L.K. v. M.M. Date:, 2013 BCPC 225

Citation: L.K. v. M.M. Date: 20130827 2013 BCPC 0225 File No: 9791 Registry: Rossland IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: L. K. APPLICANT AND: M. M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Applicant: S. Kurtz

Counsel for the Respondent: J. Connolly Place of Hearing: Nelson , B.C. Date of Hearing: June 26, August 20, 2013 Date of Judgment: August 27, 2013 Introduction [ 1 ] The parties, M.M. and L.K., are the parents of a four and a half year old child, J.K., who is set to start kindergarten this fall. The question this court is called upon to decide is where J.K. will go to school. It is an important question for the parties because it will determine not only where their child will go to school but also which parent she will live with most of the time.

As the parties currently share parenting time equally, the decision will have a significant impact not only on J.K. but the whole family. [ 2 ] The issue arises because this spring M.M. moved from Trail to Castlegar, British Columbia. Prior to the move, L.K. expected that J.K. would attend school in Trail where she had in fact been enrolled by M.M. Though L.K. lives in Fruitvale, he and his wife B. K. anticipated that they would continue the shared parenting arrangement with M.M. and during their parenting time would transport J.K. back and forth to her school in Trail from their home in Fruitvale.

The drive would have taken approximately thirteen minutes. [ 3 ] After her move this spring, M.M. enrolled J.K. in school in Castlegar. Though L.K. could have arranged to get J.K. to and from school in Trail from his home in Fruitvale, he cannot make similar arrangements if J.K. goes to school in Castlegar. The parties agree that L.K. who has two other children with B.K., one of whom is his natural child, cannot arrange to transport J.K. to school and back given the distance between his home and Castlegar, and his other responsibilities.

The parties agree therefore that if J.K. goes to school in Castlegar, she cannot live with L.K. and his wife and children half the time. [ 4 ] L.K. has in turn registered J.K. in school in Fruitvale. It is also agreed by the parties that if J.K. goes to school in Fruitvale, she cannot live with M.M. half the time. As M.M.’s move has caused this dilemma, the parties also agree that this case must be analyzed as a mobility case for the purpose of the Family Law Act , S.B.C. 2011, c. 25 (“ FLA ”). Background [ 5 ] J.K. was born on [DOB]. At that time, L.K. and M.M. were living together in a common law relationship.

They had met some time in 2005, lived together for a while, separated, and then reunited after which J.K. was born. [ 6 ] M.M. already had a child, a daughter whom I will refer to by the initials G.M. as I was never advised of the child’s last name, before she met L.K. G.M. was nine or ten months old when L.K. and M.M. began living together. L.K. considered G.M. to be his daughter though since separating from M.M. his contact with her has been very limited. [ 7 ] Soon after J.K. was born, L.K. went to Vancouver to attend an apprenticeship training program.

Since finishing that program and his apprenticeship he has been employed as an instrument mechanic at Teck in Trail. Both agree that L.K.’s decision to go to school so soon after J.K.’s birth strained an already fragile relationship. M.M. testified that J.K. had colic and would cry incessantly. M.M.’s mother helped her out as best she could but M.M. was struggling alone with a difficult baby. L.K. acknowledges it was difficult for M.M. but stated that he had to go to school. [ 8 ] In the end, the relationship did not survive this test and the parties separated when J.K. was about three months old.

Very shortly after their separation, L.K. began a relationship with the woman who is now his wife, B.K. When the two met, B.K. had a son who is seven months older than J.K. L.K. and B.K. now also have a daughter of their own, A.K., who is two and a half years of age. B.K. and L.K. have lived together, apart from a brief separation, since July, 2009. [ 9 ] L.K. testified that at the time of his separation from M.M. he assumed the two would share the care of J.K. equally. However, as early as June, 2009, L.K. filed an application for joint custody and guardianship and access.

At that time, there were no orders or written agreements. The parties were clearly in dispute about the amount of parenting time, as it is now known, that L.K. would exercise very early in the life of J.K. [ 10 ] Both agree that M.M. would not allow L.K. to have J.K. overnight for her first year if not more. M.M. testified that she was not comfortable with J.K. spending the night at her father’s home because J.K. spent so much time crying. She acknowledged that L.K. was unhappy with his limited access to J.K. and expressed a desire for more.

M.M. resisted L.K.’s efforts to expand his access with J.K. to include weekends. M.M. recalled that for the first year of J.K.’s life, she was seeing her dad twice a week for a few hours at a time. [ 11 ] On August 20, 2009, an interim order was made in which L.K. and M.M. were granted joint custody and guardianship of J.K.

L.K. was granted reasonable access to J.K. which access specifically included several hours during various days during the week and some modest provision for December 24th. [ 12 ] Other provisions of that order had M.M. providing L.K. with a list of foods safe for J.K. to eat, to be updated as applicable.

It was a theme in this litigation that J.K. has special dietary needs that M.M. was not confident L.K. and B.K. could manage while they in turn questioned M.M.’s sincerity in that regard, though they paid close attention to J.K.’s diet nonetheless. [ 13 ] The other salient aspect of the August 2009 order was the inclusion of a police enforcement clause. The circumstances giving rise to this clause were discussed at length in the testimony of both parties as well as the testimony of B.K. I will touch on these as they have some bearing on M.M.’s case for the primary care of J.K.

[ 14 ] Though M.M. denied L.K. overnight access with his daughter during the first year or more of her life, M.M. testified that in 2009, she agreed to L.K.’s request to have J.K. over on a Saturday night. She learned that same day that he and B.K. were at a wedding and that L.K. had left J.K. in the care of his mother at least for a few hours. [ 15 ] Both parties agree that M.M. spoke to L.K. at the wedding and expressed her anger with L.K.’s decision to leave J.K. with his mother. B.K., who met M.M. for the first time that day, recalled leaving the wedding with L.K. who was angry.

M.M. phoned the police and reported that L.K. had not returned the child as they had agreed. This I find was not the case. M.M.’s own evidence indicates she agreed L.K. could have J.K. for the night but in her own words got furious that L.K. left J.K. in the care of his mother while he attended a wedding nearby.

Nonetheless, following this incident, M.M. sought and obtained a police enforcement clause in her 2009 order which was utilized in a subsequent instance when she called police again on L.K. [ 16 ] There was some dispute in the evidence at to exactly when J.K. first began spending nights at her father’s home. L.K. testified that within weeks of the May, 2009 incident when police were called, J.K. was back staying at his house. B.K. testified that they did not get J.K. from May to August following the dispute in May after the parties went to court.

M.M. testified that J.K. was almost two years old before she spent a night at her father’s home. She conceded that there may have been one overnight visit before J.K. turned two but not more. She added that this was her decision. She felt it was not appropriate “because of where J.K. was at”. [ 17 ] M.M. testified that in addition to suffering from colic, J.K. was experiencing a lot of discomfort.

She took J.K. to a naturopath and there it was determined that J.K. had food allergies, specifically dairy and soy. [ 18 ] With this diagnosis, M.M. testified that she became quite vigilant about her daughter’s food intake. She was, she testified, concerned that L.K. and B.K. were not as vigilant. M.M. made much of an instance when J.K. was given a piece of cheese while in L.K.’s care. She was also concerned she said when she found B.K. had packed J.K. a sandwich on which was spread some mayonnaise.

This last missive led to a phone call between the two women but B.K.’s explanation that her mayonnaise did not contain any dairy made no difference. M.M. was adamant at trial that she did not feel J.K. should eat mayonnaise. On the other hand, B.K. expressed some cynicism about M.M.’s concerns given that M.M. had allowed J.K. to have a chocolate cupcake. M.M. testified that other children were getting cupcakes and she did not want to see her daughter left out.

Nonetheless to ensure that L.K. and B.K. made no mistakes, M.M. testified that she would take photos of things in grocery stores that J.K. should be eating and text them to the couple. [ 19 ] Though there is some dispute in the evidence as to exactly when J.K. began to spend nights at her father’s home, the parties concede that there was an agreement entered into some fifteen months ago to share equal parenting time. In fact, the parties have been quite flexible in their respective parenting time.

M.M. in particular testified that L.K. was quite flexible and accommodating and took J.K. when she needed time for work or out of town visits with her elder daughter, G.M. [ 20 ] As I have noted, L.K. had formed the distinct impression that the equal parenting arrangement would continue on indefinitely and was taken by surprise when M.M. advised that she had enrolled J.K. in school in Castlegar.

This came as unpleasant news to L.K. who had consistently sought equal access to his child following his separation from M.M. [ 21 ] M.M. noted several times in her testimony that while she was reluctant to let J.K. have overnight visits with her father as an infant, she felt that as J.K. got older she could spend more time with her father. She said that she entered into a shared care arrangement with L.K. because she knew that within eighteen months J.K. would be attending school.

She reasoned that that would be the best time for L.K. to spend time with J.K. because when school started things would have to change to accommodate her school. There is no evidence that M.M. ever discussed this thinking with L.K. At the same time, when the shared care arrangement had been entered into, M.M. was living in Trail and subsequently enrolled J.K. in school in Trail. It was not until she moved to Castlegar that the question of the shared parenting arrangement really came to the fore.

Though M.M. maintains L.K. would have had some difficulty getting his step son to school as well as J.K., I have no doubt L.K. intended to continue the shared parenting arrangement while J.K. was in school in Trail and I am satisfied would have done so. The Parties’ Personal Circumstances [ 22 ] While in Trail, M.M. resided in an apartment building that was, for a time, managed by her own mother. M.M.’s mother, S.D., testified that after the apartment building sold, she and her husband decided not to manage the apartment anymore and moved.

While managing the building, S.D. suggested that M.M. move into the apartment even though at the same time she knew it was small and that M.M.’s two children, G.M. and J.K. would have to share a room. S.D. was of the opinion that the apartment was not a good place for children but was also of the opinion that it was a place M.M. could afford. [ 23 ] M.M. testified that the hallways often smelled like marijuana. She decided to move. That decision was fuelled by M.M.’s meeting B.L. on a dating website in November, 2012. In or around February, 2013, she and B.L. had decided to live together.

M.M. testified that she looked at rentals in Trail, Fruitvale, Glendale, Montrose, and Castlegar. B.L. worked for a trucking company out of Castlegar so there is no question that the City was an attractive option. [ 24 ] M.M. found a newly renovated two bedroom home in a residential area in Castlegar. It is located close to a large community park, and to the school in which J.K. is registered for the fall. M.M. has also secured employment in Castlegar. In Trail, M.M. worked at a coffee shop making $10.75 per hour, plus tips. In Castlegar, she is employed as a housecleaner making $14.00 per hour.

M.M. testified that her hours are such that she will not need daycare in the fall and can take J.K. to and from school, and work while J.K. is at school. B.L. also makes a good wage so the family’s prospects are now considerably improved assuming B.L. and M.M. remain together. [ 25 ] M.M.’s mother and sisters live in the Trail area. It does not appear her move to Castlegar will affect J.K.’s relationships with those relatives to any notable degree. [ 26 ] It is the case that B.L. and M.M. have been in a relationship less than a year.

It is also worth noting that as recently as last December M.M. was contemplating a move to Calgary. M.M.’s most significant connection to Alberta is that her daughter, G.M. now lives in Red Deer, Alberta, with her natural father. M.M. testified that she decided to allow her daughter, now eight years of age, to move to Alberta because it was in her best interests. M.M. and S.D. both testified that G.M. was primarily upset by J.K.’s constant crying and

upset especially during the night such that G.M. desperately wanted to live with her own father in Red Deer. G.M. moved to Red Deer in the spring of 2012. It was, M.M. testified, around that same time that she and L.K. started sharing parenting time of J.K. equally on a week on week off basis. [ 27 ] At present then, only M.M., B.L. and J.K. would live in the residence in Castlegar full time while G.M. will visit during summer holidays and other long school breaks.

M.M. testified it is possible that G.M. will someday return to her care full time. [ 28 ] L.K. and B.K. live together in a large four bedroom, three bathroom home on the property of L.K.’s mother in Fruitvale. With them live B.K.’s son who is seven months older than J.K., their infant daughter A.K., and J.K. for two weeks out of each month. [ 29 ] L.K.’s mother, K.K., lives next door to the couple and plays an active role in the care of her grandchildren, including J.K.

Her evidence was that the three children appear to get along well. [ 30 ] At points in her evidence, M.M. suggested that J.K. had little good to say about her step brother, B.K.’s son, but at other times stated that J.K. looked up to her step brother. All appear to agree that J.K. has no difficulties with A.K., her infant sister.

It is also I think uncontroversial that B.K. and J.K. have a good relationship and that B.K., who described J.K. as the daughter she had always wanted, loves J.K. [ 31 ] B.K. is a stay at home mother while L.K. works at Teck, as noted, often putting in overtime shifts because, as he put it, he has three children to support. [ 32 ] Both L.K. and B.K. describe J.K. as sweet and helpful and absolutely easy to care for. M.M. also describes her daughter in similar glowing terms, but added, as did S.D., that J.K. can be a handful. Indeed it is conceded that G.M. went to Alberta to escape J.K.’s temperamental behaviour.

The Parties’ Positions [ 33 ] M.M. submits that her move to Castlegar was necessary and in good faith. She acknowledges that as a practical matter the result is that J.K.’s current shared care arrangement will be altered such that J.K. will not be able to live with both her parents on an equal basis. M.M. submits it is in the best interests of J.K. that she live with her and her new partner in Castlegar. M.M. submits that J.K. can see her father, B.K. and her other siblings as her school

schedule might allow. [ 34 ] L.K. questions M.M.’s decision to move to Castlegar, particularly as it seems to most benefit M.M.’s new partner, B.L. He questions the value of the move given that it has given rise to nothing significant in the way of new employment or educational opportunities. L.K. points out that the result of the move for J.K. will be that if she is enrolled in school in Castlegar, she will miss out of time with her family in Fruitvale. As L.K. has been fighting for parenting time with J.K. for virtually all of her life he is most frustrated with this latest development.

The Law [ 35 ] The parties have, as I have noted earlier in these reasons, agreed that this decision must be guided by the law concerning mobility. In the end, the question is whether J.K.’s interests are best served by attending school in Castlegar where she will live mostly with her mother, or in Fruitvale, where she will live mostly with her father. [ 36 ] The first question is which

section of the FLA applies in this case in the matter of relocation. Generally, relocation is governed by Division 6 of the Act . However, Division 6 only applies when parenting arrangements already exist. Specifically, s. 46 of the FLA will apply if there is no written agreement or order in place respecting parenting arrangements. This is an important distinction in that the courts must give some deference to pre-established arrangements made, presumably, in the best interests of the child. [ 37 ] Whichever

section applies, it is axiomatic that only a guardian may oppose the relocation of a child by another guardian. In this case, the parties concede as they must that L.K., who objects to M.M.’s move to Castlegar in these circumstances, is a guardian pursuant to s. 39(3) (

c) of the FLA . [ 38 ] As for orders or agreements, there are several orders in place in this matter. The first order, already referred to in these reasons, dated August 20, 2009, provides for limited access by L.K. to J.K. The parties agree that in practice, L.K. exercised more access to J.K. than provided for in that order and that in March, 2012, agreed to share parenting time on an equal basis. That arrangement is reflected in an order of this court dated May 6, 2013, which provides that the parties would exercise their parental responsibilities on a week on week off basis.

The order, however, expires in September, 2013, pending the outcome of this trial. [ 39 ] In my view, and this much is conceded by counsel for M.M., there was an agreement in place for shared parenting. While the May 6 th order regarding shared parenting expires this September, the parties did not thereby agree to revert to previous parenting arrangements. Rather, it is clear the purpose of the order was to preserve the status quo until the parties could litigate this issue.

Another way to view it is that M.M. gave L.K. notice as she was required to do under Division 6 of the relocation, albeit after the move was irrevocable, and the parties have ensured nothing will change in regard to that agreement until this matter is litigated. [ 40 ] The parenting agreement, as reflected in the order, is clearly one of shared parenting.

There is in my view an agreement and it is appropriate therefore to analyze this case pursuant to the provisions in Division 6 and to bear in mind that the parties had agreed at one point that it was in the best interests of J.K. that they share parenting responsibilities equally. [ 41 ] The specific provision governing this application for relocation is s. 69 of the FLA . It provides as follows: 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. [ 42 ] Because the parties have a shared parenting arrangement, it is clear that this court must apply the provisions set out in s. 69(5) of the FLA .

This court must determine whether M.M., as the relocating guardian, has proven that her relocation is in good faith, and that it is in the best interests of J.K. [ 43 ] In determining whether M.M.’s relocation is done in good faith, the court must consider and apply all relevant factors, including those set out at ss. (6). I propose now to address those factors. The Reason for the Relocation [ 44 ] In L.J.R. v. S.W.R ., 2013 BCSC 1344 , Justice Betton considered and applied many of these factors in determining whether a relocation was made in good faith.

At para. 73 of these reasons, Justice Betton set out the following rationale concerning the reason for relocation that I bear in mind in this case: The reasons for the proposed relocation have both a subjective and objective dimension. Subjectively, it is easy to imagine examples where the reasons may not be indicative of good faith -- for example, where a guardian is found to be making a move to frustrate another guardian's involvement with the child. Objectively, I find that the court can consider the reasons for the move based on the facts before it.

The objective reasonableness or lack thereof of the reasons for a move can weigh in favour of or against the subjective good faith of the relocating guardian. An unreasonable move suggests the relocating guardian is not acting in good faith. [ 45 ] On the face of it, I accept that M.M. was considering moving out of her apartment in Trail as early as the fall of 2012 because it was not an ideal place for a child to live.

I have no reason to reject the evidence of M.M. and S.D. that the apartment was becoming run down, and I do not discount M.M.’s trepidation about raising her daughter in an environment in which she might be subject to the consumption if not the trade of illegal drugs such as marijuana. [ 46 ] M.M.’s musing in the winter of 2012 about moving to Calgary further supports the notion that she was contemplating moving months before she did relocate to Castlegar.

Certainly, though a move from the apartment was inevitable the fact M.M. was considering it many months before it occurred indicates it was not emergent. [ 47 ] M.M.’s move was, in my view, hastened and enhanced by her decision to live with B.L. Among other things, given her evidence of her income, it allowed her to consider rental accommodations well above her own income level. I find also that at least part of the reason M.M. chose to live in Castlegar was because B.L. worked there and the location was convenient as far as his commute was concerned.

There is no question that M.M. found suitable accommodations in Castlegar and that her home is an improvement on her apartment in Trail.

[ 48 ] I find that M.M. chose to move to Castlegar for practical reasons but that she could have just as easily chosen to move to Fruitvale, Glendale, Montrose or even another location in Trail. The residence in Castlegar fit her budget, met her needs, and suited B.L. Otherwise there was nothing particularly significant about Castlegar. It was accommodation found quickly after the couple decided to move in with one another.

Had M.M. taken more time, she may well have found other suitable accommodation that would not have resulted in this litigation. [ 49 ] I do not find bad faith reasons for this move but at the same time I do not accept that it was done entirely in good faith with the best interests of J.K. foremost in mind. Is the Relocation likely to enhance the life of J.K. or M.M. [ 50 ] At para. 73 of L.J.R. v. S.W.R ., Justice Betton made the following observations regarding this factor: This portion of the analysis of good faith is more objective.

For example, a proposed relocation which is objectively unlikely to enhance the general quality of life of the child directs a court toward the inference that the relocating guardian did not propose the relocation in good faith. [ 51 ] Justice Betton noted also that the significant geographic separation in that case would almost certainly adversely affect the child’s relationship with her extended family such that her quality of life was not improved by the move. [ 52 ] In this case, I find nothing about M.M.’s relocation to Castlegar that is likely to enhance J.K.’s life except for the improved housing itself.

This of course has to be balanced against what J.K. will lose by the move if she is to go to school in Castlegar. She will miss out on what she currently enjoys which is equal time with her father, her stepmother, her siblings and extended family in a large comfortable home in Fruitvale. [ 53 ] As for M.M., her life has improved in the sense that she can make $14.00 per hour as a house cleaner instead of $10.75 per hour at the coffee shop, plus whatever she would have made in tips. Her

schedule is more flexible but overall the move makes no appreciable economic or educational significant difference in M.M.’s life. Was Notice of the Relocation Given [ 54 ] Again to quote from Justice Betton’s reasons at para. 73 of L.J.R. v. S.W.R . , this consideration is a good indicator of good faith. As Justice Betton stated, “a relocating guardian who gives notice is apparently endorsing the objectives of the legislation, which include efforts to minimize applications in court.

In addition, and in the context of relocation, advance notice allows everyone affected an opportunity to address their concerns in a timely and effective way.” It follows that a failure to give notice as envisioned by s. 69 would or could be indicative of bad faith. [ 55 ] Here, counsel for M.M. submitted that M.M. gave notice of her intention to relocate in March but as the issue is where J.K. will go to school, M.M. has more than met the 60 day requirement under the FLA . [ 56 ] I find that M.M. advised L.K. by telephone that she was moving to Castlegar and that J.K. was going to school in Castlegar sometime in mid to late March of this year.

Before this, both L.K. and B.K. assumed J.K. would go to school in Trail and that they would take her to school and pick her up from school, a thirteen minute commute from their home, during their parenting time. [ 57 ] M.M.’s notice was a fait accompli . By the time notice was given, M.M. had already rented her home in Castlegar and unilaterally decided to enrol J.K. in school there despite having advised L.K. in February that J.K. was enrolled in school in Trail. [ 58 ] M.M. allowed for no discussion of her plans, particularly around the schooling of J.K.

While L.K. was able to get this matter before the courts, M.M. had already moved. If the spirit of the new legislation is to encourage resolution outside of court, I find that M.M.’s method did not comport with that. Once she had moved and enrolled J.K. in school in Castlegar, this litigation was inevitable. It is not necessarily an indication of bad faith, but nor is it a sign of good faith.

Any Restrictions in the Order [ 59 ] There are no restrictions in the agreement or court orders that would have precluded this move, except that it does in practice preclude L.K. from exercising equal parenting time. [ 60 ] There is one other factor that I take into account in addition to those set out above and that is the stability or lack thereof in M.M.’s life at present. First, M.M.’s relationship with B.L. is less than a year in age. B.L. testified in this case and warrants no criticism.

Nonetheless, having known M.M. for less than eight months at the time of trial, and less than four months when they moved in with one another, there is a lingering uncertainty over the future of their domestic relationship. If it does not succeed, it is questionable whether M.M. could even remain in Castlegar in her present residence if at all. Moreover, M.M. was musing about living in Alberta less than a year ago. By way of contrast, L.K. and his family are considerably more settled. [ 61 ] Overall, I do not credit M.M. with having made this move entirely in good faith.

Her reasons for moving are understandable from a certain practical perspective but she did not at any time in my view consider the impact of her move on L.K.’s parenting time and J.K.’s best interests. [ 62 ] The next question is whether this move is nonetheless in J.K.’s best interests. Those factors are set out in s. 37(2) of the FLA and they are as follows:

(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. [ 63 ] Not all of these factors will apply in every case, nor are they exhaustive. [ 64 ] However, of the factors, there is no doubt that this court must consider the factors set out as subparagraphs (a),(c),(d),(

e) and (f). Throughout the trial there were some allusions to violent exchanges between L.K. and M.M. and as such I am also compelled to consider subparagraphs (

g) and (h). As I will explain below, I have no concerns that any family violence issues have any bearing on the question where J.K. goes to school and as a consequence resides during the school week. J.K.’s health and emotional well being [ 65 ] As I have noted earlier in these reasons, I heard a great deal of evidence concerning J.K.’s dietary needs and allergies. The thrust of M.M.’s evidence appears to be that she has concerns L.K. and B.K. are not entirely vigilant about meeting those special needs.

This evidence must be considered alongside the fact that M.M. agreed over fifteen months ago to a shared parenting arrangement. That renders many of her concerns about L.K and B.K.’s ability to parent slightly suspect. [ 66 ] In any event, I am convinced that L.K. and B.K. in particular, do pay close attention to J.K.’s dietary needs.

They do not necessarily agree with the diagnosis communicated to them by M.M. but they nonetheless abide by M.M.’s concerns, though they find them somewhat dogmatic and stifling. [ 67 ] The evidence concerning J.K.’s emotional health differs slightly in that M.M. experiences J.K. as being somewhat difficult, while L.K. and B.K. find J.K. consistently pleasant and helpful. Counsel for M.M. submits this evidence suggests that L.K. and B.K. are either misleading the court or themselves.

I see no basis on which I could make that finding. [ 68 ] I find on the evidence that J.K. is well cared for in the home of her father and that she is happy there. I find that she has a good relationship with her siblings there. I base this on the evidence of J.K., B.K., and K.K., and on the evidence of M.M. as well. [ 69 ] I am similarly satisfied that J.K. is happy in the home of her mother and B.L. The evidence indicates there was an issue between J.K. and G.M., who has since moved. However, M.M. testified that since G.M. moved to Alberta, she and J.K. seem to get along better when G.M. visits.

The Nature and Strength of J.K.’s Relationship with Significant Persons [ 70 ] This factor has been addressed in part above. [ 71 ] Although J.K. spent most of the first two years of her life in the care of M.M. with the result that the two must have formed a strong bond, I find that J.K. does have a bond with L.K. and B.K. and her stepbrother and infant sister. J.K. also appears to have a bond with L.K.’s extended family and with M.M.’s extended family. J.K.’s bonds with her extended family members are unlikely to be affected whether she goes to school in Castlegar or Trail.

Her relationship with her siblings and one or other of the parent will however be affected to a great degree. The History of J.K.’s Care [ 72 ] Again, I have already addressed this factor in these reasons but it must be noted that while J.K. did reside with her mother for most of her first two years, no fault can be attributed to L.K. I have found that L.K. made every effort to gain meaningful access to J.K. from the time of his separation from M.M.

M.M. was frank in advising the court that she decided L.K. should not have overnight or extended access to his own daughter because J.K. suffered from colic and was a difficult baby. [ 73 ] L.K.’s efforts to obtain access were frustrated by his own conduct though I place little weight on this. It is the case that in May, 2009, an argument between L.K. and M.M. regarding L.K.’s allowing his mother to watch J.K. for a few hours while he attended a wedding with B.K. resulted in M.M. calling police. I agree with counsel for L.K. that this was entirely unnecessary on M.M.’s part.

I do not accept her evidence that she was terrified L.K. would not return J.K. There was, to that point, no evidence L.K. had ever made such a threat. L.K. was at that time living in Trail at the home he presently resides in. Nonetheless, as a result of that incident M.M. obtained a

police enforcement clause in an order dated August 20, 2009, and I accept L.K.’s evidence that after that he was a little afraid to push things. J.K.’s Need for Stability [ 74 ] As a child with J.K.’s history entering kindergarten, it cannot be in doubt that J.K.’s need for stability would be great. I am convinced that on balance, L.K. can provide J.K. with a much more stable home environment at present than is offered by M.M. The Ability of Each Guardian to Exercise their Responsibilities [ 75 ] I find that both parties are equally capable of exercising their parental responsibilities.

Impact of Family Violence on J.K.’s security [ 76 ] M.M. made numerous allegations regarding domestic violence on the part of L.K. both before and after J.K. was born. [ 77 ] M.M. testified that in 2007 L.K. “trashed her house” and drove away drunk. She stated that she called police, not because of the damage to her house for which she admitted he was never charged, but because he was driving under the influence. [ 78 ] The allegation that L.K. “trashed” M.M.’s house in 2007 was never put to L.K. though he took the stand before M.M. gave her evidence.

What counsel for M.M. did put to L.K. was that he left the house drunk and drove and M.M. called the police. L.K. agreed to this and agreed it was stupid. That was the first time M.M. called police on L.K. On this evidence, I am not prepared to find that L.K. trashed M.M.’s home in 2007 particularly since M.M. did not seem to have reported that to police.

Common sense dictates that if L.K. did trash her home that M.M. would have reported it. [ 79 ] M.M. called police a second time on L.K. in May, 2009 when she learned L.K. had left J.K. in the care of his mother for a few hours while he and B.K. attended a nearby wedding. L.K. testified that he got a call from M.M. while he was at the wedding in which she stated that she was coming to pick J.K. up even though she had agreed L.K. could have his daughter for the evening.

L.K. testified that he said she could not and he and B.K. promptly left the wedding and went back to his mother’s home where M.M. had already phoned the police. [ 80 ] I have already noted I found M.M.’s evidence that she was terrified L.K. would not return J.K. to be unbelievable if not an overreaction.

M.M. seemed to agree with that point as she conceded in her evidence that “looking back it didn’t need to go to that level.” [ 81 ] M.M. sought the assistance of police a third time in July 2011 when she says B.K. called her allegedly while she was cowering in the basement of her home with her children and J.K., and asked her to come pick up J.K. because L.K. was upstairs damaging furniture. M.M. testified that she drove to L.K.’s home and there was met by L.K. holding lawn furniture over his head. She threatened to call the RCMP and L.K. told her to get off his property.

She then called the RCMP telling them she wanted her child back. Oddly, given what M.M. was describing as allegedly having occurred, she was told by the RCMP to get her court order which they wanted to see before they would apprehend J.K. for her. She testified that when police read the August 2009 order with the police enforcement clause, they released J.K. to her.

It follows that J.K. could not have been in the care of L.K. that day pursuant to the strict terms of the August 2009 order and must have, as he testified, been there by agreement of M.M. [ 82 ] Both L.K. and B.K. testified that on that day, M.M. and L.K. had argued over the phone concerning J.K. B.K. denies calling M.M. from the basement or saying that L.K. was upstairs damaging the home. L.K. testified that M.M. threatened on the phone to come get J.K. and he was adamant that she would not.

He does not deny blocking her entrance to the driveway as he sat in a lawn chair. [ 83 ] I find M.M.’s version of events on this day to be unbelievable. It does not seem possible that if B.K. had been cowering in her basement as M.M. testified while L.K. was damaging the house above, that the RCMP would do nothing but ask M.M. to get her court order before apprehending J.K. I find the evidence of L.K. and B.K. on this point to be more believable because it accords with the common experience. I find it more likely that M.M. and L.K. argued and M.M. determined to come and take J.K. back despite their agreement.

It follows that M.M. used her court order to get J.K. back also despite her agreement with L.K. [ 84 ] Based on these findings, I am not satisfied that there is any pattern of family violence that would in any way affect L.K.’s ability to parent or care for J.K.

Conclusion [ 85 ] The onus is on M.M. as the relocating guardian in this case to prove on balance that her move was made in good faith and that it is in the best interests of J.K. [ 86 ] I have already found that M.M.’s move while not necessarily made in bad faith cannot be entirely characterized as a good faith move, particularly given that she must have expected it would upset the equal parenting

schedule she had agree upon. [ 87 ] The fact the parties agreed on an equal parenting

schedule is, I find, some evidence that both agreed it was in the best interests of J.K. that she spend equal time in the company of both families. Their relative proximity to one another before M.M. moved to Castlegar would have ensured that J.K. could have enjoyed her time with both families easily. [ 88 ] M.M.’s decision to relocate to Castlegar has upset that balance. The move has done little on its face to enhance J.K.’s quality of life overall, or M.M.’s to any great degree.

The upset however is much greater. [ 89 ] In terms of the factors that go to J.K.’s best interests, I am not satisfied that M.M. has discharged her onus to show that the move is in the child’s best interests. J.K.’s high need for stability, her significant bond with her father, stepmother and siblings, as well as L.K.’s mother will be adversely affected by the move.

[ 90 ] On balance, given the harm to J.K.’s best interests occasioned by this move, relative to the value to her of the move, I find it is not in her best interest. [ 91 ] As the ultimate question I have been asked to decide is where J.K. will go to school this year given M.M.’s decision to relocate, and given my findings above, it follows that the order must be that J.K. will go to school in Fruitvale. As such, unless the parties otherwise agree, J.K. will reside with L.K. during the school week. ____________________ L.J. Mrozinski