A.P.C. v. J.L.R., 2003 BCSC 468

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: A.P.C. v. J.L.R. 2003 BCSC 468 Date: 20030327 Docket: E030271 Registry: Vancouver Between: A.P.C. Plaintiff And J.L.R. Defendant Before: The Honourable Madam Justice Baker Reasons for Judgment (In Chambers) Counsel for the Plaintiff Lee M. Sheddy Counsel for the Defendant Phyllis M. Kenney Date and Place of Trial/Hearing: March 5, 2003 Vancouver, B.C. [ 1 ] Mr. A.P.C. and Ms. J.L.R. are the parents of eight-year-old S.C..

Under the terms of a separation agreement entered into on September 21, 2000, the parties share joint custody and guardianship of S.C., with Ms. J.L.R.’s home to be S.C.’s primary residence. The separation agreement provides for S.C. to spend specified periods of time with Mr. A.P.C. on a weekly basis, and during school vacations, with additional visits to be agreed between the parties. [ 2 ] Ms. J.L.R. and her present spouse wish to move to Kamloops, British Columbia. Mr. A.P.C. objects to S.C. being relocated out of the Lower Mainland. Mr. A.P.C. seeks an order that Ms.

J.L.R. be restrained from moving S.C. to Kamloops, and that his home become S.C.’s primary residence. [ 3 ] The parties agree that the proposed move is a material change in circumstances warranting a review by the court of the arrangements made by the parties for S.C.’s residence. There is no dispute that the matter is suitable for disposition by

summary trial. The issue to be decided is what residency arrangements are in S.C.’s best interests. I heard the detailed submissions of counsel for the parties on March 5, 2003. At the end of the hearing I concluded that it was not in S.C.’s best interests to move to Kamloops. I ordered that he remain primarily resident at his mother’s home if she remains in the Lower Mainland, but that if she moves to Kamloops, there be a change of primary residence to Mr. A.P.C.’s home. I told the parties that I would provide written Reasons for my decision as soon as possible, and do so now. FACTS [ 4 ] Mr. A.P.C. and Ms.

J.L.R., who was J.W. at that time, began living together in March 1992. Mr. A.P.C. is a renovation contractor. Until her resignation in December 2002, Ms. J.L.R. was a bank manager. [ 5 ] Mr. A.P.C. has a daughter from a previous relationship, N., who is now 15. At the time Mr. A.P.C. and Ms. J.L.R. began cohabiting, N. was residing primarily with her mother, Mr. A.P.C.’s former spouse. However, N. visited the home shared by Mr. A.P.C. and Ms. J.L.R.. [ 6 ] S.C. was born on […], 1994. Ms. J.L.R. and Mr. A.P.C. were living in Port Coquitlam at that time, in a house owned by Mr.

A.P.C.’s mother. Ms. J.L.R. was on maternity leave for six months after S.C.’s birth, and after her return to work, S.C. was cared for during the day by Ms. J.L.R.’s half-sister, I.W., who lived in the home with the parties and S.C.. This child care arrangement continued for more than four years. Mr. A.P.C.’s mother, who had lived independently in separate accommodation in Vancouver, moved into the home with the parties sometime prior to their separation. Ms. J.L.R. assisted Mr. A.P.C. in caring for his mother. [ 7 ] In December 1998, the parties decided to separate. It was a relatively amicable separation. Mr.

A.P.C. moved out of the home temporarily, leaving Ms. J.L.R. and S.C. in the house, with Mr. A.P.C.’s mother. Eventually Ms. J.L.R. purchased a townhouse and she and S.C. moved into the townhouse. Mr. A.P.C. moved back into the house with his mother. He continues to reside there. [ 8 ] On September 21, 2000 the parties entered into a separation agreement. They agreed to share joint custody and guardianship of S.C., with his principal residence to be with Ms. J.L.R.. In the agreement, they detailed the obligations of joint guardianship, including the following: 8. b.

Both parties will have the obligation to advise the other party of any matters of any significant nature affecting the child. c.

Both parties will have the obligation to discuss with the other any significant decisions which have to be made concerning the Child regarding his health (except emergency decisions), education, social environment or religious instruction and the other party will have the obligation to discuss these issues and each party will have the obligation to try to reach agreement with respect to these major issues. [ 9 ] The separation agreement includes a clause requiring the parties to mediate disputes before going to court. Mr. A.P.C. did not invoke the mediation clause before bringing this application.

The defendant complained about his failure to do so, but did not seek an order that the parties be required to go to mediation before being heard in this court, no doubt because of the urgency of the matter. [ 10 ] The separation agreement does not contain a clause restricting either parent’s mobility. However, there is no dispute that when the parties entered into the agreement, they expected that they and S.C. would continue to reside in the Lower Mainland. This is implicit in the access arrangements specified in the agreement, which provide for S.C. to be with Mr.

A.P.C. every Wednesday from 4:00 p.m. to 9:00 p.m. and part or all of every weekend. In addition, Mr. A.P.C. says that Ms. J.L.R. reassured him more than once that she had no intention of moving out of the Lower Mainland. [ 11 ] The arrangements between the parties in relation to S.C. appear to have worked very well until the last year. By mutual consent, Mr. A.P.C. and Ms. J.L.R. altered the original arrangements for the time to be spent by S.C. in Mr. A.P.C.’s home. S.C. has been going to his father’s home every week from Thursday evening until Saturday evening.

He spends part of each school vacation with his father, and one or two weeks each summer vacation. Summer access is complicated by the fact that as a renovation contractor, summer is Mr. A.P.C.’s busiest time. [ 12 ] Mr. A.P.C. began living with his current partner, J.F., in April 2001. In October 2001, Mr. A.P.C.’s daughter, N., who was 13 at the time, moved from her mother’s home in Prince George to live with Mr. A.P.C. and Ms. J.F.. Mr. A.P.C., Ms. J.F., N., and S.C., when he is with Mr. A.P.C., still live in the four-bedroom home that Mr. A.P.C. and Ms. J.L.R. occupied when they were together.

The C. family pet, the dog V., has been with the family for 9 years. [ 13 ] In July 2000, Ms. J.L.R. met her present husband, R.R., and they were married on July 29, 2001. Mr. R.R. has worked for the Insurance Corporation of British Columbia for 13 years, the last six as a heavy equipment appraiser. He works out of the Lake City Claim Centre in Burnaby. [ 14 ] Ms. J.L.R. was the manager of a branch of Scotiabank until she took maternity leave in November 2001, prior to the birth of her second child, M., born on […], 2002. Ms.

J.L.R. was scheduled to return to work on January 22, 2003, but notified her employer on December 19, 2002 that she was resigning her employment. [ 15 ] Until this month, Mr. and Ms. J.L.R., S.C. and M., and the R.s’ 11-year-old dog, occupied a home in Coquitlam, which they purchased in April 2001. The home is in a good location, close to schools and a recreation centre. Ms. J.L.R. described in her affidavit the extensive renovations done to the home and the landscaping of the yard. She said in her affidavit that she and Mr.

R.R. thought, “... we would live there for the next twenty years”, and that, “Our intentions were not to sell within any time soon.” [ 16 ] There is no dispute that both Mr. A.P.C. and Ms. J.L.R. are loving and capable parents. Their agreement for joint custody reflects this. [ 17 ] Mr. A.P.C.’s new partner, Ms. J.F., has a good relationship with S.C. and there is no suggestion that she is not caring and competent. She is an experienced parent, having raised a son of her own from a previous relationship, who is now 20. He lives and works in Alberta. Ms.

J.F. does not work outside the home and is a full-time homemaker and caregiver for N., and for S.C., when he is in Mr. A.P.C.’s care. [ 18 ] There is no evidence that Mr. R.R. had any experience caring for children before he began sharing a home with Ms. J.L.R. and S.C.. However, he has become an involved and caring step-parent for S.C., and an attentive parent to the new infant, M.. Ms. J.L.R. is happy with the relationship that has developed between S.C. and Mr. R.R.. [ 19 ] Following their separation in December 1998, and until the last few months, Mr. A.P.C. and Ms.

J.L.R. appear to have done an admirable job of co-operating with each other in the best interests of S.C.. They didn’t necessarily agree about all matters, but S.C. has clearly benefited from the efforts they have made to compromise and work things out, and from close and consistent contact with both

parents. By all reports he is a well-adjusted, healthy, energetic, child, sensitive to the feelings of others, and anxious to please the adults in his life. Despite having been enrolled in several different schools over the past three years, he is doing well in school. His current school is close to the R.s’ home and only ten minutes by car from Mr. A.P.C.’s home. [ 20 ] N. has also been doing well in school since she came to live with Mr. A.P.C. and Ms. J.F.. S.C. and N. get along very well. They do crafts together, play “dress up” and computer games. They also ski together. [ 21 ] Mr.

A.P.C. is assistant coach of S.C.’s lacrosse team, and attends almost all of his hockey and lacrosse games, practices and club fundraisers. Mr. A.P.C. is an active skier, who volunteers for ski patrol duties one weekend each month during the ski season, and he often takes S.C. skiing on weekends in the winter. They go sailing and swimming in the summer. [ 22 ] Ms. J.L.R. has supported and promoted S.C.’s involvement in sports, acting as “team mother” and regularly attending games and practices. She and Mr.

R.R. enrolled S.C. in swimming lessons and two sets of skating lessons, as well as floor hockey lessons. [ 23 ] Mr. R.R. has played hockey in recreational leagues for many years. Until last November, he played hockey three to four times a week, playing regularly on two teams, and occasionally with a third. He now coaches the hockey team that S.C. plays on. He and Ms. J.L.R. go to most of S.C.’s hockey and lacrosse games and practices, even on the days that S.C. is staying with his father and Ms. J.F..

While this is in some respects admirable, it has led to some difficulties for S.C.. [ 24 ] For example, after one of S.C.’s Saturday morning hockey games, on a weekend he was spending with his father, he told Ms. J.L.R. and Mr. R.R. that he wanted to go home with them after the game. Ms. J.L.R. deposed that this has happened more than once in the past and that when it has happened, she has told S.C. to go with his father. [ 25 ] However, Mr.

R.R. deposed that when this occurred recently, instead of encouraging S.C. to go home with his father for the remainder of the scheduled visit, as, in my view, they ought to have done, the R.s allowed the choice to be left to S.C.. They also left it to S.C. to discuss the matter with his father. Mr. A.P.C. reluctantly agreed to cut short his time with S.C. that day. After leaving with the R.s, S.C. was upset and in tears. [ 26 ] Although Mr.

R.R. described this event in his affidavit as evidence of the good communication between himself and S.C., he doesn’t appear to have understood how placing a child in a conflicted situation is not in the child’s best interests. [ 27 ] It is clear, however, that on some occasions, S.C. has also asked to extend his stays at his father’s home, and on those occasions, Mr. A.P.C. has also left it to S.C. to phone his mother to request permission.

Sometimes permission is given, sometimes not. [ 28 ] Some allowance must be made, of course, for the fact that the parties are in conflict over the R.s’ proposed move to Kamloops and are bound, in light of that conflict, to attempt to emphasize the opposing parties’ shortcomings and their own strengths. Unfortunately, Mr. R.R.’s affidavit creates the decided impression that he sees himself as being in competition with Mr. A.P.C. for S.C.’s love and regard. Despite his inexperience as a parent, he considers himself a superior “father figure” for S.C.. Not unnaturally, Mr.

A.P.C. has responded negatively to what he perceives to be a campaign by the R.s to push him out of a central role in his son’s life. [ 29 ] The affidavits indicate that the parties would benefit from some counselling to clarify roles and to improve communication, and I recommended this to them at the conclusion of the hearing on March 5. One apparent misunderstanding is that the R.s regard their constant attendance at S.C.’s activities, even when he is in his father’s care, as responsible. They interpret the fact that Mr.

A.P.C. does not often call S.C. when he is in their home, and does not attend school events during those times unless invited by them, as disinterest on his part. Mr. A.P.C. regards himself as respectful of the privacy of the R.s and, I believe, is quietly resentful of the fact that the R.s insist on always being present at events when S.C. is in Mr. A.P.C.’s care. Mr. A.P.C. does not seem to be aware that his lack of initiative is interpreted by the R.s as a lack of interest in S.C.. [ 30 ] As she had with S.C.’s birth, Ms. J.L.R. had a difficult pregnancy with M..

When pregnant with S.C., she was encouraged to remain in bed for the last six weeks of the pregnancy. During her pregnancy with M., she again experienced problems and was again restricted to bed rest for nearly three months. The delivery was difficult. [ 31 ] Following M.’s birth, in the early spring of 2002, Mr. and Ms. J.L.R. began discussing plans for the future, including the possibility that one or both would work part-time, or that one partner would work full-time and the other remain at home full-time. They also discussed a possible move out of the Lower Mainland and, in particular, a move to Kamloops.

They consulted realtors, and discussed the potential move with friends. Ultimately they decided that Mr. R.R. should continue to be employed full-time and that Ms. J.L.R. would quit her job and remain at home full-time. They believed that the loss of Ms. J.L.R.’s nearly $60,000 income would have less impact on their financial situation if they moved out of the Lower Mainland. Eventually they decided that they would move to Kamloops. Mr. R.R.’s plan was to continue to work out of the Burnaby office of ICBC, and commute back and forth between the Lower Mainland and Kamloops as necessary.

Because his job already involves travel, he did not perceive this as creating any difficulty. [ 32 ] Although the R.s discussed these plans with friends and family, and apparently also with S.C., nothing was said to Mr. A.P.C. until long after the R.s had made their decision to move. S.C. did make a comment to Mr. A.P.C. sometime in the summer of 2002 about the R.s looking for property in Kamloops, but Mr. A.P.C. assumed he meant vacation property. [ 33 ] In fact, although Ms. J.L.R. saw Mr. A.P.C. nearly every week in 2002, it was not until November 23, 2002 that Ms. J.L.R. told Mr.

A.P.C. of her plan to move, with S.C., to Kamloops. [ 34 ] It would not be accurate to say that Ms. J.L.R. “discussed” with Mr. A.P.C. about the proposed move, despite her obligation to do so. In her affidavit, Ms. J.L.R. deposed that she “notified” Mr. A.P.C. and Ms. J.F. that, “...we were putting our house on the market in contemplation of moving to Kamloops”. This information was not shared at a meeting set up for the purpose. Rather the notification occurred when Ms. J.L.R. saw Mr. A.P.C. at one of S.C.’s hockey games. [ 35 ] The R.s take the position that Mr. A.P.C. consented to the proposed move. Ms.

J.L.R. described Mr. A.P.C.’s reaction in this way:

While we assumed our house would sell, there are no guarantees. I actually said that to the Plaintiff – that is – we didn’t know what would happen and he said “no, it’s going to sell” and put his hands in the air in a gesture of affirmation of the future and said “as long as I have reasonable access”. I took that as consent. [ 36 ] Mr. A.P.C. recalls this event differently. He denies having said “as long as I have reasonable access”. He says that she told him that she was giving him lots of notice so he could do “whatever you feel that you have to do”. [ 37 ] Five days after she notified Mr.

A.P.C. of the intended move, and with no further discussion with Mr. A.P.C., the R.s listed their Coquitlam home for sale. They accepted an offer on December 9, and removed the subject clauses on December 15. On December 17, Ms. J.L.R. called Mr. A.P.C. to tell him the house had sold. On December 19 she sent him an e-mail that she had written earlier, but apparently hadn’t sent, outlining her reasons for the move and asking Mr.

A.P.C. to make a proposal for access arrangements following the move. [ 38 ] On December 23, the R.s made an offer on a house in Kamloops and closed the deal to purchase the home on January 9. They arranged to take possession on March 7 and to move to Kamloops on March 23. [ 39 ] Mr. A.P.C. did not, initially, tell Ms. J.L.R. that he objected to the proposed move, and it is exceedingly unfortunate that he did not do so. I do not agree, however, that he is somehow estopped from bringing this application by reason of his failure to object in a more timely way.

I accept that his initial reaction was shock and, perhaps, a feeling of helplessness and resignation. [ 40 ] Mr. A.P.C. says that Ms. J.L.R. initially led him to believe that the access arrangements would largely remain the same because Mr. R.R. would be coming to Vancouver often and would bring S.C. with him. However, shortly after, Ms. J.L.R. sent e-mails to Mr. A.P.C. asking for his proposals about access, and indicating that once she had received his proposal she would be prepared to discuss it with him. In an e-mail on January 9, 2003, Mr. A.P.C. suggested they meet in early February to discuss access.

On January 10, Ms. J.L.R. informed Mr. A.P.C. by e-mail that she would be moving S.C. to Kamloops on March 14, 2003. [ 41 ] Mr. A.P.C.’s concern about the proposed move hardened into opposition following a problem with access that happened during the Christmas holidays. S.C. was to spend the first part of the Christmas holidays with the R.s in Kamloops at Ms. J.L.R.’s parents’ cottage, and then was to be delivered to Mr. A.P.C.’s home on December 29. [ 42 ] On the morning of December 29, Ms. J.L.R. telephoned Mr.

A.P.C. and told him that S.C. would not be coming to his father’s home that day because “the cat had diarrhoea”. Mr. A.P.C. called Ms. J.L.R. back later in the day, and she admitted that the real reason that S.C. wasn’t being delivered that day, was that Mr. R.R. had an appointment in Kamloops the next day and didn’t want to make the drive to Vancouver. [ 43 ] S.C. wasn’t brought to his father’s home until December 31. Instead of being accompanied to the door with his luggage, as usual, he was let out of the car at the end of the driveway. [ 44 ] This incident confirmed Mr.

A.P.C.’s fears that if S.C. moved to Kamloops, there would be problems with his access. He also believed that S.C. was ambivalent about the move, although he avoided discussing the matter with S.C. to the extent possible. Mr. A.P.C. consulted a lawyer for advice, and commenced these proceedings on January 27, 2003. THE LAW AND ITS APPLICATION IN THIS CASE [ 45 ] The parties agree that the factors to be considered on this application are set out in Gordon v. Goertz , 1996 CanLII 191 (SCC) , [1996] 2 S.C.R. 27, and subsequent cases that have applied the principles enunciated in that case.

Counsel have referred the court to Scheiber v. Phyall , 2001 BCSC 565 ; Wanless v. Wanless , 2001 BCSC 210 ; Sorace v. Sorace , 2001 BCSC 352 ; Nunweiler v. Nunweiler , 2000 BCCA 300 ; Hanna v. Hanna , 2001 BCSC 1619 ; Creighton v. Creighton , [1997] B.C.J. No. 2081 ; Kennedy v. Kennedy , [1997] B.C.J. No. 2572 ; Cousens v. Ruddy , 2002 BCSC 20 (CanLII) , [2002] B.C.J. 1208; Garvin v. Garvin , [2002] B.C.J. No. 2757 ; Gullett v. Gullett , [2001] B.C.J. No. 1782 ; and Alexander v. Alexander , 2002 BCSC 1252 (CanLII) , [2002] B.C.J.

No. 1937. [ 46 ] I do not propose to restate the ratio of those cases in these Reasons. The law is not in dispute; it is the application of the principles to the particular circumstances, and the weighing of competing factors to arrive at a decision in the best interests of the affected child that is the challenge in disputes of this nature. [ 47 ] As I stated in the

preamble to these Reasons, at the conclusion of the hearing on March 5, I made an order that S.C. not be removed from the Lower Mainland of British Columbia. The parties are both custodial parents, so the issue here is not custody, but in which parent’s home S.C. should primarily reside. [ 48 ] There is no doubt that S.C. could be well and competently cared for by his mother and stepfather in the new home purchased in Kamloops, or by his father and stepmother in the former family home in Port Coquitlam. In my view, however, the application of the principles set out in Gordon v.

Goertz , cited earlier, makes it clear that it is not in S.C.’s best interests to leave the Lower Mainland. [ 49 ] Ms. J.L.R. deposed in her affidavit, and her counsel emphasized, that if the court did not permit her to move S.C. to Kamloops, she would remain in the Lower Mainland in order that S.C.’s primary residence can continue to be with her. The court does not, of course, determine where the parents should live – our jurisdiction is over the place of residence of the child. I ordered that if Ms. J.L.R. remains

in the Lower Mainland, no change of primary residence should occur. At the time of their separation, and when they entered into their separation agreement, Mr. A.P.C. and Ms. J.L.R. agreed that S.C. should primarily reside with his mother, although they would share custody and guardianship. Although I am satisfied that S.C. could thrive and be happy and content in either of his custodial parents’ households, he has lived primarily in his mother’s home for nearly five years, and a change of primary residence at this time is not necessary if Ms.

J.L.R. remains in the Lower Mainland. [ 50 ] In making the decision I made, I did not overlook the fact that the change in plans the R.s will have to make will cause some degree of hardship for them, certainly in the short term. They have sold their Coquitlam home and have purchased a house in Kamloops. However, this is not an insurmountable problem. Ms. J.L.R.’s parents, who live in Ontario, own a condominium in Burnaby where the R.s lived during repairs and renovations to their Coquitlam home.

The R.s may be able to stay in the condominium until they are able to establish themselves in a more permanent home. [ 51 ] I also understand that Ms. J.L.R. has left her job. It is not clear whether she intended to do so in any event. It may be that she will decide to go back to work, at least on a part-time basis, to supplement the family finances. She was, by her own account and that of Mr. A.P.C., a highly successful and well-regarded bank officer. There is no reason to believe she will not be able to find suitable employment if she decides to return to the paid workforce.

If she does not do so, the adjustments the R.s may have to make to live on Mr. R.R.’s income alone may be more difficult here than they would have been in Kamloops because of what I understand to be a differential in housing costs. [ 52 ] There is no evidence about Mr. R.R.’s income and whether he earns more than Ms. J.L.R. used to earn. There is evidence from Mr. A.P.C., which was not contradicted, that Mr. R.R. is eligible to take a year of parental leave, which would allow Ms. J.L.R. to return to work while Mr.

R.R. cares for their youngest child and provides before and after school care for S.C.. [ 53 ] Despite my understanding of how disappointed the R.s must be to have to give up their plan to move to Kamloops, I am convinced that it is in S.C.’s best interests to remain in the Lower Mainland. S.C. has lived all his short life in this part of the Province. The house in which Mr. A.P.C. still lives was S.C.’s home for the first four and a half years of his life. Although he has lived in two subsequent homes with Ms.

J.L.R., he has had the stability of his father’s home throughout. [ 54 ] Most of S.C.’s extended family live here; none of his extended family live in Kamloops. He has known his sister N. all his life, although when she lived in Prince George with her mother he saw her only on occasions when they were both staying in his father’s home, and during summer vacation, when Ms. J.L.R. included N. in visits to her parents’ summer cottage. Since N. came to live with her father and Ms.

J.F. in 2001, she has been a constant presence in S.C.’s life, seeing him at least two days every week, with few exceptions, as well as extended holiday periods. [ 55 ] Ms. J.L.R. is familiar with the Kamloops area, having spent holidays at a cottage in the region. Mr. R.R. and Ms. J.L.R. do have some friends in Kamloops. However, neither has ever lived there, and neither has immediate family there. [ 56 ] Ms. J.L.R. has always lived in the Lower Mainland. Although her mother and stepfather plan to retire to Kamloops in future, they live at present in Mississauga, Ontario. Ms. J.L.R.’s father is also remarried.

He lives on Hornby Island; his wife lives in New Westminster with Ms. J.L.R.’s sister, I.W.. I.W. is the sister who lived in Mr. A.P.C.’s and Ms. J.L.R.’s home and was S.C.’s nanny for the first four years of his life. Ms. J.L.R. has a close relationship with her stepmother and sister. Ms. J.L.R.’s brother, sister-in-law and S.C.’s two first cousins live in Ladner. [ 57 ] None of Mr. R.R.’s family lives in Kamloops. His parents live in Saskatchewan, one brother and his family live in Calgary; his sister and her husband live in Terrace; another brother’s place of residence was not referred to. [ 58 ] Mr.

A.P.C. has family in the Lower Mainland. None of his family lives in Kamloops. [ 59 ] A move to Kamloops would oblige S.C. to leave behind his friends and team mates, familiar surroundings and activities, and his school. While I am confident he has the ability to make new friends, and that the R.s would involve him in enjoyable activities in Kamloops, no move fails to be accompanied by losses, even in the life of an eight-year-old. [ 60 ] This is not one of those cases where a move will be beneficial to the affected child from a financial point of view. Neither Mr. nor Ms.

J.L.R. will be improving their career prospects. The move will not result in any economic benefit to S.C., directly or indirectly. Unless Ms. J.L.R. finds employment in Kamloops, the family will be living on Mr. R.R.’s income alone. In addition to the family’s usual expenses, Mr. R.R. will have the costs associated with commuting to the Lower Mainland when his work requires him to do so. Assuming that the two families would share the cost of transporting S.C. between the Lower Mainland and Kamloops for visits with Mr.

A.P.C., both parties would be worse off financially. [ 61 ] Most importantly, I am convinced that if S.C. was moved to Kamloops, his relationship with Mr. A.P.C. would change fundamentally and that the change would not be in S.C.’s best interests. [ 62 ] There is no real prospect that Mr. A.P.C. could also relocate to Kamloops. His business and his business contacts are all in the Lower Mainland. Ms. J.F. relocated to the Lower Mainland from the interior to live with Mr. A.P.C..

N. has had one major move in the past two years – from Prince George to Port Coquitlam – it would be unfair to subject her to a second. [ 63 ] At present, S.C. spends at least two consecutive overnight visits with his father each week, and sometimes three nights, except for a few months during the ski season when Mr. A.P.C. spends one weekend a month on ski patrol. Mr. A.P.C.’s profession means that his busiest work time is the summer months, so extended periods of summer vacation access would not be a satisfactory alternative to the loss of frequent, regular contact.

With a child as young as S.C., frequent, shorter visits are a much better way of ensuring a close bond with the non-residential parent, than infrequent, longer visits. [ 64 ] The access arrangements proposed by the R.s would reduce contact between Mr. A.P.C. and S.C. to a few weekends each school semester, plus a share of the holidays. If Mr. A.P.C., Ms. J.F. and N. travelled to Kamloops, they would have the expense of the trip

and hotel accommodation. If S.C. flew to Vancouver for weekends, the cost for both families would be significant and that is likely to make frequent flights unaffordable. S.C. is probably a little young to travel unaccompanied on a bus. The remaining alternative is to travel back and forth by car. However, the trip by bus or car takes several hours and in winter road conditions are often poor or even dangerous.

Travelling for a regular weekend would mean all of Friday evening on the road and a long return trip on Sunday afternoon – not a happy prospect for an eight-year-old. [ 65 ] A change of primary residence to Mr. A.P.C.’s home would not present all of the same challenges. Because Ms. J.L.R. has family in the Lower Mainland, and since she has resigned her employment, it would not be as difficult or onerous for her to travel to the Lower Mainland to spend time with S.C.. The R.s could stay with members of their families during visits with S.C., or perhaps take advantage of the Burnaby condominium. Presumably Mr.

R.R. will be making frequent trips to the Lower Mainland for work in any event, and Ms. J.L.R. and M. could accompany him in order to spend time with S.C., resulting in cost savings. [ 66 ] If S.C. moved to Kamloops, he would lose the benefit of Mr. A.P.C.’s involvement in his sporting and athletic activities. In addition, the move would inevitably place S.C. in the position of having to choose between access visits with his father and regularly scheduled team games and practices. There is no doubt that Ms.

J.L.R. intended to involve S.C. in these activities in Kamloops – she has deposed to having already registered him in some activities in anticipation of the move. Since many of these activities – practices and games, occur on weekends, it is inevitable that the activities would conflict with arrangements for S.C. to visit Mr. A.P.C.. This would lead to unhappiness for everyone, with Stephen either having to miss seeing his father in order to participate in games and practices, or miss the events both parents agree are beneficial to him.

S.C. would also lose the benefit he currently has of his father’s involvement in his activities – as coach, audience and supporter. [ 67 ] The only apparent benefit of the move, for S.C., appears to be the fact that Ms. J.L.R. would be a full-time homemaker and parent. There is, of course, no evidence that S.C. was not doing very well when Ms. J.L.R. worked outside the home on a full-time basis. S.C. would also have the benefit of a full-time homemaker if he resided primarily in his father’s home, although it would be Ms. J.F., and not Ms.

J.L.R., performing that role. [ 68 ] It does appear however, that while the move to Kamloops would facilitate more contact between S.C. and his mother, it would result in significantly less contact with his father and sister. It might also mean that S.C. would see less of his stepfather, since Mr.

R.R. will sometimes have to commute to the Lower Mainland for work. [ 69 ] The authorities establish that the custodial (primary residence) parent’s reason for moving is relevant only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child. [ 70 ] In this case, I am of the view that Ms. J.L.R.’s reason for moving to Kamloops is relevant to her ability to meet S.C.’s needs. The objective of the move is to make it easier for the R.s to live on one income, thereby allowing Ms. J.L.R. to stay at home and spend more time with S.C. and his brother. Ms.

J.L.R. argues that the move is in S.C.’s best interests, because it means she will spend more time with him. [ 71 ] While this may be a commendable objective, the reasoning behind it does reveal that Ms. J.L.R. does not understand that if it is a good thing for a child to spend more time with a parent, it is not a good thing to reduce the opportunities for meaningful contact between that child and another parent. Ms. J.L.R. undervalues the relationship between S.C. and Mr. A.P.C.. She was prepared to sacrifice that relationship to her desire, and that of Mr. R.R., for a different lifestyle.

In my view, the price S.C. would have to pay would be too high. [ 72 ] I am not persuaded that S.C. would benefit from a move to Kamloops in these circumstances. In my view, the existing arrangements have been in S.C.’s best interests and should continue. If, however, Ms. J.L.R. decides that she will move to Kamloops, then S.C.’s interests will be best served by having him remain in the Lower Mainland, and live with his father, Ms. J.F. and N.. COSTS [ 73 ] Normally Mr. A.P.C. would be entitled to his costs of this application.

In the circumstances of this case, however, each party shall bear his or her own costs. Ms. J.L.R. failed to live up to her obligations to consult with Mr. A.P.C. before finalizing her plans for the move. However, if Mr. A.P.C. had expressed his objections or reservations earlier, or more strenuously, once he was notified by Ms. J.L.R. of her plans, perhaps the R.s would not have proceeded with so much despatch. They have incurred costs that they might have avoided had they realized, earlier, that Mr. A.P.C. intended to oppose the move.

As a result, I consider this to be a case where the ordinary rule that the successful party should recover costs, should not apply. “W.G. Baker, J.” The Honourable Madam Justice W.G. Baker