G.M. v. S.G., 2020 BCPC 307

Citation: G.M. v. S.G. 2020 BCPC 307 Date: 20200305 File No: F-17896 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: G.M. APPLICANT AND: S.G. RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. CLEAVELEY Counsel for the Applicant: A. Glaicar Counsel for the Respondent: D. Komori Place of Hearing: Kamloops , B.C. Date of Judgment: March 5, 2020

[ 1 ] THE COURT : G.M. and S.G. are the parents of A.M.M.G. born on [omitted for publication]. [ 2 ] This interim ruling pertains to G.M.’s application for guardianship, parenting time, allocation of parental responsibilities, and the central issue before me, an Order that S.G. return the child to Kamloops immediately. [ 3 ] In the short hearing before me, only the parties testified.

I also received affidavits from each. [ 4 ] The primary purpose of interim rulings in family litigation is to maintain the status quo provided that any order is in the best interests of the child. [ 5 ] This matter is set for hearing on June 29 and 30, 2020. [ 6 ] In the hearing before me, credibility became an issue. G.M.’s evidence was very thoughtful, he made the appropriate concessions when required to do so, and most importantly, he was restrained in his criticism of S.G. in circumstances which are to me very troubling.

S.G., on the other hand, demonstrated that she is more concerned about her interests than those of G.M. and the child. [ 7 ] Where there is a conflict in the evidence, I prefer that of G.M. over S.G.’s. [ 8 ] Based on this conclusion, I will not recite the facts in any detail. [ 9 ] G.M. has lived and worked in Kamloops most of his life. His family also lives in this area. [ 10 ] S.G. and the child currently live in Powell River where most of her family resides. She had been in Kamloops for eight or nine years prior to the birth of the parties' child.

S.G. has a sister, brother-in-law, and a niece and nephew in Kamloops. [ 11 ] The parties dated for approximately four to five months in 2018 and, for a period of that time, lived together. They separated near the end of the October 2018 and, within approximately a week, S.G. discovered that she was pregnant. [ 12 ] In an affidavit, S.G. deposed that, "It," referring to the pregnancy, "came as a surprise given our respective ages.

It was not planned." S.G. notified G.M. almost immediately. [ 13 ] Prior to the birth of the child, G.M. made a considerable commitment, both personally and financially, to S.G. and their unborn child. [ 14 ] The parties never lived together after the birth of the child. [ 15 ] S.G., who is a good mother, primarily cared for the child. G.M. regularly went to S.G.’s home to help out with feeding, changing diapers, bathing, cuddling, and soothing the baby.

I am also satisfied that G.M. would have been more engaged with the child had he been given the opportunity. [ 16 ] G.M. commenced paying the appropriate child support after the child's birth. [ 17 ] After the birth of the parties' child, S.G. and the child visited Powell River on two occasions. The first was between July 6 and August 7, 2019, and the second was between August 28 and September 3, 2019. [ 18 ] On September 18 and 20, the parties attended the Family Justice Centre in Kamloops to discuss co-parenting.

It was during these sessions that G.M. was told by S.G. that she was suffering from postpartum depression and that she wanted to visit her family in Powell River. S.G. told him that this was not a relocation, but she needed the support of her family at this time. [ 19 ] G.M. testified that the mediator prepared a memorandum of understanding regarding the agreement reached by the parties at the mediation sessions.

The memorandum of understanding states the following: • S.G. shall go to Powell River on September 29 to get family support and help with her postpartum depression • The parties agreed that this was not a relocation to Powell River. • The parties agreed to continue to nurture the relationship between G.M. and his son while S.G. was in Powell River • The parties agreed that G.M. will have parenting time as agreed between the parties • G.M. was to have parenting time with the child on September 27 and 28. • The parties would make an effort for G.M.’s parents to have contact time with the child [ 20 ] In cross-examination, S.G. acknowledged that she agreed with the terms.

Subsequently, when S.G. received the written document, she did not sign it. [ 21 ] After S.G. left Kamloops on September 29, 2019, there was regular contact between the parties by text messages and Wi-Fi Messenger and there was FaceTime with the child. [ 22 ] On October 10, 2019, S.G. gave notice to her Kamloops landlord that she would be vacating her premises.

[ 23 ] G.M. took holidays and visited S.G. and the child in Powell River from October 29, 2019, to November 1, 2019.

In the mornings, G.M. went to S.G.’s home with breakfast or he would make it and spend the day with their child and this included some time alone. [ 24 ] During this visit, the parties briefly discussed parenting their child, but due to S.G.’s continued postpartum depression, G.M. did not press the issue. [ 25 ] In the month of November 2019, there was almost daily contact between the parties which included FaceTime conversations with the child. [ 26 ] On November 25, 2019, during a telephone conversation between the parties, G.M. pressed the point of S.G. returning to Kamloops so that he could be a part of his son's life.

It was during this call that S.G. told G.M. that she would not be returning to Kamloops with the child and that she planned to live in Powell River. [ 27 ] The next day, November 26, 2019, G.M. filed an application and sought the relief which I mentioned at the outset. [ 28 ] Since then, G.M. has had two court-ordered periods with the child.

He visited Powell River from January 5 to the 12, 2020, and S.G. brought the child to Kamloops on January 27 to 31, 2020. [ 29 ] G.M., to succeed in this application, must satisfy me that he is a guardian and that it is in the child's best interests that he be returned to Kamloops pending a full hearing. [ 30 ] Both counsel have been very helpful in providing me with authorities dealing with guardianship and what I will call the relocation issue. [ 31 ] In A.A.A.M. v. British Columbia (Director of Adoption) , [2015] B.C.J. No. 993 , the Court of Appeal considered s. 39(3)(

c) of the Family Law Act and the words "regularly cares for the child." The court said: It seems to me that the intention of the Legislature was to refer to a parent who has demonstrated a continuing willingness to provide for the child's ongoing needs and a record of ‘usually’ or ‘normally’ doing so in fact. Certainly, it connotes something more than simply ‘visiting’ the child, even at regular intervals. [ 32 ] These words are apposite in this case. [ 33 ] It is my view that G.M. falls within this definition.

He has very clearly demonstrated a continuing willingness to provide for the child and a history of doing so and, as I said earlier, had he been given more of an opportunity, I am satisfied that he would have been more involved. [ 34 ] Although it is not necessary in view of my finding with regard to s. 39(3)(

c) of the Act , I am also satisfied that G.M. would likely be successful if he were to apply pursuant to s. 51 of the Act to be appointed guardian. In my view, such an application would meet the best interest test as contained in the section. [ 35 ] Doyle v. Handley , [2018] B.C.J. No. 333 , is a similar situation as to the one before me. In that case, the mother and the child moved from Fort St. John to Vancouver so that the mother could pursue her education at UBC. Mr.

Justice Armstrong said this about the removal of the child: I have concluded that the respondent’s behaviour of moving without obtaining court approval for her relocation is entirely inappropriate and disrespectful of the child’s right to have a fulsome relationship with his father and the claimant’s right to share parenting responsibilities with the respondent. [ 36 ] Nevertheless, the court held that the mother's ongoing educational studies could be "irreparably harmed" if she was forced to return to Fort St.

John with the child prior to the full hearing. [ 37 ] The situation before me is different. [ 38 ] On September 29, 2019, when S.G. went to Powell River she had agreed to the following: she was not relocating, G.M. would have parenting time, and G.M.’s family may have contact time. S.G. in her subsequent pleadings conceded guardianship, allocation of parental responsibilities, and parenting time. [ 39 ] I appreciate that S.G. is more comfortable in Powell River, but there is no single or cumulative factor or factors which approach the irreparable harm as mentioned in Doyle v.

Handley . [ 40 ] S.G.’s postpartum depression is now controlled medically and she is coping better. S.G. has family support in Powell River, but she is not without such support in Kamloops. S.G. also acknowledged that she had agency help in Kamloops. The house lease which S.G. signed is not a factor.

This agreement was completed after S.G. clearly understood that G.M. wanted the child returned to Kamloops. [ 41 ] I agree with G.M.’s argument that the negative impact on the child would be limited if S.G. was required to return to Kamloops. [ 42 ] It is my view that the best interests of the child can only be met by having him return to Kamloops where he will have the benefit of both parents. This will allow the child to see G.M. on a consistent basis leading up to the June hearing. It is not fair or feasible to think that this can be done on the current access

schedule and the time required to travel between Powell River and Kamloops. [ 43 ] The status quo which was in place before S.G. relocated without notice to Powell River in late September must be restored.

[ 44 ] I am making the following interim orders. [ 45 ] G.M. is a guardian under s. 39(3) of the Family Law Act . [ 46 ] The guardians shall share the parenting responsibilities as follows: (

a) Each guardian will have the obligation to advise the other guardian(

s) of any matters of a significant nature affecting the child; (

b) Each guardian will have the obligation to discuss with the other guardians any significant decisions that have to be made concerning the child, including significant decisions about the health (except emergency decisions), education, religious instruction and general welfare; (

c) The guardians will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions; (

d) In the event that the guardians cannot reach agreement on a significant decision despite their best efforts, S.G. will be entitled to make those decisions and G.M. will have the right to apply for directions on any decision the guardian(

s) consider(

s) contrary to the best interests of the child, under s. 49 of the Family Law Act ; and (

e) Each guardian will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third party caregivers. [ 47 ] I am not going to repeat it, but it is contained in S.G.’s reply, the second page, paragraphs (

a) through (e). Of course, that gives S.G. the right to make the decision in the event the parties cannot reach a decision. [ 48 ] Lastly, S.G. shall return the child to Kamloops by March 28, 2020. [ 49 ] MR. KOMORI: By March which? [ 50 ] THE COURT: March 28. (REASONS CONCLUDED)