A.N. v. C.B., 2023 BCPC 230

Citation: A.N. v. C.B. 2023 BCPC 230 Date: 20230908 File No: F-222818 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A.N. APPLICANT AND: C.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S. MERRICK Appearing on her own behalf by videoconference: A.N. Counsel for C.B. appearing by videoconference: N. Mills Place of Hearing: Sechelt , B.C. Date of Hearing: September 5 and 6, 2023 Date of Judgment: September 8, 2023 [ 1 ] THE COURT : A.J.B. will be two years old next weekend. His parents are A.N. and C.B. A.J.B. had been living with his

mother on the Sunshine Coast and had frequent and consistent time with his father who also resided on the Sunshine Coast. On July 6, 2023, this Court made an order permitting A.N. to relocate with to North Vancouver. On September 5, 2023, the hearing pursuant to s. 70 to determine parenting time proceeded. Also at that time, the court was asked to determine which of the two daycares A.J.B. should attend. A Brief

Summary of the Facts [ 2 ] Both of A.J.B.'s parents relocated to the Sunshine Coast when he was born. Each of his parents has a residence in the Lower Mainland. C.N. has a residence in North Vancouver and C.B. has a residence in Kitsilano. [ 3 ] As noted, on July 6, 2023, C.N. was permitted to relocate with A.J.B. to North Vancouver. At the July 6 hearing, C.N. said that A.J.B. could attend a daycare in North Vancouver. C.B. was still exploring possibilities and, at that time, advised the court that he believed that he could secure a daycare spot for A.J.B. in Vancouver.

C.B. was ultimately able to register A.J.B. for a daycare in Yaletown. The parties have been unable to agree on which daycare A.J.B. should attend. The parties have also been unable to agree on a

schedule for A.J.B.'s time with his father. Positions of the Parties [ 4 ] A.N. submits that it is in A.J.B.'s best interests to attend the daycare in North Vancouver because it is closest to where A.J.B. lives. She proposes that A.J.B.'s time with his father be every weekend from Thursday to Saturday at noon. [ 5 ] C.B. submits that A.J.B. should attend the daycare in Yaletown. He points out that it is closer to his residence. He says that it is closer to both of A.J.B.'s parents' workplaces. C.B. notes that A.N. works three days a week in Downtown Vancouver.

C.B. expects to be working close to the downtown area in the near future. C.B. has suggested parenting plans, which ensure that A.J.B. will continue to have frequent, consistent, and overnight time with him. The Relevant Legal Principles Regarding a Choice of Daycare [ 6 ] I am grateful to counsel for referring me to the case of Melbourne v. Melbourne , 2022 ONSC 2299 . I agree that the factors that the court should consider in determining which daycare or preschool a child should attend are as follows: 1. the quality of the program; 2. the transit time; 3. contingency planning; 4. stability; and 5. cost.

See Melbourne v. Melbourne at paragraph 4 . [ 7 ] The test that the court is to apply in these circumstances is what is in A.J.B.'s best interests considering each parent's proposed plan. The Legal Principles Respecting Parenting Time [ 8 ] The court must, of course, in making an order for parenting time, consider only A.J.B.’s best interests. With respect to parenting arrangements pursuant to s. 70(2), as I wrote in P.(J.) v. B.(J.) , 2013 BCPC 168 , the purpose of s. 70 is to preserve the existing arrangements where relocation is permitted, not to fundamentally change the parenting arrangements.

Which Daycare Should A.J.B. Attend? [ 9 ] With respect to the quality of programming, I am satisfied that both the North Vancouver daycare and the Yaletown daycare offer an extremely good program. [ 10 ] In terms of transit time, the North Vancouver daycare is close to A.J.B.'s residence. It is a short commute. That is not to say that a commute between the North Shore and Yaletown is an inappropriate commute or an unduly long commute. I would describe it as an appropriate commute, one that many people do on a daily basis.

However, the transit time between A.J.B.'s residence on the North Shore and the daycare, if not ideal, is certainly close to ideal. [ 11 ] In terms of contingency planning, as C.B. says, he is always in close proximity to the Yaletown daycare. He correctly notes that, three days a week, A.N. will be in Downtown Vancouver for work and she, too, will be close to the Yaletown daycare.

A.N. says with respect to the daycare on the North Shore, she will be on the North Shore two days a week and, as well, her family on the North Shore could assist if there was an emergency. [ 12 ] In terms of stability, certainly both programs offer A.J.B. stability. The daycare on the North Shore is certainly a more stable option in the sense that the travel time to Yaletown, while certainly reasonable, does require more driving for A.J.B.'s parents. [ 13 ] As I noted during submissions, A.J.B.'s potential attendance at the Yaletown daycare cannot impact A.N.'s employment. C.B.is self-employed.

A.N. is an employee. A.J.B. would need to be at the Yaletown daycare by 8:00 a.m. It is not an acceptable option to require A.N., who needs to be back at her residence on the days that she works at home for 8:30 a.m., to drive A.J.B. to daycare and then drive home.

[ 14 ] Certainly to C.B.'s credit, he stepped forward and said that, if necessary, he would be responsible for that drive and I think that is quite commendable, but in terms of assessing stability, that is a more challenging scenario than if A.J.B. is attending daycare in North Vancouver. [ 15 ] Interrelated is the s. 70 parenting time issue. In my view, the slightly more stable arrangement for parenting time is if A.J.B. attends the daycare on the North Shore.

The plans for parenting time put forward by both parents are certainly reasonable, but I think A.J.B. attending daycare in the North Shore will allow a slightly, and I say only slightly, more stable parenting arrangement than if he attends the Yaletown daycare. [ 16 ] In terms of cost of daycare, although the daycare on the North Shore is slightly cheaper than the daycare in Yaletown, the cost of either daycare is well within the acceptable range for both parents based on their circumstances.

So cost is a neutral factor. [ 17 ] To summarize, I am of the view that the quality of programming and the cost are equal and neutral factors. Stability of each parent's proposed plan is close to the same, but perhaps, as I have said, A.J.B. attending daycare in the North Shore offers him a slightly more stable plan. Contingency planning, in my view, favours A.J.B. attending the daycare in Yaletown.

Transit time clearly favours A.J.B. attending daycare on the North Shore. [ 18 ] When I consider those factors and consider a parenting arrangement that will ensure A.J.B. continues to have a similar arrangement, that being an arrangement that provided frequent, consistent, and overnight time with his father, I am satisfied that transit time and a parenting arrangement that meets the principle of s. 70 sways the balance. It is my view that the factors referred to in Melbourne v.

Melbourne favour A.J.B. attending the daycare on the North Shore and, when I combine that with the s. 70 consideration, I am satisfied that A.N. has demonstrated that it is A.J.B.'s best interests to attend the daycare on the North Shore. [ 19 ] With respect to parenting time, as I have noted, A.J.B. will be two years old [omitted for publication]. A.J.B. has had overnight parenting time with C.B. each week for one night. A.J.B. has had time with C.B. on Tuesdays, Thursdays, Fridays, and Saturday every other weekend to Sunday.

For clarity, A.J.B.'s overnight time with his father has been Thursday to Friday in Week 1 and Saturday to Sunday in Week 2. [ 20 ] In my view, considering that A.J.B. will continue to reside on the North Shore and attend daycare on the North Shore, A.N.'s proposal that C.B. have parenting time Thursday to Saturday is appropriate and that will be every weekend. So the parenting time will be Thursday to Saturday at noon. [ 21 ] Additionally, it is important that, since A.J.B. is two, the frequency continue as much as possible as it has.

So I am further ordering that every week, A.J.B. will have parenting time with his father from Tuesday at 3:00 p.m. to 6:15 p.m. I appreciate that C.B. and A.J.B. had parenting time until 7:15 p.m. previously, but I am persuaded by A.N.'s concerns that since A.J.B.'s bedtime is eight o'clock, parenting time until 7:15 p.m. does propose a challenge for ensuring that A.J.B. is in bed by 8:00 p.m.

As well, the tenor of C.B.'s submissions, as I understood it, is there is a benefit to parenting time starting a little earlier during the week. [ 22 ] Madam Clerk, are you ready? [ 23 ] THE CLERK: Yes. [ 24 ] THE COURT: Pursuant to s. 49 of the Family Law Act , A.J.B shall attend the daycare in North Shore chosen by A.N. until such time as the parties agree otherwise or until a further order of the court. [ 25 ] Next, subject to the parties agreeing to a different parenting arrangement, A.J.B.'s time with his father commencing the week of September 11 shall be as follows: Tuesdays from 3:00 p.m. to 6:15 p.m. and Thursday to Saturday at noon. [ 26 ] Mr.

Mills, if you wish, the registry can prepare this order, but if you prefer to prepare it, then certainly the Rules permit that. Do you have a preference? [ 27 ] CNSL N. MILLS: I don't really. I think it's -- it will be fine if the registry prepares the order. [ 28 ] THE COURT: Okay. Okay. [ 29 ] A.N.: Your Honour, may I ask a point of clarification? At what time on Thursday is C.B.'s parenting time to commence? Is it after daycare or before daycare? Like will A.J.B. be going to daycare on Thursdays? [ 30 ] THE COURT: That is a good point and I thank you for reminding me.

I was going to actually seek clarity, because I remember there is the opportunity for A.J.B. to attend that daycare three days a week -- [ 31 ] A.N.: Yeah. [ 32 ] THE COURT: -- but I am also aware that C.B. may or may not need childcare arrangements on Thursday. [ 33 ] A.N.: Right. [ 34 ] THE COURT: So I am hoping that the two of you can work it out -- [ 35 ] A.N.: Okay. [ 36 ] THE COURT: -- because I was impressed by the fact that the two of you altered the parenting arrangement previously to best suit A.J.B.

I can see a benefit for keeping the daycare space on Thursday and giving C.B. the flexibility of picking A.J.B. up earlier in the afternoon or, if C.B. had work commitments, A.J.B. could be there for the entire day and C.B. could do a later-in-the-day pickup --

[ 37 ] A.N.: Yeah, okay. [ 38 ] THE COURT: -- but I think the two of you need to decide that and, frankly, I am impressed by how the two of you deal with matters and, I mean, I suppose, ultimately if you could not, I could -- I mean, if you could not agree, then I think A.J.B. should be at the daycare Thursday with C.B. free to pick A.J.B. up at a convenient time to C.B. in the afternoon. [ 39 ] A.N.: Okay. Yeah, sure, we can work it out.

Yeah, I was concerned because when C.B. goes away for vacation and if we only have three-days-a-week daycare, then I might be stuck with childcare on the Thursday and Friday if we only do three days. [ 40 ] THE COURT: Yes, I think -- [ 41 ] A.N.: So it might be best to keep five days. [ 42 ] THE COURT: -- to be clear, if that is an issue, it is clearly C.B.'s responsibility for childcare on Thursdays if he is away. So if -- [ 43 ] A.N.: Okay. [ 44 ] THE COURT: -- I mean, it may be most convenient to keep A.J.B. enrolled in the daycare five days a week.

The daycare will be aware that A.J.B. is not likely to be there on Fridays, but the option is there for C.B. and then if C.B. needs childcare -- [ 45 ] CNSL N. MILLS: I agree that the flexibility is good. [ 46 ] THE COURT: Yes, exactly. [ 47 ] A.N.: Right, okay. Thank you. [ 48 ] THE COURT: Okay, thank you, everyone. (REASONS CONCLUDED)