S. v. L. Date:, 2012 BCPC 515

Citation: S. v. L. Date: 20121219 2012 BCPC 0515 File No: 99-11867 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: T.S. APPLICANT AND: C.L. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE WINGHAM Counsel for the Applicant: F. Lowther

Counsel for the Respondent: M.D. MacKinnon Place of Hearing: Vancouver , B.C. Date of Hearing: December 19, 2012 Date of Judgment: December 19, 2012 [ 1 ] THE COURT: This is an application by T.S. for an order, in effect, varying an interim consent order made by Judge De Couto on August 10th, 2000, so some 12 years ago. That order provided that the mother and the father C.L. would share interim joint custody of the parties' child C.L.C., who I will refer to as C. throughout these reasons. C. was born on [DOB]. She is now 14 years' old. [ 2 ] Ms.

S. seeks a new interim order that she have sole custody of C., that C.'s primary residence be with her and that she be permitted to move C. to Alberta. Mr. L. opposes that application. He says it would not be in C.'s best interests to be cared for primarily by her mother. [ 3 ] The parties lived together for a period of approximately three years, and they separated approximately five months after C. was born. They separated as a result of parenting differences, according to Mr. L., and the order of Judge De Couto was subsequently made.

C. lived with the parties on an approximate equal split of time, although the exact days that she spent with each parent has changed over time. C. was only two years' old when Judge De Couto's order was made. She is now 14. [ 4 ] In March 2012 the mother moved to Calgary, Alberta. She is living with her mother in that city. She had lost her job here, and her mother had agreed to financially support her and C. C. has expressed the desire to live with her mother, but her father has concerns and believes that it is in C.'s best interests to stay with him in the Vancouver area. [ 5 ] Mr. L. is 37 years' old.

He is of Aboriginal heritage. Both he and C. hold an Aboriginal status card. He is a member of the A.C. Band. When he was a baby, he was adopted by non-Native parents and was raised by them. He has lived with them for most of his life, and he continues to live with them. He has explored his Aboriginal background, and he has involved C. with various Native groups, and he has a security company which he proudly describes as 100 percent Aboriginally owned and operated. He is clearly proud of his Aboriginal heritage, and he wants C. to be involved in her culture and heritage as well. [ 6 ] Mr.

L. expresses concerns about the mother smoking in C.'s presence as C. suffers from asthma. He described Vancouver as "ground zero" for Aboriginal rights. In Vancouver he says C.'s status card entitles her to free medical and dental care but that the mother will not take proper care of her medical and dental health. He expressed concerns about the mother getting C. to school on time. He described having to change her elementary school because C. was late or absent so many times. Mr. L. said that he was concerned that C. was either being exposed to or was using marihuana. He involved her in counselling at St.

Leonard's Society. He did not discuss his concerns about marihuana use or exposure with Ms. S., however, at least at that time. Mr. L. said that he went to every counselling session at St. Leonard's but the mother did not attend any. I note that although Mr. L. expressed concerns about the mother smoking marihuana around C., he has not prevented C. from visiting and staying with her in the past. Mr. L. also took C. to sessions with a psychologist to assist her with anxiety and tension headaches. Mr.

L. will continue to reside with his parents until next year when they plan to move to Langley. [ 7 ] The mother, Ms. S., is 35 years old. She now lives in Calgary with her four-year-old daughter and her mother. She is separated from her four-year-old daughter's father. She has extended family in Alberta including in the Calgary area. She admits that in the past she worked in what she referred to as the sex trade. She said she did so in order to provide for her daughter. Since moving to Calgary, she has found full-time employment as an office administrator/bookkeeper and earns $20 per hour.

She said that that is more than she could earn in Vancouver. She has no intention to return to Vancouver. She says that she has looked into schooling for C. should C. go to live with her in Calgary. She says that she is also supportive of C.'s involvement in her Aboriginal heritage and says that she will facilitate that involvement in Calgary. Ms. S. says that she has cut her marihuana usage to weekend use. [ 8 ] In any proceeding involving issues of guardianship, custody and access to children, the focus of the court must be on the best interest of the child.

As counsel know, s. 24 of the Family Relations Act provides: When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child's needs and circumstances: (

a) the health and emotional wellbeing of the child including any special needs for care and treatment; (

b) if appropriate, the views of the child; (

c) the love, affection and similar ties that exist between the child and other persons; (

d) education and training for the child;

(

e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights andduties adequately. [9] As this case involves the issue of whether C. should be allowed to move to Alberta to live with her mother, I must also considerthe law relating to what is often referred to as mobility. In Gordon v. Goertz (SCC), [1996] 2 SCR 27, the SupremeCourt of Canada established the test for courts to apply when the issue of mobility comes before it.

In that case, the court considered acase where in a divorce action the mother was granted custody of a young child and the father was awarded generous access. Themother planned to move to Australia to study orthodontics, and the father applied to change custody. The court established a two-parttest in cases where an application to vary an order where one party wishes to move with the child. At paragraphs 49 and 50, McLachlinJ., as she then was, set out the test. 49 The law can be summarized as follows: 1.

The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a materialchange in the circumstances affecting the child. 2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child,having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4.

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

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

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

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

d) the views of the child; (

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

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

(

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [10] And at paragraph 50: In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location mustbe weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimatequestion in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? [11] I will note that in Nunweiler v. Nunweiler 2000 BCCA 300 , [2000] B.C.J.

No. 935, (BCCA), the court stated that thefactors outlined in Gordon v. Goertz apply to initial custody applications as well as to applications to vary. [12] In this case (this was not argued) but clearly there has been a change in circumstance. A change which leaps out is that whenthe order of Judge De Couto was made, C. was two. She is now 14. Twelve years have gone by. She is now in a position where she canand she has expressed her views as to what should happen with respect to her care. [13] In respect of the factors set out in Gordon v.

Goertz, the existing custody arrangements were, until the mother moved in March,a regime of equal parenting. Since then C. has visited her mother a few times in Calgary, but she has lived primarily with her father andher paternal grandmother. There is a history, however, of shared parenting. There are no formal access arrangements, but there appearsto have been some cooperation at least until recently.

I am hopeful that there will be continued cooperation because the independentevidence in this case, that being s. 15 Views of the Child Report; C.'s affidavit, and, while it is not evidence, His Honour Judge Rideout'scomments, indicate that C. wishes that contact and will benefit from it. [14] There is a need to maximize contact between the parties and C. taking into account the distance between the two cities that theparties live in. This can be accomplished by regular access and access through technology such as telephone and Skype which we oftenhear about in this court.

I will say more about C.'s views later, but it is clear that she wishes to live with her mother in Calgary. [15] The mother moved to Calgary for economic reasons; it enabled her to get stable employment in a safe environment. There willbe some disruption to C.'s school and her community should she move to Alberta and with her relationship with her paternalgrandmother. While that disruption is not minimal, it would be a disruption that can be reduced by access and communication. [16] In relation to the s. 24 of the Family Relations Act factors, first, health and emotional wellbeing. Mr.

L. has looked after C.'shealth. He has sought out a dentist. He has enrolled her in counselling. He has obtained a referral to a psychologist. He has taken her toall of those counselling sessions, and he had arranged an appointment with a dermatologist to assist her with her acne problem. He doesnot agree, as I have indicated, that she should move. [17] C. has expressed her desire to move. The evidence suggests that she is upset that her parents cannot work this issue out andcooperate with each other.

There is evidence that she had shown signs of depression including some thoughts of suicide, although hercomment was that she would not go through with it. The litigation between her parents has clearly caused her stress. I heard evidenceabout her being brought to court. This is despite the fact that there was a Views of the Child Report that had been ordered by JudgeChen.

The father described her being curled up in the hall after the last court day. [18] What will, in my opinion, best address her health and emotional wellbeing is some finality to these proceedings and to havethese parties cooperate with each other at least as it relates to C.'s best interests. [19] Both parties expressed concerns for C.'s health and emotional wellbeing. Both the mother and the father agree that she canbenefit from therapy or counselling. Both are aware of and concerned about C.'s weight and acne issues and say that they are committedto helping her with those issues.

The mother's evidence as to her plans to have C. see a dermatologist were somewhat vague, but I acceptthat she will follow through if C. moves to Calgary to live with her. [20] In this case the Views of the Child, while not necessarily determinative, are important. There is ample independent evidence ofthose views. The Views of the Child Report is dated August 29th, 2012. At pages 2 and 3, the author, Nancy Musselin, [phonetic]stated [as read in]: C. stated that, "I keep to myself" when at her father's and she enjoys television and anime which is a Japanese animation.

She said thather relationship with her father has conflict. She perceives that her father does not believe her when she speaks of her memory and beingforgetful and health complaints and she feels blamed by her father. She spoke of an incident where she forgot to get off at her assignedbus stop as an example of her poor memory and lack of focus at times. C. said her father will not allow her any independence withfriends socially and gave an example of when he accompanied her and her friend to a movie when she understood he was dropping themoff.

She stated that she does not spend a lot of time with the few friends because of it. [21] I will just pause and note that Mr. L.'s evidence on that issue was that that occurred when she was 12 and that he no longer doesthat, at least in relation to movies. Referring back to the report. [As read in]: C. stated that she has a close relationship with her mother and that she can talk to her about anything. She said her mother had spokenabout moving to Alberta because of a better cost of living. She said she has seen her mother this summer but she finds it difficult beingapart and she would like to move to Alberta.

She said that all of her mum's family is in Calgary also. C. stated that her mum has apartner named Marlin and she has a half-sister named L. [phonetic] who she believes is about three years' old. She said that her fatherknows her choice and it affects their relationship negatively. She wants to feel good about going to live with her mum and not have her

father make her feel bad about it. C. stated, "I don't want to upset my father and my grandmother" and feels that she is breaking hearts when she speaks of her wishes. [ 22 ] And then in

summary [as read in]: C. appears to have internalized many of her feelings but expressed herself openly in the interview. She wants to be taken seriously for what she feels and be more independent. [ 23 ] On December 3rd this matter came before His Honour Judge Rideout in this court. Judge Rideout interviewed C. privately. The transcript of the proceedings when he came back into court has been obtained, and I am going to read briefly from it. At page 17 of the transcript starting at line 5: So I spoke to C. for about 15 or 20 minutes. She was very engaged with me. She had very good eye contact with me.

She was a bit nervous at first, but the ice was quickly broken. I believe we had a very good candid session together. What was discussed in

part I'm going to keep private. But I talked to her about goals, what she wants, her expectations, hopes. I assured her that both parents love her very much. She assured me that she loves both parents very much. She indicated that she would love it if the parents could sit down with her and start working together.

She used, "I would love it." Because I told -- I explained to her that the parents and her want to try to work together without bickering and that, so -- but that's what she would love is to work -- work that out. [ 24 ] At line 24: She says that there are certain things that really she can only talk to a mother about, just like a son would only talk to a father about. That's obvious. She -- I indicated to her that we may or may not need a hearing on this. She is prepared to maintain the status quo at this time through December 18th. She does want to live with mum. There's no secret there.

I did not get any indication of undue influence, any indication that she is controlling the picture, but this is something she wants. [ 25 ] There is also an affidavit filed that was sworn by C. Exhibit "A" to that affidavit is a statement that she wrote and that she in her affidavit swears to. I am just going to read briefly from that. Starting half-way down the first page of that statement [as read in]: I'd be happier in Calgary though I'd miss my friends especially my [it looks like] P.C. [phonetic].

All my friends have been supporting this [I believe it's] so far and I know they will continue to until this is over. [ 26 ] On the second page [as read in]: I feel like this is a circuit. We keep going nowhere. It almost seems today I hope to achieve something. This has had a big emotional [I'm not sure of the word, maybe] toll on me long enough. I have become deeply depressed and suicidal from this process.

It's hard to finish anything, hard to think straight when I've got this worry on my mind all day every day. [ 27 ] I am satisfied that the evidence establishes clearly that while C. loves both parents and wants to have contact with each parent, at this time she deeply wishes to live with her mother. Her reasons are clear as set out in the material that I have just read. [ 28 ] With respect to the love, affection and similar ties that exist between C. and others, the closest relationship is clearly with her parents.

She has a relationship with her paternal grandmother here and a developing relationship with her maternal grandmother and her mother's extended family in Calgary. She also has a little half-sister in Calgary. What is important in this case is maintaining the relationship between her and both her parents. [ 29 ] With respect to education and training, both parents say that they are concerned about her education. Both parents have made arrangements for her schooling in their respective cities. C. is currently enrolled and had been until December 3rd, in any event, attending E.H. High School in Vancouver.

The mother has looked into and located a high school in Calgary which is en route to her employment or minutes from her employment, as she puts it, that C. could attend, and there is a school bus that would take her to and from the school or she could go by public transit. [ 30 ] With respect to the capacity of the parties, I have some concerns about both parties being able to make decisions that are in C.'s best interests. The father does not acknowledge the importance of C.'s views. Neither does the mother. This was evident, in my view, from the mother's evidence concerning her whereabouts since December 3rd.

Despite the evidence in this matter and C.'s disclosure that she loves both parents and wants to spend time with both parents, the mother has facilitated C.'s disappearance since December 3rd, 2012. The mother's stock response "whatever C. wants" indicates that she has some difficulty in accepting that her role as a parent continues to require her to provide encouragement and guidance to the child and not simply to go along with whatever she wants.

Both parents have deficiencies in their capacity, in my view, to act in C.'s best interest. [ 31 ] Both parents despite those deficiencies have positive traits as well. They both love C. I believe that they both acknowledge the

importance of the other to C. That is evident from the sharing of the parenting for so many years. They both should continue to be involved in C.'s care and her upbringing. [ 32 ] Counsel have referred to a number of cases dealing with the importance of considering the views of teenage children. Each child is different. Some are better able to make decisions about or express views about their care which coincide with their best interest. It is clear, however, that a consideration of those views is a factor in determining what is in their best interest. C. has expressed a very clear desire to live with her mother.

She has expressed it to the s. 15 author, to Judge Rideout, and in an affidavit filed with the consent of the father at the commencement of this hearing. That desire needs to be acknowledged and given weight. I conclude that in this case it is a factor that should be given considerable weight. [ 33 ] Having weighed all of the factors in s. 24 and the factors outlined by Madam Justice McLachlin in Gordon v. Goertz , I conclude that it is in C.'s best interests to go and live with her mother in Calgary. [ 34 ] Make the following interim order: 1.

The parties will continue to share joint custody and joint guardianship. 2. Primary residence of C. will be with her mother. There will be liberal and generous access to the father which will include December 21st, 2012, to December 31st, 2012. The reason that I picked December 21st is that it is the day after tomorrow. It will give the opportunity for the mother to speak to C. and to ensure that C. is prepared to go and see her father and stay with him until December 31st. 3.

The father will also have half of all holidays from school and other access that may be agreed upon from time to time between the parties. 4. The parties will share equally the cost of C.'s transport to and from any access visits. (REASONS FOR JUDGMENT CONCLUDED)