J.M.L. v. R.D.L. Date:, 2017 BCPC 302

Citation: J.M.L. v. R.D.L. Date: 20170925 2017 BCPC 302 File No: F-9526 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J.M.L. APPLICANT AND: R.D.L. RESPONDENT REASONS FOR JUDGMENT RE APPLICATION FOR RELOCATION OF THE HONOURABLE JUDGE J. CHALLENGER

Counsel for the Applicant: Greg Diamond Counsel for the Respondent: Zahra Jenab Place of Hearing: North Vancouver , B.C. Dates of Hearing: July 28 and August 3, 2017 Date of Judgment: September 25, 2017 [ 1 ] Ms. L. (“Mother”) sought an order that she be permitted to move with the child B.(1) to Powell River from Squamish. Mr. L. (“Father”) was opposed and said that B.(1) should remain living with him in Squamish. The matter was heard in July and early August. Due to the impending school year, I gave my decision at the end of the hearing and reserved my reasons.

Mother’s application was denied. [ 2 ] Mother and Father each testified. A Hear the Child Report was prepared and filed. The parties had a long term relationship commencing in 1997. They separated in July of 2013. They entered into a written agreement, prepared by Mother and without legal advice pursuant to which they agree to equal parenting time. [ 3 ] B.(1) is now 11. His family has lived in Squamish his entire life. He has an older full sibling, Q., age 18, who has chosen to move with Mother to Powell River. He is interested in doing a further year of high school there to upgrade his Grade 12 courses.

The high school in Powell River offers a performing arts program which is not available in Squamish. Q. is planning to go to Studio 58 at [omitted for publication] in 2018. [ 4 ] B.(1) has two older half-sisters through his mother. B.(2), age 24, currently resides in Squamish and C., age 26, resides in Vancouver and is attending school there. B.(1) sees C. on holidays and from time to time. He sees B.(2) regularly. According to Mother there is a strong prospect B.(2) will re-locate and will run the B&B. It may however be a year or more before the B&B is operating.

C. may also re-locate to Powell River; however, her plans are much more uncertain. Given their ages and stages of life, I viewed this factor as speculative and not likely permanent so did not give it significant weight in the decision made. [ 5 ] The parents are each capable and well able to care for B.(1) in all respects. They separated when B.(1) was 7. Since separation they have either lived in the same home but with Father in a suite or in separate homes nearby each other in Squamish.

They have each cared for B.(1) and Q. throughout their lives (and C. and B.(2) during Mother’s parenting time with them) and have shared parenting responsibilities effectively since separation. It is apparent that the litigation respecting where B.(1) will reside has caused some animosity between the parties. I am hopeful this will resolve itself over time now that the matter has been decided. [ 6 ] Since February of 2017, B.(1) has been with his parents on a week on/off schedule. Mother testified that B.(1) lived with her and saw his Father on weekends only from September of 2013 to the end of 2016.

She prepared calendars from memory which reflected this. However, in cross-examination she conceded that on many points the calendars were inaccurate. In particular, she failed to take into consideration the lengthy periods of time that Father was living in the same home and that B.(1) frequently spent time with him during the week including sleeping in his suite. Father testified that he and B.(1) spent significant time together throughout the time after separation including many weeknights. [ 7 ] There are no health concerns for any of the family impacting my decision.

Mother has an injury to her hand which does not impact her capacity to parent. Father had heart surgery but has fully recovered. B.(1) has a condition known as “Geographic Tongue” which causes marks on his tongue and at times some minor discomfort but which is effectively addressed through his diet and oral hygiene. [ 8 ] Father works for the [omitted for publication] full time in the maintenance department. His hours are Monday to Friday from 7:30 a.m. to 3:30 p.m. He owns a home in Squamish.

He lives upstairs and rents out the basement suite. [ 9 ] Mother was a custodian and worked in various schools from Pemberton to Squamish. She is now unable to work due to the injury to her hand. She is pursuing a long term disability claim with the WCB. Due to her inability to find employment which does not involve the use of her dominant hand and the cost of living in Squamish, Mother determined it was in her long term financial interest to purchase two properties in Powell River which she intends to use to generate income. One is a home near the ferry which she plans to run as a B&B.

The other is a small farm which will be her residence and a health and wellness facility. She has been in a committed relationship since 2014 and is now co-habiting with her new partner who is a yoga instructor, a person B.(1) and Mother have accepted into their lives without issue. [ 10 ] Mother’s decision to relocate was well considered and appropriate for her in all the circumstances. She chose to commit herself to living in Powell River before obtaining the consent of Father or a court order allowing her to relocate with the child.

I am mindful I am not permitted to consider whether she would not have relocated if she were not permitted to move with B.(1) nor to consider this as evidence of bad faith. [ 11 ] Mother said that she has been the primary caregiver to B.(1). I accept this was likely true when B.(1) was an infant and toddler. However, I accept that when she was working in Pemberton for 4 to 5 months in 2014 and staying overnight there, Father was providing primary care for the children.

I also accept that Father also took care of the children while Mother worked her 4:30 p.m. to 11:00 p.m. shifts as a custodian in Whistler and Squamish. What is clear from all the evidence is that B.(1) has a healthy, loving, and bonded relationship with each of his parents. [ 12 ] Mother said she attended to the majority of the household and child rearing responsibilities both before and since separation. Father said that he was and is fully involved and actively engaged in household duties and child rearing responsibilities. I accept that

there was a sharing of these responsibilities with Mother dealing primarily with medical and dental appointments and Father dealing primarily with sport and activities. Even if Mother is correct and she had been attending to most of these responsibilities with respect to B.(1), I find that Father now maintains a home that is appropriate and is capable of meeting B.(1)’s needs with respect to his hygiene, nutrition, medical issues, dental care, and education.

This is so even if Father’s standards do not always conform to Mother’s standards and expectations. [ 13 ] Both Q. and B.(1) attended the [omitted for publication] in Squamish. B.(1) wishes to continue to attend there for as many grades as he is able to which may only be for the next two years. The school is only able to offer Grade 7 if they have sufficient enrolment for those years. B.(1) is a good student who is flourishing academically at his current school. In the past, Father and Mother both cleaned the school to off- set the fees for the children.

The ability of the parents to pay the fees for the 2017/2018 year, Grade 5 for B.(1), was not in issue. The [omitted for publication] has half days each Friday. [ 14 ] Mother said that she was primarily involved in B.(1)’s schooling. Father said he too was involved in B.(1)’s schooling and was also involved in B.(1)’s sports and activities. Father will now have to take the primary role in B.(1)’s schooling and I accept that he will do so fully and wholeheartedly. [ 15 ] Mother carefully researched the education available to B.(1) in Powell River.

There is an excellent outdoor school which offers a program that allows for flexibility in attendance and part time home study. This would facilitate a 9 day stay with his father each month. Mother said she could accompany B.(1) to Squamish and stay with friends. She could assist B.(1) with his studying during the day while Father was at work. Mother also says that there are greater cultural opportunities for B.(1) in Powell River.

However, the evidence is that the [omitted for publication] curriculum puts great emphasis on the arts and culture. [ 16 ] Mother also testified that B.(1) will know other children in Powell River as two other families whose children attended the [omitted for publication] have or will be moving to Powell River and two children who attend the school spend their summers there. Father said that B.(1) has many other close friends in Squamish through the school and his activities. [ 17 ] The Hear the Child Report was prepared in early summer 2017. B.(1) presents as a happy and well-adjusted child.

He reported having no difficulties going back and forth between his parents’ homes and enjoys being with each of them on the week on/off

schedule that had been in place since early 2017. He anticipated being sad if he did not see his siblings as frequently as he has in the past but recognized he would continue to have regular contact and would adjust to this. B.(1) had come to believe he would be moving to Powell River because his mother behaved as though it were a foregone conclusion (my words). B.(1) does not want to move to Powell River because he wants to continue to attend the [omitted for publication] through at least Grades 5 and 6. He expressed a strong preference in this regard. [ 18 ] The governing law is set out in ss. 69 and 37 of the Family Law Act : 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. 37

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(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. [ 19 ] I have also considered the authorities referred to by counsel being R.E.Q. v. G.J.K. , 2016 BCSC 1498 , K.E.L. v. N.L.P. , 2105 BCPC 306, and C.E.C. v. R.R.C., 2015 BCPC 448 . [ 20 ] The first issue to be addressed was whether the parties had substantially equal parenting time. There is no issue that they have shared equal parenting time in the 6 months preceding the trial. The separation agreement also provided for an equal sharing of parenting time.

On all the evidence, I find the parents had substantially equal parenting time throughout the period after separation. I accept Father’s evidence on this point. As a result of this finding, Mother is not entitled to rely on the presumption that the relocation is in B.(1)’s best interests. [ 21 ] For the reasons set out above, I find Mother’s decision to relocate to Powell River was subjectively taken in good faith. I find she did not move for the purpose of interfering in B.(1)’s relationship with his father.

However, aside from her stated financial motivation, it is difficult to see how this decision was objectively in B.(1)’s best interests given his age and connection to his father and to his school in Squamish. [ 22 ] I find that Mother’s proposed arrangements to preserve B.(1)’s relationship with his father are not reasonable or workable for the child in the long term. I accept that Mother is prepared to travel and stay with friends for two weekends and a week each month.

However, I cannot find it would be in B.(1)’s best interests to be in school for 3 out of 4 weeks each month and home studying in another location for one week each month. He would miss two full weekends each month in his home community. In my view, this would significantly disrupt his ability to engage in activities and to develop friendships in Powell River. [ 23 ] Due to the lengthy time it takes to travel from Powell River to Squamish, some five to six hours, the beginning Saturday and the end Sunday of the proposed parenting time with Father would be limited.

During the week, Father would be able to spend time with B. (1) briefly each morning and when he returns from work until bed time. Father’s work

schedule would limit his ability to have meaningful time with B.(1) were he to travel to Powell River over a weekend or even long weekend and he would incur travel and accommodation costs which would be disproportionate to the time he would get to spend with his son. [ 24 ] Mother is not employed. She is in the process of developing her business ideas. She testified that she could leave her affairs in the hands of her partner and daughter B.(2) when she was in Squamish. She would not have any accommodation expenses because she has many friends she could stay with in Squamish.

Her current circumstances allow her great flexibility in arranging for parenting time with B.(1) in Squamish. She can travel on weekdays and stay for extended periods if she chooses. B.(1) can visit her, his brother and, if she moves there as well, his sister in Powell River monthly on the statutory long weekends and during school holidays. B.(1) will have the opportunity to become accustomed to Powell River and establish friendships over time.

The family connections in Powell River are hoped for but not certain save for Q.’s attendance for the school year of 2017/2018. [ 25 ] B.(1) wants to stay and finish his schooling at the [omitted for publication]. He is comfortable and familiar with his life in Squamish and is flourishing there. The road ahead in his father’s home is predictable and stable. It remains to be seen how Mother’s plans for their life in Powell River evolve. B.(1) is equally bonded with both his parents.

As he observed, with some sagacity, he will be sad at first but will get used to not seeing his brother and sister on a day to day basis. [ 26 ] I find in all the circumstances that Mother has failed to establish that the relocation of B.(1) to Powell River is in his best

interests. _______________________________ The Honourable Judge J. Challenger Provincial Court of British Columbia