S.M.A. v. M.L.J. Date:, 2016 BCPC 174

Citation: S.M.A. v. M.L.J. Date: 20160615 2016 BCPC 0174 File No: F15581 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.M.A. APPLICANT AND: M.L.J. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.D. SKILNICK Counsel for the Applicant: S. Gadey

Appearing in person: M.L.J. Place of Hearing: Abbotsford , B.C. Date of Hearing: June 9, 2016 Date of Judgment: June 15, 2016 Introduction [ 1 ] The Applicant S.M.A. and the Respondent M.L.J. are the parents of two children who are the subject of this application: K.S.J., born (d.o.b.), 2005; and T.C.A., born (d.o.b.), 2011 The Applicant is not the biological father of the older child, but he has fulfilled that role in every other sense of the word. The parties lived together from approximately November of 2006 until January of 2013 when they separated.

They were married on October 2, 2010 and have divorced since separating. [ 2 ] On November 18, 2015, the Respondent gave the Applicant notice under

section 66 of the Family Law Act (the “FLA”) of her intention to move the children’s residence to Airdrie, Alberta. On December 1, 2015 (within the 30 day period set out in

section 68 of the FLA) the Applicant filed the application now before the court in which he asks for an order prohibiting the proposed move. A hearing of this application was held on June 9, 2016 and decision was reserved. These reasons for judgement summarize the law that must be applied to an application of this nature, a

summary of the evidence presented at the hearing, and the reasons for making the order ruling on this application.

Summary of the Law [ 3 ] The law which applies to applications of this nature is set out in Division 6 of

Part 4 of the FLA . “Relocation” of a child or children is defined in

section 65 of the FLA as being “a change in the location of the residence of a child or child’s guardian that can reasonably be expected to have a significant impact on the child’s relationship with” the child’s guardian or with “one or more other persons having a significant role in the child’s life.” The primary residence of these children is in Langley, BC. The Respondent wants to change the children’s residence to Airdrie, Alberta, which is about 950 kilometres from Langley.

This is certainly something that would reasonably be expected to have a significant impact on the children’s relationship with the Applicant. Such a move would mean that they would see him less frequently and it would make it more difficult and more expensive for the Applicant to see the children because of the increased geographic distance between them. No one has suggested that the proposed move would not fall within the definition of “relocation” within the meaning of

section 65 of the FLA. [ 4 ]

Section 66 of the FLA requires that the guardian who intends to change the residence of the child must give notice to all other guardians and persons having contact with the child at least 60 days in advance of the proposed move. The notice must contain the date of the proposed relocation and must set out where it is proposed that the child will move to. (The notice can be dispensed with on application to the court on appropriate grounds.) In this case the Applicant does not dispute that the Respondent has given him the proper notice required by

section 66. That notice was given in a letter dated November 18, 2015. [ 5 ] Once notice has been given,

section 67 of the FLA requires that the parties attempt to resolve any issues arising from the proposed relocation. The FLA presumes that the relocation will occur unless another guardian makes an application under

section 68 asking for an order prohibiting the relocation of the child. This is precisely what the Applicant did on December 1, 2015 and it is that application which is now before this court. Under section 69 (2) the proposed relocation can either be permitted or prohibited. [ 6 ] The FLA distinguishes between situations in which the parents have and do not have “substantially equal parenting time with the child.” Whether or not this is the case in a given situation is a question of fact, but in this case both parties agree that they do not have substantially equal parenting time with the children.

In this case the children are in the care of the Respondent for a majority of the time. In such a case, section 69 (4) first requires the relocating guardian (the Respondent in this case) to satisfy this 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 children and the children’s other guardians (in this case the Applicant), persons who are entitled to contact with the children, and other persons who has a significant role in the children’s life. [ 7 ] In this case, the Applicant argues that the proposed relocation is not being made in good faith and is also not in the best interests of these children and therefore should not be allowed.

Under section 69 (6) of the FLA, the court must consider the following factors in deciding whether or not a relocation is being made in good faith: (

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 of the relocating guardian, including increasing emotional well-being or financial or educational opportunities; (

c) whether notice was given under

section 66 [which has occurred in this case]; (

d) any restrictions on relocation contained in a written agreement or an order. [ 8 ] Justice Betton of the British Columbia Supreme Court, in L.J.R. v. S.W.R., 2013 BCSC 1344 , held, at paragraphs [71] and [72] of the reasons for judgement, that positive or negative findings in respect of each of these considerations suggest an inference that the relocating guardian either is or isn’t acting in good faith.

He also held that the four considerations listed in section 69 (6) are not an exhaustive list of what can be taken into consideration in determining whether or not the relocating guardian is acting in good faith. [ 9 ] Even if a proposed relocation is found to be in good faith, section 69 (4) (

b) of the FLA goes on to state that the court must still consider whether or not the proposed move is in the best interests of the child. The move is presumed to be in the children’s best interests unless another guardian satisfies the court otherwise. In deciding questions of whether or not something is in a child’s best interests, section 37 (2) of the FLA requires that “all of a 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. [ 10 ] Section 70 (2) of the FLA requires that if relocation is permitted, the court must seek to preserve existing parenting arrangements to a reasonable extent. [ 11 ] It is this law which must be applied to this case in deciding whether or not to permit the relocation of this child to Airdrie, Alberta.

Summary of Evidence [ 12 ] Both the Applicant and the Respondent are 31 years of age. They met in late 2006 when the oldest child was 18 months old. Shortly after, they shared a home and the Applicant worked for his father, working from a basement suite in the home. The Respondent performed most of the child care responsibilities although the Applicant maintains that he also played a role in caring for the children.

Her estimate is that she “did 98% of the child care.” The parties agree that the Applicant formed a strong bond with the oldest child and although he is not the child’s biological father, he is her father in every other sense of the word. The parties were married in October of 2010 and their son was born the following summer.

For a time during their marriage they lived in Calgary from 2008 to 2011, where the Applicant worked for his father, but they moved back to BC. [ 13 ] The Applicant testified that the plan was for him to work full-time and provide financially for the family, while the Respondent was to remain at home during the time that the children were small and she was to care for them.

He testified that after the parties separated, the Respondent was living in Chilliwack and he would see the children as much as four times per week. [ 14 ] The parties separated in January of 2013 and the children have lived primarily with the Respondent ever since then. Although they were separated, the parties lived in the same home for about a month before the Respondent and the children moved in with her father. This was not the ideal living situation, but the Respondent testified that she had nowhere else to go.

She met her current husband shortly after and they two of them moved into a small apartment in Surrey, BC in April of 2013. The Applicant testified that prior to the Respondent’s move to Surrey the plan was for her to remain living in Chilliwack so that he could see the children easily and frequently. When the Respondent moved the children to Surrey, this adversely affected the Applicant’s ability to see the children.

He testified that this move was made without any formal notice. (The move to Surrey occurred just after the change in legislation in BC from the Family Relations Act to the FLA). [ 15 ] It appears that right from the start the Respondent’s new partner bore considerable animosity toward the Applicant. In what

was either an email or a text message sent by the Respondent’s current husband to the Applicant on February 27, 2013, he begins a lengthy and angry diatribe by calling the Applicant “a low-life lazy careless immature and completely self-absorbed person”. It is unclear how this person was able make this assessment of the Applicant’s parenting at such an early stage in his involvement with this family, or why he thought that sharing this comment would somehow be beneficial for the children.

In the communication, he goes on to give the Applicant an ultimatum with two options and tells the Applicant that if he doesn’t choose correctly, “you will lose your weekdays with” the children. [ 16 ] The Respondent testified that her partner did this without her knowledge or approval and that she has since spoken to him about keeping these opinions to himself. This is at odds with what her husband states in the communication, in which he makes the statement: “[The Respondent] and I have already discussed this.

She knows I am sending you this.” [ 17 ] The Applicant testified that the Respondent began taking advice from her new partner and that she began setting conditions which had to be met before the Applicant could see the children. For example, in an email sent to the Applicant from the Respondent on May 30, 2013, she tells him the following: “[New partner] and I have discussed this and we both feel that some things need to be said and discussed with you. [New partner] will talk to you about these things and until you are ready to discuss this, I cannot let you see the kids or take them .

I support what [new partner] says and he and I have both discussed it… [New partner] is going to be involved in their lives and will be from now on. The decisions that we make about the kids will involve him and his input will be considered my input when making these decisions.

Until you can talk to him about this, the kids stay here. “Once you’ve talked to him, we both need to sign and have a document notarized stating we agree to the terms.” (Emphasis added). [ 18 ] Although the Respondent’s new partner had only been in the Respondent’s life for a few months at this point in time, it appears that the Respondent was intending on placing him on an equal or greater footing with the Applicant when it came to the children. Following the Respondent’s move to Surrey, the Applicant filed an application with this court on July 5, 2013, requesting an order for guardianship and parenting time.

The Respondent filed a Reply on August 16, 2013, in which she agreed with the Applicant’s request for guardianship and parenting time, but sought an order for child support and for spousal support. Curiously, she also asked for a protection order, though in her evidence, she stated that there has never been any family violence in this relationship. No protection order has ever been made. [ 19 ] It appears that the parties worked out an arrangement for the Applicant to see the children because no formal orders were made until December of 2013.

The Applicant testified that for the first month or two, he was seeing the children every weekend. At first the parties shared in the driving required for the Applicant to see the children, but this stopped. The Applicant testified that he wanted to change the schedule, in his words, “so I could have time for myself.” He testified that the Respondent wanted him to sign agreements, and when he refused to do so, the Applicant would deny him time with the children. The Respondent has a different perception of this.

She says that the Applicant was inconsistent in meeting his responsibilities with the children and she wanted a set structure put in place for the benefit of the children. [ 20 ] On December 3, 2013, an order was made by the Honourable Judge G. J. Brown of this court calling for a sharing between the parties of the transportation of the children during visits, with the exchange of the children taking place in Abbotsford.

That order also specified that the Applicant was to have telephone time with the children at least twice per week. [ 21 ] The Applicant testified that communication with the Respondent continued to go poorly. He said that the Respondent continued to want to get her husband involved and that her new husband would want to take over the conversation. He also testified that the Respondent’s husband would make hurtful and negative remarks tending to denigrate the Applicant’s role as father of the children.

For example, the Respondent’s husband told the Applicant “do you enjoy your kids calling me dad?” [ 22 ] The Applicant also testified that the older child was having issues in dealing with the break-up and that he attempted to arrange counselling for the child. He testified that the Respondent pressured the child not to get counselling. He said that he had discussed the issue of counselling with the child, promising the child that she could speak to him in confidence. He asked the Respondent not to tell the child that he had shared what the child had told him, but the Respondent violated that trust.

The Applicant says that the Respondent told the child that the Applicant had told her about what she had discussed privately, and then the Respondent pressured the child by telling her “you don’t need counselling, do you?” As a result, he says that the child is no longer trusting that what she says to him in confidence will remain that way. [ 23 ] The Applicant testified about four occasions when the Respondent denied him his parenting time, either because he would not sign documents that the Respondent wanted him to, or because of plans that she had made with her husband.

This missed parenting time was never made up, according to the Applicant. The Applicant also says that the Respondent is not very diligent in encouraging the children to call him on the phone.

He is concerned that if the Respondent is permitted to take the children to Alberta, she will continue to deny him parenting time capriciously, and that enforcement of any court orders will be more difficult and more expensive because of the geographical distance. [ 24 ] The Respondent says that she has in fact offered extra time for the Applicant to spend with the children, but says that he is the one who does not take advantage of these opportunities. For example, she says that when she went to the Bahamas for vacation, she offered the Applicant the opportunity to look after the children while she was away.

She says that she gave him over a year’s notice of this and that he kept putting off a decision until close to when she left, and then he declined to do so. The Applicant testified that when the Respondent was in the Bahamas, her husband refused to follow the terms of the existing court order and insisted that the Applicant do all of the driving to pick up and return the children. The Applicant says that he was told by the Respondent’s husband that he wasn’t the one bound by the court order and that if the Applicant didn’t like the terms he was setting, the Applicant would not get to see the children.

[ 25 ] In April of 2014 a Family Case Conference was held in this matter, presided over by the Honourable Judge Gillespie. At that time the parties reached agreement that the children would reside primarily with the Respondent and it gave the Applicant parenting time with the children every second weekend. It also set out the time for the Applicant’s telephone times as well as specified parenting time for Halloween, Thanksgiving, Mother’s Day and Father’s Day, over the summer and at Christmas.

By this time the Respondent was living in Langley, BC and the order provided for the exchange of the children to take place at a location in Langley. The order also gave each party parental responsibilities for the children during the time that they were in each party’s care.

The order also set out the amount of child support that the Applicant was to pay to the Respondent and it made provision for each party to take the children to the United States on occasion. [ 26 ] A further order was made on October 17, 2014 by the Honourable Judge Caryer of this court, in which the Applicant was acknowledged to be the guardian of the older child, and in which some other issues were addressed such as day-care and other costs, the sharing of information and the sharing of driving for pick up and drop off of the children. [ 27 ] On November 18, 2015, the Applicant received written notice of the Respondent’s intention to relocate herself and the children to Airdrie.

He filed this application on December 1, 2015 and on December 8, 2015, an order was made by the Honourable Judge B.G. Hoy which provided that neither party was to remove the children outside of the local area without the further order of this court. [ 28 ] The Respondent is presently employed at a dental office where she works for four days each week. She is filling in for an employee who is on a maternity leave. That position will come to an end in February of 2017 and she will have to find new employment. She is not optimistic about her future job prospects in her current location.

Her husband has full-time employment with a traffic control company. [ 29 ] The Respondent says that she wants to move to Alberta so that she and her husband can get ahead economically. They doubt that they will ever be able to afford to buy a house in the lower mainland of BC, and the current housing market makes renting more and more expensive. Recently her husband came into some money from a personal injury settlement and the two of them decided to use the money to purchase a large home in Airdrie. The home is over three thousand square feet and has five bedrooms.

They bought the home, taking a leap of faith that relocating the children would either not be opposed by the Applicant or would be allowed by this court. It is a large home and offers better accommodation for her family than they could ever obtain here under current economic conditions. The Applicant questions how, on the one hand, the Respondent can plead poverty, while being able to free up funds for the down-payment on a house in another province. [ 30 ] The Respondent says that she has a support network in Airdrie.

Her best friend lives there as well as her sister and her mother- in-law (who is living in the home that she and her husband have purchased there.) Neither she nor her husband have any jobs lined up in Airdrie, but the Respondent is confident that finding a job will not be a problem for them. She says that her husband has very broad work experience and a number of marketable skills. She is also confident that she will find employment because her friend’s father is a dentist who she believes would hire her.

The Respondent proposes that she and her husband would remain in Langley and stay in their current jobs until each has found employment in Alberta, and then they would transition themselves to their new home. [ 31 ] The Applicant points out that the parties lived in Alberta previously, but that they moved back to BC because the Respondent missed her family. He is concerned that if the Respondent was allowed to move, two adverse consequences might follow.

Firstly, it would be even more difficult for him to seen the children because the Respondent and her husband would be emboldened by the fact that the cost of enforcing an order in Alberta would make it more difficult for the Applicant to do anything about a denial of parenting time. Secondly, he is concerned that this move may ultimately become a springboard for another move even further away. He says that the Respondent has talked about moving to Europe, but she says she has no plans to do so. [ 32 ] The Respondent maintains that a move would be better for her children.

She says that she has researched schools in Airdrie and that schools there have a better teacher to student ratio and smaller class sizes. She says that the cost of living is lower there and taxes are also lower. She believes that her family’s support network would be better in Alberta. Her husband’s mother would live in the home to assist with child care and with meeting household expenses. She says that the Applicant also has family there. She believes that his father is in Medicine Hat, Alberta, and that he has a brother in Calgary.

The Applicant testified that his father no longer lives in Alberta and has moved to the Philippines. His brother does not know really these children and he travels extensively in the course of his job. [ 33 ] The Respondent believes that if she was permitted to relocate the children to Alberta, they could still end up spending a great deal of time with the Applicant. She proposes that the children have a dedicated phone line to communicate with the Applicant, that they stay with him over their summer vacation, their spring break, and, in her words “as much time as he wants” during holidays.

She proposes that the cost of transporting the children for such visits be shared equally between the two of them. She adds that the fact that she provided sixty days’ notice as required by law and that she has not moved without a court order are both strong indicators of her good faith. [ 34 ] The Applicant has entered into a new relationship with a young woman who has two children from her previous relationship. She is a full-time caregiver to those children, two daughters who are ages 8 and 4 and she presents as a very calm and reasonable person.

The Applicant and his new partner have purchased a home together in Chilliwack. If the Respondent insists on moving to Alberta, the Applicant and his partner are willing to have these children reside with them. [ 35 ] The Applicant acknowledged in cross-examination that while he has had the opportunity to spend much of his free time with the children, he hasn’t always taken advantage of those opportunities. For example, last year during the two weeks that he was on vacation, the children spent one of those weeks at his mother’s home.

He was unable to recall for certain, but acknowledged that the same thing may have occurred in 2014. [ 36 ] The children have not been independently canvassed about what they think about possibly moving to Alberta, although the Applicant concedes that the older child is “excited to pack and unpack boxes” while the Respondent claims that the child wants to move to Alberta and is excited at the prospect of doing so. [ 37 ] The Applicant’s mother enjoys a good relationship with the children. She sees them not only during her son’s parenting time,

but also on other occasions that she arranges with the Respondent. She described the activities that the children do when they are in her home including crafts. The Applicant’s mother and the Respondent began to communicate directly on a regular basis after the Respondent’s wedding, though in the two months prior to this hearing, they have not done so.

The Applicant’s mother is concerned that if the children are relocated to Alberta, she would rarely get to see them and would lose the close relationship that she now has with them. [ 38 ] The Applicant’s fiancée lives with him and they plan to get married in September. They have lived together since June of 2015. She testified that she gets along very well with the children, but that she is very much aware of her role as their father’s new partner, and she is less assertive than the Respondent’s husband appears to be in wanting the type of authoritative role that he appears to be trying to establish.

She sees her role in their lives as being someone who, in her words, wants to “care for them and treat them good and give them love and attention.” She and the Applicant have taken the children to Osoyoos for vacation during the past two summers and she will also pick up or drop off the children if the Applicant is unable to do so because of his work. [ 39 ] The Applicant’s fiancée testified that on one occasion the Respondent and her husband acted very uncivilly when they swore at her and at the Applicant and when the Respondent grabbed her by the throat.

She testified that the Respondent later apologized to her for this behaviour. She also testified that these children have a good relationship with her children and that the two youngest children are particularly close. Analysis [ 40 ] It is not in issue that the Applicant’s contemplated move of the children falls within the definition of “relocation” under

section 65 of the FLA. A move of this distance is clearly a change “that can reasonably be expected to have a significant impact on the child’s relationship with” the Applicant as well as with “one or more other persons having a significant role in the child’s life.” Besides the Applicant, the move would also significantly change the children’s relationship with their paternal grandmother and with their new siblings.

For the Applicant to travel about 950 kilometres to Airdrie to see these children, or vice versa, is certainly something that would reasonably be expected to have a significant impact on the children’s relationship with the Applicant and with his family members. [ 41 ] The evidence satisfies me that the Respondent has complied with

Section 66 of the FLA. She has given proper notice to the Applicant at least 60 days in advance of the proposed move. That notice was given in a letter dated November 18, 2015. [ 42 ] It is unclear what efforts, if any, have been made by the parties, as required under

section 67 of the FLA to resolve any issues arising from the proposed relocation. The Respondent testified that she attempted to make concessions, but no compromise could be reached. The Applicant has brought this application under

section 68 asking for an order prohibiting the relocation of the children. In this case the parties do not have substantially equal parenting time with the children.

In this case the children are in the care of the Respondent for a majority of the time and section 69 (4) of the FLA requires the Respondent to satisfy this court that: the proposed relocation is made in good faith; and that she has proposed reasonable and workable arrangements to preserve the relationship between the children and the Applicant, as well as with others who have a significant role in the children’s life. [ 43 ] Under section 69 (6) of the FLA, several factors must be considered in deciding whether or not this relocation is being made in good faith.

The first factor is the reason for the proposed relocation. I am satisfied that the Respondent genuinely believes that things will be better for herself and for her family economically if the family move to Alberta. What is less clear is whether or not her subjective belief is reasonable under the circumstances. If allowed to move, the Respondent and her husband would leave the certainty of their current employment, without any definite employment to go to. The Respondent is confident that she and her husband would easily find comparable employment in Alberta.

No evidence has been presented from either party to suggest whether or not this is a safe assumption or whether acting on this assumption places the economic well-being of the children at risk. [ 44 ] The second consideration is whether the proposed relocation is likely to enhance the general quality of life of the children and of the relocating guardian, including increasing emotional well-being or financial or educational opportunities.

The Respondent testified that, according to her investigation, the quality of education that the children would receive in Alberta would be better because of a better student-to-teacher ratio and a smaller class size. No evidence was presented as to what school the children would attend or what the class sizes or student-teacher ratios at that school are.

The Respondent asks that everyone should have faith in her conclusion without presenting the evidence on which that conclusion is based. [ 45 ] The evidence does tend to support the conclusion that if the children were allowed to relocate to Alberta, they would live in a bigger and nicer house. It is unclear whether or not the household would be better off financially because no one has any idea what jobs the Respondent and her husband would be able to find and what income would be earned from those jobs.

There is evidence however that there would be another person (the Respondent’s mother-in-law) to help share in the household expenses. [ 46 ] There are concerns that present themselves about how the children’s emotional well-being might be affected if the move is permitted. It is clear from the evidence that the Respondent’s husband has shown little respect for the Applicant’s role as the father of these children. This was very apparent from his initial communication of February 27, 2013 in which he saw fit to insult the Applicant’s parenting so strongly, despite being new on the scene himself.

The Respondent claims that this attitude has lessened, but her husband’s more recent actions do not support this conclusion. His immature and spiteful remarks to the Applicant about how the children were now calling him “daddy” and his unwillingness to follow the court order when the Respondent was away give rise to concerns that the Applicant’s role as the parent of these children will be further denigrated and eroded by the Respondent’s husband if the children have less frequent contact with the Applicant. [ 47 ] The next consideration is whether notice was given under

section 66 of the FLA, and while this has occurred in this case, notice was given after the Respondent and her husband had purchased their new home. That the move would take place was considered by them to a foregone conclusion, and notice to the Applicant was seen as a mere formality, rather than as part of a genuine consultative process between guardians. [ 48 ] At the time that the notice to move was given, there were no restrictions on relocation contained in any written agreement or in

any court order. [ 49 ] Section 69 (4) (

b) of the FLA goes on to state that the court must also consider whether or not the proposed move is in the best interests of the child. The move is presumed to be in the child’s best interests unless another guardian satisfies the court otherwise.

In considering whether this move is in these children’s best interests, a consideration of the factors set out in section 37 (2) of the FLA is required. [ 50 ] It is difficult to determine if the children’s health and emotional well-being is enhanced by the move, because much of what life would be like for them in Alberta is speculative, other than that they would live in a bigger house.

But they would also not be able to maintain the same regular relationship with their new siblings and with their paternal grandparents. [ 51 ] The children's views have not been independently canvassed, although the Applicant concedes that his daughter is excited at the prospect of packing and unpacking boxes. These children have been through a number of moves before and appear to be quite resilient. It is unfortunate that no independent party has been able to hear their views on the subject.

The Applicant says that the Respondent sabotaged the opportunity for his daughter to speak to a counsellor, and whether or not this is the case, it is unclear what the children genuinely think about this move and about the prospect of seeing their father, his family and their new siblings much less frequently. [ 52 ] The children have significant relationships with other significant persons here in BC. Not the least significant of these is the relationship with the children of the Applicant’s fiancée, soon to become their siblings. The proposed move will not allow this bond to develop.

As counsel for the Applicant pointed out in submissions, the move proposes that the children leave behind frequent contact with the Applicant, his mother and his fiancée’s family, while the only support network gained in Alberta would be a best friend of the Respondent and the Respondent’s sister-in-law.

Children’s lives are enriched by a good support network of loving family members, and on balance, it appears that their support network is greater in BC than in Alberta. [ 53 ] The history of the child's care clearly shows that throughout their life, the Respondent has done what I like to call “the heavy lifting.” She has taken on the majority of the child care responsibilities. Conversely, the Applicant has not been diligent about maximizing the time available for him to spend with the children. Initially in the relationship, the amount of time that he spent with the children was decreased at his request.

His reason for doing so, namely “so I could have time for myself”, is not an especially compelling reason and it shows disordered priorities. It is unclear to what extent things have changed in recent years because it appears that there have been times that he has not taken advantage of all of the parenting time available to him. [ 54 ] The best interests of children take into account their need for stability, given each child's age and stage of development.

It is not clear whether or not the children would have a more stable life here or in Alberta because there are too many unknowns about what life would be like for them there, aside from the fact that they would be further away from other adults in their life who currently form part of their support network. [ 55 ] Both parties are able parents when it comes to caring for the children and exercising parental responsibilities for the children. If it was a contest, the Respondent would win that contest because she has done the lion’s share of work when it comes to raising these children.

But both are able and capable parents and no serious concerns were raised about either party’s parenting skills. [ 56 ] Fortunately for this family, family violence appears to have never been a part of the children’s lives. Aside from the incident described by the Applicant’s fiancée, the parties appear to have agreed on the importance of the children's safety and security. In the incident described, the Respondent had the maturity to later apologize for her loss of control.

There have never been any civil or criminal proceedings for this family concerning the children's safety, security or well-being, according to the evidence presented. [ 57 ] One of the other considerations in determining what is in children’s best interests is the appropriateness of any arrangement that would require the child's guardians to cooperate on issues affecting the child. This is a factor on this application because if the move of the children is permitted, the success of such an arrangement relies on the cooperation of the Respondent and her spouse to honour that arrangement.

This is problematic because the Respondent’s spouse has demonstrated the practice of making ultimatums and of making it clear that he doesn’t consider court orders to be binding. [ 58 ] On a consideration of all of these factors, there are substantial competing factors both in favour of, and against permitting the relocation of these children. The chief factor in support of allowing the move is in recognition of the Respondent’s effort as primary caregiver throughout their lives. She has made considerable sacrifice for her children and should be recognized and respected for doing so.

If the evidence was clear that the proposed move would improve the children’s lives, permitting the move may not be so controversial. [ 59 ] There are a number of factors which support the conclusion that this move is not made in good faith and would not be in the children’s best interests. Firstly, the Respondent has a very tentative plan for what life would be like for the children in Alberta. She and her husband do not have jobs there and it is unclear what level of support the children would have.

Aside from the fact that they would live in a bigger home, the picture of what life would be like for the children in Airdrie is unclear, other than that the Respondent has faith that things would be better for them. They would be trading a known for an unknown, and the only thing that is certain is that it would be more difficult and more expensive for the Applicant to maintain his relationship with the children. [ 60 ] A huge concern about the move is that it would undermine the children’s relationship with the Applicant. These children are entitled to develop a good relationship with both of their parents.

The Respondent’s husband has demonstrated a pattern of denigrating the Applicant’s relationship with the children, beginning with his early communication of February 27, 2013, his taunting and hurtful remarks to the Respondent in which he expresses the intention to replace the Applicant in the lives of the children, and his refusal to follow court orders. While the Respondent claims that this behaviour has been corrected, the evidence suggests otherwise.

If the children were moved to another province, it would be more difficult and more expensive for the Applicant to protect the children’s right to a meaningful relationship with both parents and would enable further erosion of his place in the children’s lives. [ 61 ] While the Respondent is correct that she has followed the law in giving proper notice to the Applicant rather than using self- help, her actions in purchasing a house in Alberta before fully complying with the law, under the assumption that the move of the

children was a slam dunk, does not demonstrate good faith on her part. It may be that she was not the dominant force in making this decision. Nevertheless, the fact that this was done before the issue of relocation was decided according to law demonstrates a disregard for the children’s right to maintain a strong relationship with both parents. [ 62 ] The Respondent argues that if the relocation is allowed, the cumulative time that the Applicant gets to spend with the children may actually be greater as long as he chooses to exercise all of it. This argument ignores a number of factors.

Firstly, the Applicant’s contact with the children would be less frequent. Secondly, the net result would actually be less quality time for the Applicant with the children because much of the time under the proposed scheme would occur when the Applicant was at work. It would be much more difficult for the Applicant if the Respondent or her husband decided that they were going to refuse to let the Applicant see the children unless some ultimatum was met, as has occurred in the past. It would also be much more expensive for the Applicant to see his children under all circumstances.

In the final analysis, it cannot be safely concluded that the scheme proposed by the Respondent actually would result in more chronological time for the Applicant with the children. [ 63 ] Another factor suggesting that the proposed move is not in the best interests of the children is the effect that it would have on their relationship with other significant persons in their lives. It would mean that their relationship with their new siblings would be much more restricted.

They would see their grandmother much less often, especially if the Applicant was unable to see the children as much as the Respondent proposes because of economic or enforcement reasons. Their relationship with their new siblings would be impeded. [ 64 ] Balancing all of these factors, I find that the proposed relocation is not in the best interests of these children.

The factors against the move (i.e. uncertainty of circumstances in Alberta, potential alienation, loss of ties to significant persons in the children’s lives, and inadequate alternate arrangements) outweigh any potential benefit to the children’s best interests that might flow from permitting the move. Accordingly, the application by the Applicant to prohibit the relocation of these children is allowed.

Order [ 65 ] For the foregoing reasons, it is ordered that the proposed relocation of the children, K.S.J., born (d.o.b.), 2005 and T.C.A. born (d.o.b.), 2011, to the Province of Alberta by the Respondent M.L.J. is prohibited, pursuant to section 69 (2) of the Family Law Act . Dated at the City of Abbotsford, in the Province of British Columbia this 15 th day of June, 2016. ______________________________________ (The Honourable Judge K.D. Skilnick)