C.E.C. v. R.R.C. Date:, 2015 BCPC 448

Citation: C.E.C. v. R.R.C. Date: 20151125 2015 BCPC 448 File No: F1184 Registry: Nakusp IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.E.C. APPLICANT AND: R.R.C. RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. HEWSON Counsel for the Applicant: J.H. Harrison

Counsel for the Respondent: T. Underwood Place of Hearing: Castlegar , B.C. Date of Hearing: November 25, 2015 Date of Judgment: November 25, 2015 [ 1 ] THE COURT: This is an application for relocation. The applicant is C.E.C. who is also known as C.M. She has been referred to as Ms. M. throughout these proceedings and that is the way that I will refer to her in these reasons. The respondent is R.R.C. [ 2 ] The children affected are S., age eight, who is the son of the parties and R., aged 13, who is the natural daughter of Ms. M. and the adopted daughter of R.R.C. Ms.

M. has a daughter with her new husband, A.M., who is two years old. That child's name is S(o). R.R.C. is in a new relationship. His new partner is T.B. T.B. has two children whose names are T., age 16, and B., age 13. [ 3 ] Ms. M. proposes to relocate S. and R. to Victoria. The reason for the relocation is that, according to him, A.M. has better job prospects in Victoria than he would enjoy in the Kootenays.

The parties agree that parenting time has not been substantially equal. [ 4 ] In these reasons, I will review the background to this application, set out the law that applies, and then apply the law to those facts. [ 5 ] The background is this. Ms. M. and R.R.C. were married on April 24, 2006. R.R.C. adopted R. as his daughter. Ms. M. and R.R.C. moved from Calgary to Nelson in November 2008. According to R.R.C., they moved to escape the quality of life in a large city and find a slower paced life closer to nature. Neither Ms.

M. nor R.R.C. had any extended family in the West Kootenays. [ 6 ] The parties separated on March 1, 2010, and were divorced on March 5, 2012. The parties signed a separation agreement. The separation agreement prohibits relocation outside of British Columbia without the consent of the other party. The agreement is, unfortunately, silent with respect to relocation within British Columbia. [ 7 ] Ms. M. met A.M. on June 25, 2010. She moved with him to Nakusp in 2012. In October 2013, they moved to Salmo.

In July 2015, according to the evidence I have heard, they left Salmo and have been living, first, in a motorhome and then in a temporary vacation rental in Nelson. [ 8 ] R.R.C. has been a resident of Nelson since he moved here. He has been in relationship with T.B. for five-and-a-half years. T.B. has been close to both children, particularly S. T.B. has assisted in S.’s homeschooling. R.R.C. describes T.B. as the social coordinator for his family. R.R.C. is a mechanical engineer. He travels to Calgary one week each month and works from his home in Nelson for the balance of each month. [ 9 ] Ms.

M. is employed as a homemaker. R. and S. are homeschooled. In the time period after their separation, the parties had hoped to parent cooperatively. They looked into the idea of sharing a house in which they and the children could all live. However, when the parties each formed separate new relationships, the relationship between the two of them became more complicated. [ 10 ] The families of R.R.C. and his new partner and Ms. M. and her new partner are intertwined to a high degree. With the possible exception of S(o), all of the children have relationships with one another.

It is not uncommon for R.R.C. to communicate directly with A.M., nor is it uncommon for Ms. M. to communicate directly with T.B. [ 11 ] R. and R.R.C. do not have an easy relationship. According to Ms. M., R. finds it difficult to relate to her adoptive father and she finds his way of parenting to be rigid. R. prefers to live with her mother, Ms. M. [ 12 ] Since she moved to Nakusp in 2012, R. has not gone to see R.R.C. on a schedule, but has instead been allowed to choose when she would go to see him. R. would come to R.R.C.'s house with S., but would return early on a bus to Nakusp.

After a few bus rides, she stopped coming. According to Ms. M., R. has slept over at her adopted father's residence twice in 2015. R. has about a one-day visit every three months. Over the past summer, R. had parenting time with R.R.C. on only one occasion. [ 13 ] R.R.C. has been sensitive to R.'s anxiety and has chosen not to press the issue of parenting time beyond what R. is capable of enjoying. R.R.C. believes that R.'s desire to spend time with him has been affected by this litigation. The parties were in court in February 2015 and R. declined to visit him. When R.R.C. refused to consent to Ms.

M.'s proposed relocation to Victoria in September 2015, R. was upset and phoned him about it. [ 14 ] S. has had more regular contact with his father. According to Ms. M., S. has a great relationship with his father. S. found the transition between the two homes difficult when his sister stopped going to R.R.C.'s residence. Since October 2013, when the M. family moved to Salmo, S. has been going to his father's residence for three weekends every month. According to Ms. M., S. spends about 10 days each month with his father. Ms. M. says that S. also has a great relationship with T.B., T., and B. [ 15 ] Ms.

M. described R.R.C. as an active father. R.R.C.'s parenting time with S. has been decreasing incrementally starting when Ms. M. moved to Nakusp. R.R.C. would like to share parenting time with S. equally with Ms. M. [ 16 ] Ms. M. testified about the number of family members she would be able to contact in the Lower Mainland if she was living in Victoria. However, frequent contact with the extended family does not appear to have ever been a priority for Ms. M. or R.R.C. [ 17 ] S. and R. are homeschooled in accordance with the philosophy of education called Unschooling.

Unschooling refers to an approach to education in which children are homeschooled without a curriculum. Ms. M. and R.R.C. have both supported this approach to the education of their children.

[ 18 ] In the fall of 2012, R.R.C. enrolled S. in a program called [omitted for publication] in Nelson. He was concerned about what he perceived to be speech problems. He also wanted to ensure S. had peers to play with and more learning opportunities. It appeared to R.R.C. that attending [omitted for publication] was causing S. anxiety and he withdrew the child from the program in December 2012. [ 19 ] On R.R.C.'s initiative, he and Ms. M. took S. to a speech therapist at the Interior Health Authority in February 2013.

The speech therapist recommended that S. be enrolled in speech therapy and that his hearing be tested. R.R.C. took S. to speech therapy and says that he no longer has any speech issues. [ 20 ] Ms. M. believes that moving to Victoria would enhance the children's social life because she believes that there is a greater engagement in homeschooling in that region. She adds that R. would like to join a young actors' conservatory which would give her an opportunity to work in film.

She said that although there was a lot of theatre in the Kootenays, there was no opportunity to work in film here. [ 21 ] In addition, there is a horseback-riding coach in Victoria named M.R. that R. would like to work with. Finally, Ms. M. said that R. had tried surfing last summer and that, in Ms. M.'s words, it had "made her come alive." [ 22 ] Ms. M. said that R. was upset because R.R.C. would not consent to her moving away from the Kootenays to Vancouver Island. [ 23 ] She said that S. would like to start a homeschool skateboard club, but that he was the sort of child who was happy anywhere.

R.R.C. described him in the same way. [ 24 ] Ms. M. has prepared four different parenting time proposals for R.R.C. She provided the most recent proposal to him just before the start of this hearing. She is proposing that S. fly between Vancouver Island and the Kootenays. The flight

schedule requires a connection. Given his age, S. can do one leg of the trip as an unaccompanied minor, but will need to be accompanied by an adult on the other leg of the trip. Ms. M. proposes that R.R.C. pay for half of the cost of S.'s travel. [ 25 ] There is no proposal with respect to R.'s travel. R.R.C. believes that this is because Ms. M. does not expect R. to ever travel back to Nelson. [ 26 ] R.R.C. recognizes that both S. and R. are troubled by separation from their mother.

He is concerned that R. would never fly from Victoria to Nelson to see him and that S. might find the flights a novelty on the first few visits, but that the novelty would wear off. R.R.C. is concerned about both children having to miss regularly scheduled activities in Victoria in order to come to Nelson to see him and the resentment that that might create. Ultimately, he is concerned that the relocation would change his role in the lives of his children from that of an active parent to that a spectator. [ 27 ] From October 2010 when A.M. and Ms.

M. began their relationship until the present time, A.M. has only been sporadically employed. He had a contract with a British company on which he worked when they needed him and made about $36,000 per year. A.M. and Ms. M. supported themselves on spousal support, child support, and the proceeds of the sale of the house that Ms. M. had owned with R.R.C. in [omitted for publication] near Nelson. Their savings, including the proceeds of the sale of the house, have been spent. [ 28 ] A.M. has earned two Master's degree, one in Computer Engineering and a second in Human Communication.

He works as a user experience consultant for a company in the United Kingdom called [omitted for publication]. He has no formal contract and would be the first contractor to be let go if the company engaged in cutbacks. A.M. has been actively searching for employment for three years. He has stepped up his search as a result of other financial exigencies. [ 29 ] Earlier this year, A.M. had obtained a job in Victoria for which he would be paid between $12,000 and $16,000 each month. His mother lives in Victoria. He told that employer in June that he could not take the job.

R.R.C. believes that A.M. was in Victoria for at least the month of September. In his evidence, A.M. did not mention being in Victoria in September or, if he was, whether he took any steps to find employment. As of the time of the hearing, A.M. has not secured employment in Victoria. [ 30 ] The relevant portions of the s. 37 of the Family Law Act provide as follows:

(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; [and] (

e) the child's need for stability, given the child's age and stage of development . . . [ 31 ] There are other factors included in s. 37(2), but they are not particularly relevant to this hearing. [ 32 ] Section 37(3) provides that: An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being. [ 33 ] The relevant portions of s. 69 of the Family Law Act provide: 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) . . . 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. [ 34 ] Subsection (4) of s. 69 reads : 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 . . . [ 35 ] Subsection (

b) says: . . . 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. [ 36 ] Section 69(6) provides that: 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 . . . (

d) any restrictions on relocation contained in a written agreement or an order. [ 37 ] Section 69(7) provides that: 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.

[ 38 ] In a decision cited as R.(L.J.) v. R.(S.W.) , 2013 BCSC 1344 , at paragraph 71 , Mr. Justice Betton said this about good faith: Good faith is a subjectively held state of mind. Yet, some of the above characteristics are undoubtedly objective. I find that to the extent a factor listed in s. 69(6) is objective, a positive or negative finding suggests an inference that the relocating guardian either possessed or did not possess the required subjective good faith. [ 39 ] As the Honourable Judge Gouge held in V.(A.) v.

D.(M.) , 2014 BCPC 252 , this requires a judge to answer two questions in relation to each of the four factors set out in s. 69(6) and in relation to any other relevant factors. The two questions are: (

a) does the applicant, Ms. M., honestly believe that a fair consideration of that factor in this case supports the inference that the proposed relocation is in the best interests of S. and R.; and (

b) if so, is her belief objectively reasonable? [ 40 ] I will deal with each of the four factors set out in s. 69(6). [ 41 ] The first is the reason for the proposed relocation. The reason for the proposed relocation is to improve A.M.'s prospects of employment.

However, not only is there no position currently available for him in Victoria, there is no suggestion in the evidence that he has gone further than a simple computer search since turning down the job that was offered to him last June. [ 42 ] Despite the fact that he holds Master's degrees in two disciplines, he has not looked for employment in any field other than his preferred field of user experience consultant. This absence of urgency is consistent with his attitude towards employment, at least since his relationship with Ms. M. began in 2010.

In that time period, at least, it appears that he has been content to have been underemployed. [ 43 ] I find that Ms. M. has an honestly held subjective belief that a fair consideration of this factor supports an inference that the proposed relocation is in the best interests of these two children. She believes subjectively that A.M. can find employment and that he will do so. However, her belief is not objectively reasonable. On an objective assessment of the facts, A.M. does not have employment in Victoria and is doing little to find employment.

The reason for the proposed relocation does not support a finding that the relocation proposal is being made in good faith. [ 44 ] The second factor in s. 69(6) concerns enhancements to the general quality of life. Ms. M. believes that the proposed relocation will provide increased opportunities for the children, particularly R., to participate in extracurricular activities like training with a particular equestrian coach, pursuing a newfound passion for surfing, and participating in theatrical studies that might lead her to working as an actor in film.

However, not only are most of these activities generally similar to the activities available to children in the West Kootenays, they appear to be activities that R. has only recently become interested in. [ 45 ] Ms. M. also believes that there is an increased availability of homeschooling resources in Victoria. However, the essence of homeschooling is that it is done in the home. Given her experience, Ms. M. must be very proficient in homeschooling and will be equally proficient wherever she and the children make their home.

The availability of resources outside of the home is a factor that deserves relatively little weight. [ 46 ] Again, I find that Ms. M. has an honestly held subjective belief that a fair comparison of the quality of life between the West Kootenays and Victoria leads to a conclusion that the relocation is in the best interests of the children. However, on an objective assessment of the facts heard on this trial, S. and R. will enjoy an equally good quality of life in either location.

The factor of enhancing the general quality of life does not support a finding that the relocation proposal is being made in good faith. [ 47 ] The third factor is whether or not notice was given under s. 66. Ms. M. gave notice of her intent to relocate the children under s. 66 of the Family Law Act . This fact supports an inference that the relocation proposal is being made in good faith. [ 48 ] The fourth and final factor is restrictions on relocation in the separation agreement. The separation agreement dated November 10, 2010, states at paragraph 8: 8.

C. and R. agree not to relocate the Children from the jurisdiction of British Columbia without the written consent of the other parent. 9. C. and R. will each provide the other with 90 days written notice of his or her intention to relocate out of the jurisdiction of British Columbia without the children. [ 49 ] The separation agreement is silent with respect to the issue of relocation within British Columbia. Given the size of the province and the difficulties inherent in travelling within it, that is a surprising omission.

There is no way to determine whether the parties turned their minds to the question of relocation within the province. The agreement must be taken at face value and speaks for itself. I find, therefore, that there is no restriction on relocation within the province in the separation agreement. That factor supports an inference that the relocation proposal is being made in good faith. [ 50 ] That brings me to my conclusion with respect to the issue of good faith. There do not appear to me to be any other relevant factors apart from the four set out in s. 69(6).

On a consideration of those four factors, I find that the applicant has failed to establish that the proposed relocation is made in good faith.

I arrive at that conclusion because I find that it is not objectively reasonable to relocate to Victoria without firm employment prospects and without a superior quality of life despite the fact that the applicant gave notice and the fact that there is no restriction of relocation within the province in the separation agreement. [ 51 ] Although it may not be strictly necessary given my finding with respect to good faith, I will comment on the arrangements proposed to preserve the relationships between S., R., and R.R.C.

[ 52 ] Ms. M. has made four separate proposals. When measured by the number of days of parenting time compared with the number of days of parenting time the children currently enjoy with A.M., Ms. M.'s proposals seem reasonable.

However, when measured by the circumstances in which the parenting time would take place which include lengthy visits by children who suffer from anxiety and involve flights for which R.R.C. would be expected to pay half the airfare, the arrangements seem neither reasonable nor workable. [ 53 ] In conclusion, the applicant has failed to establish a presumption that the proposed relocation is in the best interests of the children. [ 54 ] I have considered, as well, the factors set out in s. 37(2) of the Family Law Act . Nothing in that

section or in any of the children's needs and circumstances convinced me that relocation to Victoria is in their best interests. [ 55 ] Accordingly, I order that Ms. M. be prohibited from relocating S. and R. to Victoria. (REASONS FOR JUDGMENT CONCLUDED)