant. [ 41 ] The Respondent’s position seems in conflict with several pieces of undisputed evidence.

His obtaining a court order as guardian and for shared parental responsibilities at the case conference is difficult to reconcile with his claim that he was unaware of this authority. This is also true of his failing to use that authority to become more involved in the lives of the children by using it to obtain information from the children’s school and doctors. It is also troubling that the Respondent argues for more parenting time, but burdens the Applicant with having to deliver the children to and from their visits with him, on top of her other responsibilities as their primary caregiver.

It is also concerning that the Respondent is doing little to alleviate the Applicant’s burden of having the bulk of the financial cost of raising these children. Despite having professional skills, his most recent financial statement claims an income below minimum wage and that he would only consent to a child support order below the Guideline amount for that income. These actions are not those of someone wishing to put their children’s interests ahead of their own.

They may also explain some of the resentment that the Applicant has against the Respondent. [ 42 ] As for the assertion that the Applicant has been insincere in her efforts to find better accommodation, the evidence does not support this. If the Respondent had presented evidence of alternative rental properties being available, the case might be otherwise, but that was not done. The Applicant did not present specific evidence of what rental options were available to her and why she could not afford them.

On the evidence presented, it is difficult to accept or disprove this proposition. [ 43 ] The proposed relocation in this case is likely to enhance the general quality of life for these children as well as of the Applicant. It will provide them with a better option as far as their residence and also with additional in-home childcare through G.A. If the Respondent was in a position to provide more meaningful support financially and if he was being more proactive in exercising his responsibilities (as opposed to his “rights”) as a guardian, things may be otherwise.

In the absence of such support from the Respondent, the Applicant is acting in good faith in looking for a better situation for the children. [ 44 ] Counsel do not take issue with the suggestion that proper notice was given under

section 66 of the Family Law Act and the order made by Judge Sheard does not contain any restrictions on relocation, nor are any such restrictions contained in any other order or agreement. [ 45 ] Counsel for the Respondent points to the unilateral decision of the Applicant to take the children to Victoria in the spring of 2021 without notice to the Respondent as evidence of malice or bad faith on the part of the Applicant.

There is no doubt that the Applicant would have been wiser to be up front about her actions; however, it should also be noted that at the time there was no order in place designating the Respondent as the guardian of these children. The parties had never lived together prior to their birth, so the Respondent is not presumed to have been a guardian to these children under

section 39 of the Family Law Act. The Applicant was still obliged to give the Respondent notice in his role as a person having contact with the children. However, the fact that she subsequently consented to the Applicant being named as a guardian and having shared parental responsibilities evidences a willingness on her part for him to be given a greater legal role in the lives of these children. It is indicative of good faith on her part rather than bad. [ 46 ] Based on a consideration of the factors set out in section 69(6) of the Family Law Act, I find the proposed relocation to have been made in good faith.

2. Has the Applicant proposed reasonable and workable arrangements to preserve the relationship between the children and theRespondent? [47] According to the Applicant’s counsel, two proposals have been made to the Respondent regarding his parenting time if theApplicant is entitled to relocate the children to Victoria. In the more recent and more generous of the two, it has been proposed that if themove is allowed, the Respondent should be ordered to have parenting time with the children for four full weeks each year.

This wouldconsist of one full week around each child’s birthday and two consecutive weeks during the children’s summer vacation. In addition, theApplicant would accept responsibility for transporting the children to and from the parenting time, which would occur in Golden.Additionally, the Respondent would also be allowed “generous electronic parenting time” as well as “generous parenting time”whenever the Respondent chose to visit the children in Victoria. [48] Counsel for the Respondent sees this as an unreasonable arrangement.

Counsel argues that this would limit the children’s in-person time with their father to 28 days. Currently he spends every weekend with the children, amounting to over 52 days and portions of104 days, depending on the method of calculation. Counsel also argues that if the Respondent’s parenting time was restricted to thisdegree, the children would become emotionally distant from their father. The Respondent is also concerned that the Applicant is seekingto diminish his role in the lives of the children and is alienating them from him. [49] The BC Court of Appeal, in its decision in Williamson v.

Williamson, 2016 BCCA 87 , 2016 B.C.C.A. 87, requires thatallegations of parental alienation be supported by expert opinion evidence, in part because there is not unanimous opinion on the subjectand also, likely as an impediment to prevent litigants from making false claims of this nature without supporting expert evidence in thosecases when there are other valid reasons for children not wanting to have contact with parents.

This remains binding law despite the factthat expert evidence of this nature can be very expensive, meaning that only those wealthy enough to afford such evidence can raise theissue. (A fuller discussion of this problem can be found in N.J. v.

D.J., 2021 BCPC 321 , 2021 B.C.P.C. 321, at paragraphs 111to 117.) No such evidence of alienation exists here and at this point this appears to be speculative, given that the Respondent has not beendenied any of his parenting time as ordered by Judge Sheard. [50] Counsel for the Applicant states that the law does not require that the amount of parenting time following relocation must matchor exceed what it was before relocation. In support of this proposition, he relies on the BC Supreme Court decision of Burseth v Burseth,2017 BCSC 2076 , 2017 B.C.S.C. 2076.

In that case, Justice Marchand (now a member of the British Columbia Court ofAppeal) wrote: [45] The legislation only asks whether the relocating guardian has proposed reasonable and workable arrangements to “preserve” thechildren’s relationship with the other guardian and other important people in the children’s lives.

This does not mean that thearrangements must ensure that the relationship between the children and the other guardian remains the same. [51] That being said, Justice Marchand went on to state that the proposal must still “go far enough to preserve the children’s closerelationship with their father.” He went on to conclude that it was unrealistic to think that the father in that case would be able to exercisehis parenting time with the children at the times proposed, given the distances involved.

He also noted that “it would also be hard for theparties to afford the long and frequent exchanges”, a consideration which also applies to these parents. Justice Marchand resolved theissue by looking for “middle ground” and ordering significantly more parenting time than was proposed. [52] Although there is no expert evidence of alienation in this case, the Respondent’s concern about the Applicant wanting tominimize his role in the children’s lives appears to have an air of reality. In submission on behalf of the Applicant, her counsel referred tothe Respondent as a “bit player” in the lives of the children.

When it was suggested that this characterization seemed harsh and unfair,counsel doubled down on the assertion. [53] In assessing the fairness of counsel’s remark and on its potential for being the basis of a likelihood that the Applicant will use themove to diminish the importance of the Respondent in the children’s lives, there are conflicting considerations. On the one hand, theRespondent has been diligent about exercising the parenting time ordered by Judge Sheard, though this takes place with assistance fromthe Applicant in driving the children to and from the visits.

It is also significant that the Respondent accepted responsibility for lookingafter the children when the Ministry of Children and Family Development asked him to do so and that he also cared for them during theirspring break after the Applicant had been evicted. [54] On the other hand, the Respondent does not appear to have been very proactive in utilizing his role as the children’s guardian. Hecomplains about not getting report cards or medical reports, but has not done the legwork to get these for himself as is his entitlement asa guardian.

His explanation that he did not even know he was a guardian until this hearing sounds disingenuous. It is also troubling thathe has not been more diligent in providing for the support of his children by seeking out more gainful employment. Even looking forminimum wage employment would mean an increase in the earnings he reported on his last financial statement.

It seems unfair that inaddition to doing the bulk of the childcare work, the Applicant has had to deliver the children so that the Respondent can have hisparenting time and that she has had to raise these children with little financial help from the man who helped to bring them into theworld. [55] Taking into account all of these factors, I conclude that the approach taken by Justice Marchand in Burseth is a reasonable one toapply in these circumstances as well.

The proposal for reasonable and workable arrangements to preserve the relationship between theRespondent and the children can be met by additional parenting time above and beyond what has been proposed by the Applicant’scounsel. 3. Conclusion on onus [56] For the reasons previously stated, I have concluded that the Applicant has proposed to relocate the children in good faith and thatthere are reasonable and workable arrangements which can be ordered that will preserve the children’s relationship with the Respondentas required under section 69(4)(

b) of the Family Law Act. The next step is to consider the proposed relocation to be in the children’s bestinterests unless the Respondent satisfies me otherwise.

4. Is the proposed relocation in the best interests of the children? [ 57 ] These children appear to be healthy and happy despite the obvious dislike that their parents have towards one another. It appears that the parents take measures to prevent disparagement of one another in front of the children, though not in front of everyone else. Both parents offer their own diagnoses of health problems that these children have, but their opinions do not match and such conclusions are better left to be made by healthcare professionals.

The Applicant claims to have demonstrated diligence in attending to the children’s health needs, though it is concerning that in cross-examination she was unable to give the name of the children’s physician. The evidence does show that the Applicant has taken steps to have the children seen by healthcare professionals and by others, while the Respondent has not chosen to exercise any authority as a guardian to date. [ 58 ] The children in this case are still quite young and their views have not been canvassed in any independent manner.

As such, little or no weight can be placed on this factor in assessing their best interests. [ 59 ] The two most important adult relationships in the lives of these children are with their parents. It appears that they are also beginning to develop a relationship with Mr. Atkinson, with whom they have regular contact through remote means. They do not appear to have bonded significantly with any of their grandparents. The Applicant admitted that she is not close with her parents.

The Respondent testified that his mother had visits with the children two to three times per year before the pandemic, but this testimony was contradicted by a text message that he sent in 2019 in which he said that his oldest child had only met his mother twice. He was unable to explain this discrepancy. [ 60 ] The history of the children’s care is such that the Applicant has been responsible for the vast majority of it. As I often like to say, she has done “the bulk of the heavy lifting” when it comes to the raising of these children.

The parties disagree as to whether this is due to obstruction on the part of the Applicant or disinterest on the part of the Respondent. It seems more likely however that after working nearly full time, the Applicant would have welcomed any help she could get from the Respondent in looking after the children. What is clear however is that the Respondent has not been very assertive in seeking a greater role in the care of these children. He did not seek any court orders prior to their removal to Victoria. He has almost certainly paid less child support to the Applicant than he was lawfully obliged to.

He was given guardianship and parenting responsibilities at a family settlement conference that he attended, but claimed not to be aware of this and has not sought to use those abilities. He has utilized the parenting time that he was given by Judge Sheard, but this has come with the burden being placed on the Applicant to bring the children to him and pick them up after the visits, even though the Respondent has a driver’s license.

However, he did agree to look after the children during the brief period that he was asked to do so by the Ministry of Children and Family Development and during the spring break of 2021 following the Applicant’s eviction. [ 61 ] The Respondent has complained about the state of cleanliness in the Applicant’s home, but no supporting evidence was tendered in support of this other than the Respondent’s assertion and the Applicant’s denial. Little evidence has been provided about the state of the Respondent’s home. [ 62 ] The children’s need for stability seems better served in a more permanent residence.

Housing has been a problem since the Applicant’s eviction last year. Having the children remain living in the women’s shelter is unfair both to the children and to others awaiting the use of that resource. The Applicant has now proposed a solution with the relocation to Victoria. It does seem strange that no other options for housing appear to exist within Golden, but neither party has tendered any evidence as to the true state of the rental market in that community other than their own opinions.

It does seem unlikely however that the Applicant would keep the children residing in the shelter for that long if she had other options. The option of having the children live with the Respondent does not seem viable because he would still need others to transport the children to school and other appointments and because he says that he can barely support himself. This does not appear to be a more stable option compared to the Victoria residence. [ 63 ] Both parents appear capable of short-term care of the children, but the Applicant has shown a greater ability to provide for their long-term care.

Conversely, while the children have lived in Golden, the Respondent has not shown any initiative in exercising the parental responsibilities he was given by Judge Sheard. It appears to be in the children’s best interests for the Applicant to continue to be responsible for the majority of their long-term care. [ 64 ] The children have been fortunate in being raised in an absence of family violence in their lives.

While the Applicant and Respondent harbour an intense dislike for one another and a mistrust of one another, neither of their counsel have suggested that family violence is an issue in this case. [ 65 ] Finally, in terms of cooperation between the guardians, there have been concerns regarding this, given the nature of the parties’ mutual dislike. The Applicant’s use of self-help in taking the children to Victoria without the Respondent’s consent is also concerning, as well as her perception of the Respondent as a “bit player” in the children’s lives.

On the other hand, the Applicant promptly followed the court order to return the children and has gone above and beyond the call of duty in bringing the children to the Respondent so that he can exercise his parenting time.

Her willingness to consent to an order that she continue to be responsible for bringing the children to the Respondent for his parenting-time visits even if the relocation is allowed also demonstrates a large measure of goodwill on her part. [ 66 ] On a consideration of all of these factors that must be taken into account in determining what is in the best interests of these children, I find that the Respondent has not met the onus of showing that the proposed relocation of these children is contrary to their best interests. I find the relocation to be in the children’s best interests.

It allows for continuity in the care that the children have known, it improves their quality of life in providing them a more stable home and in providing their primary caregiver with a partner who is able to provide for them in ways that the Respondent has been unable to. Conclusion [ 67 ] Applications of this nature are always difficult because of how great an impact they have on the children who are affected by them. This was explained by Master Keighley of the BC Supreme Court in his reasons for judgment in L.L.J. v.

E.J. , 2013 BCSC 1233 , where he wrote as follows: [18] For good reason, the prospect of a relocation application invokes something akin to dread in some members of the court. Almost

inevitably, someone’s heart is broken no matter what the outcome of the application. If the party seeking to relocate is denied permission, plans are shelved, opportunities are lost and the overall welfare of the family, beyond considerations strictly concerned with the best interests of the child, are compromised.

If the application is allowed, the party left behind struggles to maintain a relationship with the child often at considerable distance and expense, frequently in circumstances of modest means. . . . [ 68 ] When children are born, the two parents who brought those children into the world are expected to share the responsibilities of raising and caring for those children together as much as circumstances reasonably allow for.

If it turns out, as it has in this case, that only one of the parents has had to shoulder the bulk of that burden (or do most of the “heavy lifting”), deference to that parent is shown out of respect for the sacrifices which he or she has had to make, unless it is contrary to a child’s best interests to do so.

The paramount consideration is always the best interests of the children, but it is often difficult to see how a child’s best interests can be improved by making things more difficult for an already overburdened primary caregiver. [ 69 ] In this case, it is important for the children to maintain their relationship with the Respondent, but it also important for him to do more to share in the responsibilities of their care.

He can accomplish this in several ways: by looking for employment that will provide them with greater support; by becoming responsible for bringing himself to his parenting-time visits rather than adding this to the Applicant’s responsibilities; and by allowing the children the opportunity to live in more secure circumstances. Much of the narrative in his evidence was in portraying himself as a victim of the Applicant’s capriciousness, rather than in offering ways that he could show more responsibility as a parent.

For example, rather than accusing the Applicant of not trying hard enough to find a better home for herself and the children, he might have scoured the local rental market and presented viable options for where she and the children might live. [ 70 ] The Applicant will be permitted to relocate with the children, but the Respondent will be given the opportunity for more parenting time than what the Applicant has offered. However, it will be up to him to demonstrate more responsibility by becoming less reliant on other people to facilitate his time with the children and become more responsible himself.

It is not in the best interests of the children to add even more on the Applicant’s plate when there are things that he should be doing for himself. He has said, with words, that his children are important to him and he wants a greater relationship with them. He will now have the opportunity to demonstrate that by his actions. [ 71 ] For the foregoing reasons, the following order is now made: Upon the court being advised that the name and birthdate of each child is as follows: L.M., born [omitted for publication]; A.M., born [omitted for publication]; 1.

The court is satisfied that F.G. and C.M. are the guardians of the children under section 39(1) of the Family Law Act . 2. Pursuant to s. 40(3)(

a) of the Family Law Act, F.G. will solely have all of the parental responsibilities for the children as set out in s. 41 of the Family Law Act , except as otherwise set out in this Order. 3. C.M. shall have the right to request and receive from third parties, health, education, or other information respecting the children. 4. The children shall reside primarily with F.G. C.M. shall have parenting time with the children as follows: (

a) For a period of two consecutive weeks (14 days) during the children’s school spring break; (

b) For a period of three consecutive weeks (21 days) during the children’s summer school vacation, at a time to be agreed upon between the parties, or failing such agreement, beginning on the Saturday of the August long weekend; (

c) For an additional week to either be the week which includes L.M.’s birthday (omitted for publication), or the first week of the children’s Christmas school vacation, to be selected at the option of the party who will be transporting the child to the visit. 5. For the first year that this Order is in force, F.G. shall be responsible for transporting the children to and from the parenting-time visits under this Order.

Thereafter, the parties shall share responsibility for transporting the children to and from parenting-time visits, with C.M. being responsible for pickup of the children and F.G. being responsible for return of the children. 6. C.M. shall be permitted to telephone the children or to communicate with them by email, text message, or by video (including by way of FaceTime, Skype, Zoom, MS Teams or other similar means) at all reasonable times and for a reasonable duration. 7.

C.M. shall have parenting time with the children at such other times as agreed between the parties, provided that when he is in Victoria, British Columbia, he shall be entitled to reasonable parenting time with the children. 8. Pursuant to section 69(2) of the Family Law Act, F.G. shall be permitted to relocate the residence of the children from Golden, British Columbia, to Victoria, British Columbia. 9. C.M. is found to be a resident of British Columbia and is found to have a Guideline annual income of $27,000. 10.

C.M. shall pay to F.G. the sum of $427 per month for the support of the children, commencing on April 16, 2022, and continuing on the 16th day of each and every month thereafter, for as long as the children are eligible for support under the Family Law Act or until further court order. 11. For as long as the children or either of them are eligible to receive child support, C.M. shall provide to F.G.: (

a) copies of his income tax return for the previous year, including all attachments, not later than May 15 each year; and (

b) copies of any Notice of Assessment or Reassessment provided by the Canada Revenue Agency, within seven days of receipt.

_____________________________ K.D. Skilnick Provincial Court Judge