S.F.D. v. A.L.B., 2020 BCPC 76

Citation: S.F.D. v. A.L.B. 2020 BCPC 76 Date: 20200414 File No: F172492 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.F.D. APPLICANT AND: A.L.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.J. BROWN

Appearing in person: S.F.D. Counsel for the Respondent: K. Naslund Place of Hearing: Abbotsford , B.C. Date of Hearing: February 24, 25, 27,2020 Date of Judgment: April 14,2020 INTRODUCTION [ 1 ] In this proceeding, I must determine what is in the best interests of a four-year-old boy named R.

He is described as an energetic and smart youngster. [ 2 ] Spring is upon us, and notwithstanding the suspension of regular court activities due to the COVID-19 virus, I am providing this decision to the parties now so there will be some certainty about R.’s residence and school for this fall. [ 3 ] Although R. was born on the Sunshine Coast, he now lives primarily with his mother, A.B., in Abbotsford, BC. His father, S.D., resides near Sechelt on the Sunshine Coast, and he sees R. most weekends. By an application filed June 12, 2019, Mr.

D. seeks to vary past orders so that he would have primary residence of R. [ 4 ] The mother, of course, seeks to preserve the status quo, and she also seeks increased child support. [ 5 ] The father’s application is to vary a prior order under s.47 of the Family Law Act (FLA), but the case is in reality a relocation case. Mr. D. is seeking to relocate R. back to the Sunshine Coast, whereas Ms. B. is effectively seeking a final guardianship order confirming R.’s move of residence to Abbotsford. [ 6 ] This is a difficult decision as both parties have their strengths and their challenges. Ms.

B. has had R. in her primary care for the last 2 years, and the boy has established a routine in Abbotsford. However, concerns have been raised about her ability to provide for R. and about the fact that her 2 older children are not in her care. [ 7 ] Mr. D. has a good home in the Sechelt area with lots of support from his family and his spouse. However, he has a history of reporting the mother to the Ministry in an attempt to gain advantage.

Furthermore, he has withheld R. from his mother for about a month in the late summer of 2019. [ 8 ] The problem common to both parties is their acrimony and resulting lack of communication. There has been plenty of police involvement, and currently, Ms. B. faces an uttering threats charge concerning Mr. D.’s spouse. She is bound by a no contact order with some exceptions, and both parties have been bound by no contact orders in the past. It appears that each party has used the police to disrupt the life of the other.

HISTORY OF THE RELATIONSHIP AND THESE PROCEEDINGS [ 9 ] The parties began a relationship in the summer of 2014, and they moved to the Sunshine Coast on October 31, 2014. R. was born on [omitted for publication]. Ms. B. also had care of her older son, H.M., born [omitted for publication], and Mr. D. helped care for him. [ 10 ] The parties separated for the last time in January of 2018, although some court orders predate that final separation. [ 11 ] By an interim order granted August 17, 2017, Mr. D. was required to pay child support of $312 per month based on an income of $34,000. [ 12 ] In December of 2017, Mr.

D. filed an application to prohibit the mother’s move to the Lower Mainland, but that application was never served. In January of 2018, Ms. B. filed an application to reside with the 2 boys in the Lower Mainland, and she in fact relocated to the Lower Mainland with both boys. [ 13 ] By order granted by Judge Rodgers on February 15, 2018, Mr. D. was granted parenting time with R. for 3 consecutive weekends with Ms. B. bringing R. to the Langdale ferry terminal at the start of his visit, and Mr. D. bringing R. to the Horseshoe Bay ferry terminal at the end of the visit.

This order was phrased as a final order, but when I listened to the reasons of Judge Rodgers, the order was clearly intended to be interim. [ 14 ] On March 7, 2019, Judge Merrick varied Judge Rodgers’ order to allow Mr. D. parenting time every weekend with the same travel arrangements. Neither party was to change R.’s residence from the Lower Mainland. This order was phrased as a final order. [ 15 ] A number of procedural orders were made, and the trial before me was ordered to be held in Abbotsford until it was concluded.

I will deal with the location of the court file at the end of these Reasons. [ 16 ] On September 27, 2019, Judge Gunnell ordered, on an interim basis, that the mother and father have set parenting time, after the father had withheld R. from the mother since August 25, 2019. Mr. D. was concerned that Ms. B. was physically abusing R. Both parties were prohibited from using corporal punishment. [ 17 ] By Judge Rounthwaite’s interim order granted October 31, 2019, the father’s parenting time reverted back to every weekend.

The parents were to share the responsibility for transporting R., but where that was not possible, the father was responsible for the transportation. [ 18 ] H. has not been in Ms. B.’s care since the summer of 2018, and that boy resides with his father, J.C. Ms. B. was in fact subject to a Ministry supervision order regarding H. which only allowed her supervised visits for a period of time. Ms. B. has not had primary

care of her daughter since she was 12 years old, some 5 years ago. [ 19 ] The parties have been involved with the police in both Sechelt and Abbotsford, and they both have been subject to peace bonds. THE FATHER’S EVIDENCE [ 20 ] Mr. D. began dating Ms. B. in May of 2014, but he knew her since elementary school. When he began the relationship, Ms. B. had care of H., who was then 6 or 7, and K., who was then 11 or 12. [ 21 ] Mr. D. testified that Ms. B. had previous boyfriends and acquaintances involved in the illicit drug activities. Also, in the Lower Mainland, Ms.

B. had a tendency to allow “tent city people” into her home, as well as a friend named J., a known drug user. Ms. B. asserted that these people were no longer part of her life. [ 22 ] Nevertheless, K. ended up living with her father when she was 12. It is alleged that K. was afraid of some of Ms. B.’s friends, and even that she was sent by her mother to retrieve illegal drugs. [ 23 ] In 2015, Mr. D. and Ms. B. decided to move to the Sunshine Coast. There was less crime in that area, and Ms. B. could distance herself from these “friends.” Mr. D.’s father and much of the Italian side of the family resided there.

However, even on the Sunshine Coast, Ms. B. suggested selling drugs to supplement the family income. [ 24 ] The parties’ relationship was a rocky one. Mr. D. said that Ms. B. used drugs like cocaine periodically. He saw her with a drug pipe in 2017, and he has never been convinced of her abstinence, notwithstanding a clean drug screen in January of 2018. [ 25 ] After R.’s birth in [omitted for publication] of 2015, Ms. B. befriended some tenants, and Mr. D. again had concerns about Ms. B.’s drug use. [ 26 ] Mr. D. has no criminal record.

However, the Sechelt RCMP were involved with the couple as a result of several incidents. According to Mr. D., Ms. B. was charged with assaulting him on two different occasions, and he was charged once for spitting at her. These incidents resulted in mutual peace bonds with no contact orders which were not always followed. [ 27 ] Mr. D. began to realize his relationship with Ms. B. was toxic, so there was a decision to separate in December of 2017. However, he did not expect her to leave the Sunshine Coast with R. and H. He did not believe that Ms.

B. had supports in the Abbotsford area, and she could not rely on her mother. [ 28 ] Since the court order of Judge Rodgers in February of 2018, Mr. D. and his family have been largely responsible for transporting R. to and from the Sunshine Coast. He spends about $250 per weekend in travel costs. [ 29 ] Mr. D. works full time as a drywall contractor. He earns just under $50,000 per year gross, but he has not filed a tax return for several years. His current partner, J.B., works part time.

He rents a 3 bedroom home in the [omitted for publication] area, and there is an elementary school and a preschool nearby. [ 30 ] The father has no substance abuse issues. He says that R. gains weight while in his care, and he is a good provider. He is concerned that R. looks pale and has mouth sores. [ 31 ] Mr. D. has a close relationship with not only R. but also his older brother, H. He sees H. at least once per month when exercising parenting time with R. H. does not even communicate with his mother, Ms. B. Mr. D. is aware that the Ministry had concerns about Ms. B. physically abusing H.

He has personally witnessed Ms. B. pulling H. by his ear. [ 32 ] Mr. D. admitted he made a complaint to the Ministry in June of 2019 regarding R.’s disclosure that Ms. B. twisted his ear. Mr. D. later withheld R. from Ms. B. between August 25 and September 27, 2019. He says he was not then aware that the Ministry had determined that the earlier complaint was unsubstantiated. Mr. D. felt that R. made no disclosures to the Ministry because he was not comfortable doing so. The father has made other complaints to the Ministry about Ms. B. [ 33 ] Mr.

D. admitted that both boys witnessed some physical altercations between the parties. He says he was not the aggressor. FATHER’S WITNESSES [ 34 ] A.W. is Mr. D.’s sister and she lives in Langley, BC. She has a close relationship with R. and is involved in assisting with the exchanges of R. She believes her brother is in the best position to provide R. with the necessities of life as well as love and affection. [ 35 ] Ms. W. has a number of concerns about Ms. B.’s care of R. First, she believes Ms. B. resides in an area of Abbotsford frequented by drug addicts, and the back gate is insecure.

Secondly, R. tells her that his mother does not play with him. R. is also constantly sick and he has cold sores on his lip. His clothes are inappropriate for the weather. [ 36 ] C.B. is Mr. D.’s mother and R.’s paternal grandmother. She regularly assists in picking up R. on Fridays and returning him on Sundays. Although she resides in the Lower Mainland, she feels R. would be better off in Sechelt where there are many extended family members. Mr. D. resides in a nice home. [ 37 ] Ms. C.B. is worried that Ms. B.’s home is in disarray - there was a report of maggots in her apartment. Ms.

C.B. has actually assisted Ms. B. in laundering clothes. She has also provided financial assistance for items such as Tylenol, Pedialyte, and dental bills. Ms. C.B. does not mind assisting Ms. B., but she wonders about her support system. [ 38 ] Like Ms. W., Ms. C.B. is concerned that there are people coming and going from the mother’s apartment, including recovering drug addicts.

[ 39 ] Ms. C.B. testified that in June of 2019, R. told her that his mom grabbed his ear and twisted it. She believes R. is reluctant to return to his mother’s home after visits. [ 40 ] Ms. C.B. did agree that her husband, M.D., got in an altercation with Ms. B. in August of 2018 when Ms. B. was attempting to pick up the boys. The police were called, and Mr. D. ended up being arrested for threatening the police with some sort of taser. Mr. D. was also arrested on a breach file. [ 41 ] J.B. has been in a relationship with Mr. D. since October of 2018, and they have lived together since December of that year.

She is in fact the complainant in a criminal file where Ms. B. stands accused of uttering a threat, so Ms. B. has been ordered to have no contact with her. Ms. J.B. has never met Ms. B. which is indeed unfortunate, given that the parties are attempting to co-parent R. [ 42 ] Ms. J.B. says that R. loves her and he is a very affectionate child. When R. visits with them, his brother H. will often be there. They had daycare set up for R. when they had extended care of him from August 25 to September 27, 2019. [ 43 ] Like most of Mr. D.’s family, Ms. J.B. remains concerned about Ms. B.’s care of R.

R. often complains he does not get enough food at his mother’s home, and he is frequently sick. Ms. J.B. shares the concern that Ms. B. was twisting R.’s ear. She agreed that she and Mr. D. withheld R. in the late summer of 2019, but they felt the child was in danger. She understood that the ministry investigation was inconclusive. [ 44 ] D.K. is Ms. B.’s aunt, but she testified for Mr. D. She disapproved of Ms. B.’s lifestyle choices, her unstable home life and the inappropriate people in the home. She felt Mr. D. was not getting proper visitation. THE MOTHER’S EVIDENCE [ 45 ] Ms. B. agrees with Mr.

D. that they first met in elementary school, and that they lived together as a couple from late October of 2014 until January of 2018. R. was born on [omitted for publication], after they had moved to the Sunshine Coast. [ 46 ] However, Ms. B. disagrees with Mr. D. about the reasons for the discord in the relationship. She felt that tensions arose because she regularly found other women’s garments in their home. On one occasion, she asked Mr. D. if he was a pedophile because she believed he was having a relationship with a much younger female.

It was on that occasion that he spat at her while she was holding R. [ 47 ] The discord between the parties resulted in a number of police files. In Sechelt, the police were called 3 or 4 times, and Ms. B. sought help from the Ministry because of the domestic violence. [ 48 ] When the parties lived in Sechelt with R. and H., Ms. B. was the primary caregiver and she collected the child tax benefits. She worked periodically, but Mr. D. was the main wage earner doing drywall work. Ms. B. cared for R. during the day, and she cared for H. after school. Ms. B. agreed that Mr.

D. was an attentive father when he was home. [ 49 ] According to Ms. B., the parties lived in a number of rental homes on the Sunshine Coast. They first lived at the home of Mr. D.’s uncle while Mr. D. was taking over his aunt’s business. Mr. D.’s father lived downstairs, and Ms. B. claims that this father threatened her with a knife when she refused to transfer some of her insurance settlement money to the business. The parties then moved to the [omitted for publication] area. [ 50 ] In January of 2018, Ms. B. left Sechelt to return to the Lower Mainland.

She had been living alone with the boys in Sechelt in rental accommodation, because the parties were then each bound by no contact orders arising from peace bonds. She was being evicted for non-payment of rent, and she had very little notice of the eviction as the landlord was dealing with Mr. D. [ 51 ] Due to the no contact order, Ms. B. did not give Mr. D. proper notice of the move to the Lower Mainland, but he was aware of the move. He took some items in the midst of the move and had a brief visit with R. [ 52 ] When Ms.

B. returned to the Lower Mainland, she first lived with her girlfriend and then in a transition home with R. and H. Ever since June of 2018, she has been living in a 2 bedroom apartment near [omitted for publication] in Abbotsford. Her gate latch is out of R.’s reach and is padlocked unless she is expecting visitors. She now works as a community support worker but also receives income assistance. [ 53 ] Ms. B. generally believes Mr. D. to be a good father, but she has concerns. During one dispute between the parties, he took her keys and tried to place them in H.’s pocket. She wanted H. to go to his room, but Mr.

D. involved H. in the dispute. On another occasion, R. was in his father’s care when he sprayed himself with chemicals. He was taken to the hospital without the mother’s knowledge. [ 54 ] Ms. B. describes R. as a “sweetheart.” He goes on outings to places like [omitted for publication] and he attends [omitted for publication] daycare. She does play with R. and he rides a bike. He has friends in the townhouse complex and at daycare. An elementary school is nearby. [ 55 ] Ms. B. has asked for extra assistance from Mr. D.’s family as money is tight, and to their credit, his family has obliged.

Recently, C.B. did help her when R. was projectile vomiting. [ 56 ] Ms. B. concedes that she and her daughter, K., started to clash in 2014, and K. has been living at her father’s home in the Langley area ever since. Ms. B. denied ever sending K. to a vehicle for a drug deal. Ms. B. has a good relationship with her daughter now, and she sees her often. [ 57 ] K. wrote an email on September 17, 2019, which I am admitting as evidence under s. 202(

a) of the Family Law Act . That

section allows me to admit reliable hearsay evidence of a child who is absent. In the email, K. indicates that her mother can get “overly frustrated” sometimes, but she was never physically abused by her mother and she never saw her mother abuse her brothers. Her mother cares about her brothers and their basic needs.

[ 58 ] In the summer of 2018, when H. was 11 years old, the Ministry became involved with Ms. B. The Ministry developed a safety plan placing H. with his father. Ms. B. believes that Mr. D. coached H. to say that she was an angry person who pulled H.’s ears. Ms. B. denied pulling H.’s ears and said that she only grounded him. [ 59 ] A CFCSA supervision order was granted on March 5, 2019, for 3 months. That order only permitted Ms. B. supervised visits with H. H.’s father refused to accept any proposed supervisors, so Ms. B. has been effectively blocked from seeing H. Mr. D. does see H. regularly, but Ms.

B. feels that he is alienating H. from her. [ 60 ] On August 9, 2019, Director’s counsel wrote a letter indicating that the Ministry is not opposed to Ms. B. having unsupervised parenting time with H. This has not yet occurred. Ms. B. has undertaken counselling and taken other steps to address previous concerns. [ 61 ] Ms. B. has been very open with R. seeing Mr. D. every weekend. Occasionally, Mr. D. cannot pick up R. because of work or other commitments. She agrees she cannot provide transportation for the father’s visits as she does not have a reliable vehicle. As indicated earlier, Mr.

D.’s family does assist with the transport of R. The trip from Abbotsford to Sechelt by ferry is about 2 and one half hours one way. [ 62 ] Ms. B. indicated both in her testimony and affidavit material that Mr. D. withheld R. from her on 2 occasions. First, when she had just moved to the transition house in the Lower Mainland, Mr. D. did not return R. after his weekend visit. Judge Rodgers’ order of February 15, 2018, was then granted allowing the mother to be the caregiver during week days. [ 63 ] Of greater concern, Mr. D. withheld R. from Ms. B. from August 25 to September 27, 2019.

The Ministry complaint about the mother twisting R.’s ears was made in June of 2019, and that complaint was unsubstantiated. Ms. B. did not even get FaceTime visits during this time of withholding. By Order granted September 27, 2019, Ms. B. was given parenting time but neither party was to use corporal punishment. [ 64 ] Mr. D. or his family has made a number of complaints to the Ministry about Ms. B.’s parenting. Soon after Ms. B.’s move to the Lower Mainland in January of 2018, it was alleged that she was living with a drug dealer. Social Worker L. found no concerns, and a urine drug screen collected from Ms.

B. on January 9, 2019 was negative for all substances except marihuana. Ms. B. does not use marihuana in the presence of her children. [ 65 ] Ms. B. also says she has not allowed any questionable people, such as J., into her home in Abbotsford. She maintained that a meth pipe found in her purse belonged to someone else. [ 66 ] On June 24, 2019, the Ministry received a report that Ms. B. twisted R.’s ears. According to Ms. B., R. told her that his Dad and his paternal grandmother told him to say that. Ms. B. testified that she does not physically discipline R.; she talks to him and gets down to his level.

Outreach Worker W.O. provides her with parenting coaching. Ms. B. submits that R. should never have been withheld from her in the late summer of 2019. [ 67 ] Another Ministry report was made September 19, 2019, and Ms. B. believed it concerned her pushing R. in a store. As outlined in a Ministry letter dated September 27, 2019, the complaints of June and September 2019 were not substantiated. The letter was admitted into evidence as it was addressed to Ms. B., and a social worker did testify at this hearing as indicated below. MOTHER’S WITNESSES [ 68 ] Social Worker K. was involved with Ms.

B. from April of 2019 onwards, although the Ministry had applied for and obtained a supervision order prior to her direct involvement. [ 69 ] Social Worker K. testified that there had been a history of domestic violence between Ms. B. and Mr. D. As well, there was the report in the summer of 2018 that Ms. B. physically abused her older boy, H., who was then 11 years old. A safety plan was first put in place, and as I indicated earlier, a supervision order was granted by consent on March 5, 2019, under CFCSA file 18245. That supervision order included the following conditions: 1. Ms. B. and Mr.

D. were to have no contact with certain exceptions; 2. No one caring for the children was to be under the influence of drugs; 3. H. was to continue to live with his father, J.C., and Ms. B. was to have supervised access to that child. R. continued to live with her during the week. [ 70 ] Social Worker K. herself received 3 reports of concerns. The first 2 reports alleged Ms. B. pulled R.’s ears, and the third report alleged that Ms.

B. used intoxicants while caring for R. and that drug dealers frequented her home. [ 71 ] With respect to these reports, there was insufficient evidence to substantiate the complaints. Regarding the ear pulling, there was a concern R. could have been coached. There was also no evidence to substantiate the drug concerns, and Ms. B. had taken appropriate steps about people in her home. [ 72 ] Social Worker K. simply allowed the supervision order to lapse in June of 2019 because Ms. B. was engaging in services.

She had an outreach worker, and she met regularly with the Ministry about counselling, daycare for R., and child development. [ 73 ] The ministry was not opposed to Ms. B. having unsupervised parenting time with H. Unfortunately, Ms. B. had difficulties with H.’s father in securing any visits with H. [ 74 ] W.O. was Ms. B.’s outreach worker from the Fall of 2018 to March of 2019, and then from August to mid-December of 2019. She testified that the first referral primarily involved H. who was no longer in Ms. B.’s care. The second referral was to assist Ms. B.

with parenting issues with R. [75] Ms. O. felt that Ms. B. was very attentive to R.’s needs. She was encouraging Ms. B. to be a little more firm with R. She notedthat communication between R.’s parents was poor due to a no contact order and the geographic distance between the parties. THE APPLICATION TO VARY [76] As outlined in the introduction, Mr. D. is seeking to vary the order of Judge Rodgers granted February 15, 2018, so that hewould have the primary residence of R. in the Sechelt area. Judge Merrick’s order of March 7, 2019, made a small variation to JudgeRodger’s order by granting Mr.

D. parenting time every weekend. Both orders were entered as final orders, but the intention was thatthere would be a full hearing about R.’s move to the Lower Mainland with his mother. [77] Judge Gunnell made an interim order on September 27, 2019, after Mr. D. had withheld R. On October 31, 2019, JudgeRounthwaite essentially had the parties return to the March 7, 2019 order, and the travel arrangements were varied. [78] This case is really a relocation case.

The issue of the mother’s move with R. to the Lower Mainland and the father’s wish toreturn R. to the Sunshine Coast has never had a full hearing until now. [79] Nevertheless, because Mr. D. phrased his application number 38 as an application to vary Judge Rodger’s order, I amcompelled to address it first.

Section 47 of the FLA allows for a variation of an order respecting parenting arrangements if I am satisfiedthat, since the making of the order, there has been a change in the needs or the circumstances of the child, including because of a changein the circumstances of another person. The case law requires the change to be a significant or material one (Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27). [80] Although this case is truly a relocation case, I am satisfied there have been a number of significant changes in R.’s life sinceJudge Rodger’s order back in February of 2018. Mr.

D. has at least made out the threshold test under s. 47. Those changes include: 1. R. is about to enter kindergarten and prior parenting arrangements will require adjustment, or if Mr. D. is correct, a wholesalechange; 2. Although Ms. B. has been in the Lower Mainland with R. for the last 2 years, there are changes in her circumstances. She isnow in a more stable rental accommodation but she has less reliable transportation for R.’s trips to the Sunshine Coast; 3. The Ministry has intervened concerning her older son, H.; 4. Mr.

D. has a new partner and suitable residence near Sechelt. [81] Having been satisfied that Mr. D.’s application meets the threshold test under s. 47, I would ordinarily then determine what is inR.’s best interests directly. However, as I have stated, the application is really about relocation, so I will consider R.’s best interests inthat context. R.’S RELOCATION TO ABBOTSFORD OR BACK TO THE SUNSHINE COAST [82] Mr. D. and Ms. B. are obviously guardians, and Mr. D. has the right to object to R.’s move to the Lower Mainland in early2018. He filed such a motion early on, but never served it.

Nevertheless, the thrust of his argument now is that R. should be returned tothe Sunshine Coast. [83] The decision about where R. is to reside is a very difficult one. Ms. B. has established herself with R. in the Abbotsford area forthe last 2 years and she has supports, both from the Ministry and even Mr. D.’s family. Mr. D. has a new partner and a good home on theSunshine Coast, and he has plans for R.’s kindergarten year. Of course, both parents have issues as described above, and I am especiallyconcerned about their tumultuous past and how that may have affected R. - and H. for that matter.

Their conflict has to stop for thebenefit of R. [84] Before addressing what is in R.’s best interests, I need to comment on some preliminary relocation issues. First, I am satisfiedthat this case should be determined under the comprehensive relocation provisions in Division 6 of the FLA, rather than s. 46. If therewere no prior orders, or at least no prior final orders, s. 46 applies. I must say that I have never understood why relocation cases aretreated differently depending whether or not there are past orders or agreements.

Some parents have been separated for years with a veryestablished but informal parenting arrangement, yet they do not get the benefit of the more comprehensive provisions under Division 6. [85] In any event, this case falls under Division 6 because there are at least 2 final orders made about parenting arrangements. Therewas an intent to re-address the parenting arrangements at a later fuller hearing, but earlier “final” orders were entered. [86] Secondly, I am satisfied that s. 69(4) applies in this relocation case. That

section applies when the relocating guardian, likelyMs. B., and the other guardian, Mr. D., do not have substantially equal parenting time. At best, Mr. D. has parenting time every weekendfrom Friday morning to Sunday evening if I include travel time. His parenting time amounts to about 36% of a given week, which issignificant but not substantially equal. [87] In my view, not a lot turns on the distinction between 69(4) and (5) in this case.

Both sections require the relocating parent toshow that the move is being made in good faith and that there are reasonable and workable arrangements for preserving the child’srelationship with the other guardian. If the above criteria are met, there is a presumption that the move is in the best interests of the childunder s. 69(4), whereas there is no such presumption in s. 69(5) where the parents have substantially equal parenting time.

In R.’s case, Iwill be carefully determining his best interests in any event. [88] Thirdly, since final orders were made in this case, there may be some dispute as to who is now the “relocating guardian.” Mr.

D. can take the position that there never has been a full hearing on Ms. B.’s move to the Lower Mainland, and that is my preference. Prior orders contemplated a fuller hearing on the move to the Lower Mainland. However, Ms. B. could take the view that a “final” order was made and she has lived in the Lower Mainland for 2 years, so it is Mr. D. who is seeking relocation. There is also some case law to the effect that Division 6 does not apply where a relocating guardian has already relocated ( M.C.J. v. R.J.G ., 2017 BCSC 465 ).

To resolve this dilemma, I am examining good faith and workable arrangements for the non-relocating guardian for both parties. [ 89 ] I conclude that both parties are seeking relocation in good faith. They each have their own agendas, and their conflict has required police and Ministry involvement. However, they each have good reasons for their respective proposed or actual moves, and they genuinely are focussed on enhancing the life of R. [ 90 ] Ms. B. was raised in the Lower Mainland and her main supports, including the Ministry, are there. Her relationship with Mr.

D. on the Sunshine Coast was rife with conflict requiring police involvement. While she did not give Mr. D. proper notice of her move with R. to the Lower Mainland in January of 2018, he was aware of the move and the eviction. He filed a motion to prohibit the relocation, but did not act on it immediately. Ms. B. really had few options, given the eviction, the no contact order and general state of conflict that existed on the Sunshine Coast. [ 91 ] Likewise, Mr. D.’s desire to move R. back to the Sunshine Coast is well-motivated. As a couple, Mr. D. and Ms.

B. decided to move to the Sunshine Coast as a new start, but that new start soon floundered. Now, however, Mr. D. has a new spouse, good employment, and roots in the Sechelt area. He or his family have reported Ms. B. to the Ministry in part to gain advantage, but his reasons for wanting R. in his primary care are good ones. [ 92 ] I also conclude that both parties are proposing reasonable and workable arrangements for the other party’s parenting time. No arrangement can be ideal here given the need for ferry travel between Abbotsford and Sechelt.

Each party is proposing certain weekend and holiday parenting time for the other taking into account the ferry travel. [ 93 ] In the end, Mr. D.’s application and the relocation issue must be decided with only R.’s best interests in mind. R.’S BEST INTERESTS [ 94 ] R.’s best interests are determined by considering his needs and circumstances, including the factors set out in

section 37 of the FLA. Health and Emotional Well-Being [ 95 ] The first factor is R.’s health and emotional well-being. Even when there was more intense Ministry involvement regarding H., the social workers were always content to leave R. in the primary care of his mother, Ms. B. The Ministry was satisfied that Ms. B. had suitable supports in place such as outreach, daycare and even Mr. D.’s relatives in Abbotsford. No concerns about R.’s health were noted. [ 96 ] Of course, I am very concerned that the Ministry felt it necessary to intervene with H., and that boy is now with his father. The issue there was Ms.

B.’s inappropriate discipline of H. by pulling his ears, and I will address this below. [ 97 ] In terms of R.’s health and emotional well-being, Mr. D. submits that Ms. B. is unable to consistently provide R. with food and medical necessities. R. has mouth sores and looks pale. However, objective witnesses such as the outreach worker state that Ms. B. is very attentive to R.’s needs. [ 98 ] For Ms. B., cash is undoubtedly in short supply, but I am satisfied that she can meet R.’s daily needs at this time. R. may have clothes that do not quite fit from time to time, and there will be other times when Ms.

B. has to reach out for help. But it must be remembered that she is on income assistance and has just secured employment. A parent can meet a child’s needs without having a high standard of living. The important thing is that Ms. B. is willing to engage in the services open to her. [ 99 ] I was concerned about some of the people frequenting Ms. B.’s home, but the Ministry believes that concern has been addressed. The Ministry also sees no current drug issues. [ 100 ] Mr. D. and his family also are concerned that R. is reluctant to return to his mother.

I want to emphasize that the Ministry could not substantiate any concern that Ms. B. pulled or twisted R.’s ears. The Ministry was concerned, as am I, with the nature of the contact between mother and father. Their relationship was toxic and replete with instances of domestic violence which I address below. Their toxic relationship undoubtedly had a negative impact on any the emotional well-being of any youngster in their home. [ 101 ] I do find that Mr. D. has a good home in the Sechelt area with family support nearby.

It should be noted that some of his key family members, his mother and his sister, live in the Lower Mainland. As well, Mr. D. does work in the day but daycare can and has been arranged. Child’s Views [ 102 ] R. is much too young to be able to express his views about parenting arrangements. Strength of Relationships [ 103 ] R. has lived primarily with his mother for the last 2 years in the Abbotsford area. That has been the status quo. He has probably seen too many moves in his young life, but several of those moves were made when the parties resided together on the Sunshine Coast.

I find that he has a strong bond with his mother, and this has been disrupted at least twice when the father withheld the child. Again, the biggest concern has been the constant discord between the parties and resulting police and Ministry intervention.

[ 104 ] Importantly, R.’s sister and brother live in the Lower Mainland, although ironically, R. only now sees his brother during Mr. D.’s parenting time. Both his maternal and paternal grandmother live in the Lower Mainland. I commend Mr. D.’s mother and sister for assisting with R.’s travel to the ferry, especially given that they have reservations about Ms. B. [ 105 ] I was impressed with Mr. D.’s presentation in court, and he and his partner also have a strong bond with R. Mr. D.’s plan for R. on the Sunshine Coast is a good one.

However, his plan involves a wholesale change whereby the mother’s role would be greatly diminished. I am also concerned that Mr. D. or his family has a propensity to report Ms. B. to the Ministry not simply out of concern for the child, but also to gain advantage. I was not impressed with his withholding of R. last summer - Ms. B. did not even get phone or FaceTime visits, although Mr. D. says FaceTime was attempted. History of R.’s Care and Need for Stability [ 106 ] I find that both parents can now give R. a stable home. Ms.

B. has been in the same apartment since June of 2018, and it is close to parks and a school. Ms. B. had been R.’s primary caregiver for 2 years, and prior to that time, she was mainly a stay-at-home parent. I am concerned about some of her past associates, but the Ministry has addressed that issue with her. The Ministry intervention is nevertheless concerning, and I discuss that below. [ 107 ] Mr. D. has a nice home in the Sechelt area with reasonable plans for school and daycare when necessary. He argued that the Sunshine Coast is a better environment than Abbotsford to raise a child.

I do agree that Abbotsford has areas with more crime and drug addicted people. However, I rarely decide a relocation case by simply comparing communities. We live in a diverse province. The Sechelt area is a charming and smaller oceanside community, but a large number of children have been successfully raised in Abbotsford, a fast-growing city still embracing its agricultural roots. My focus is on the parents and their plans for the child. Both parents here have good plans in place for R. [ 108 ] Plans are one thing, but the child’s history is another. R.’s history of care has been far from ideal. Even Mr.

D. said the bleeding has to stop. Too often R. has been caught in the middle of the domestic quarrels - either physically or psychologically. Ms. B. said that R. was in her arms when Mr. D. spat at her. This is a case where there has been plenty of police involvement, mutual peace bonds, withholding of the child, and Ministry intervention. Ability of Parents [ 109 ] I do have some reservations about Ms. B.’s parenting abilities, especially as R. gets older. Ms. B.’s daughter left her care when she was 12, and H. has been living with his father since he was 11.

It is one thing to say that there was simply a parent-teen conflict with the daughter. It is quite another thing to say that Ms. B. lost care of her older son due to Ministry involvement. That is the concern here. [ 110 ] It has not been proven that Ms. B. abused R. in any way. R. made disclosures to Mr. D.’s family, but the Ministry investigated the matter and could not substantiate any concerns. There as a concern that R. had been coached. The outreach worker says that Ms. B. is very attentive to R.’s needs. Ms.

B.’s older daughter also said she was never physically abused and she never saw abuse. [ 111 ] However, I am concerned about H.’s situation. Ms. B. denies any form of physical abuse, but clearly the Ministry intervened and H. was placed with his father. Ms. B.’s relationship with H. has been ruptured. She does not even see H. right now even though the Ministry let the supervision order lapse, and it appears H.’s father is not willing to facilitate visitation. [ 112 ] At this time, based on Social Worker K.’s evidence, the Ministry is content with Ms. B.’s parenting of R. The mother is engaged with services.

She also appears to be a more mature parent. With some consternation, I conclude that Ms. B. is able to parent R. and meet his needs notwithstanding the concerns regarding her parenting of H. Having said that, H.’s situation is my greatest concern with the mother’s case. [ 113 ] Overall, I was impressed with Mr. D. and his witnesses. However, I must face certain realities. He is asking me to disrupt the status quo by making him the primary caregiver. He still plans on working full time, so daycare or Ms. Bryant would play a large role in his plan.

The greater issue I have is his role in the discord between the parties. He was an equal participant in the domestic violence, but of greater concern, he has withheld R. in circumstances where the mother could not see the boy for a month. Impact of Family Violence and Future Requirements for Cooperation [ 114 ] I have already commented on how the domestic discord in this case has negatively affected R. Each party has blamed the other, but I note that there were mutual peace bonds, and the Ministry supervision order in March of 2019 contained a no contact order between the parties with certain exceptions. Ms.

B. and Mr. D. have each played a

part in the conflict, and again, this has to stop. [ 115 ] The parents have, at times, behaved immaturely and out of self-interest. It is time to put R.’s interests first and foremost. [ 116 ] Notwithstanding the past conflict here, I will be making orders requiring some level of cooperation. I have to bear in mind that Ms. B. is currently subject to a form of no contact order as part of her bail conditions. In my view, Ms. B. has been cooperative with Mr. D.’s weekend parenting time, but she does not have reliable transportation to assist with the ferry travel. Mr.

D.’s family has taken been largely responsible for R.’s travel between Abbotsford and Sechelt, and that will need to continue. Mr. D. has a history of reporting the mother to the Ministry and of withholding the child, but I think he now better understands the importance of cooperation and harmony between the parties. CONCLUSION [ 117 ] My decision here is not an easy one. After weighing all the factors above, I have decided to favour the status quo, with Ms. B. as primary caregiver for R. I will say that this was a close call, and should Ms.

B. find herself being unable to fully serve R.’s best interests in the future, she should not hesitate extending the father’s parenting time. In turn, the father should not take paltry advantage of such an overture.

[ 118 ] R. will be starting kindergarten in the fall. Visits to the Sunshine Coast every weekend will be too tiring for him. I am ordering visits three times per month to be extended by professional development days and statutory holidays. Mr. D. will be granted extensive holiday parenting time as set out below. Common sense should prevail - if a visitation arrangement is too taxing on R., the parties can vary that by agreement via email or text. [ 119 ] We are also in the midst of the COVID-19 crisis.

The parents have to take appropriate precautions, and I recommend they follow the guidelines set out by psychologist, Dr. Elterman, which are attached as Appendix A to my Reasons. [ 120 ] Mr. D. did not file a financial statement, and there was very little evidence relating to child support. I am satisfied that the child support order is outdated. Based on Mr.

D. earning $50,000 per year, he should be paying $470 per month in child support, subject to further financial disclosure. [ 121 ] Given my decision that R. will primarily reside in Abbotsford with his mother, the court file should be transferred to Abbotsford for all purposes. As required by Rule 19(4), I have considered the balance of convenience and the special circumstances of this case. R. has lived primarily in Abbotsford for 2 years, this trial was held here in Abbotsford, and Ms. B. does not have reliable transportation. Mr.

D. has had counsel from the Lower Mainland in the past and he has family here who can assist with the filing of documents, if necessary. [ 122 ] The Registry will draft the order, given the COVID-19 crisis and the need to lessen human interaction. FINAL ORDER [ 123 ] Upon the court being advised that the name and birth date of each child is as follows: R.D., [omitted for publication]. [ 124 ] This Court Orders that: 1. All prior orders in this family proceeding are cancelled; 2. Upon the Court being advised that S.F.D. and A.L.B. are guardians of the child under s.39(1) of the Family Law Act (FLA); 3.

Under s.40(2) of the FLA, the guardians shall share equally all parental responsibilities for the child; 4. A.L.B. will provide the primary residence for the child; 5. S.F.D. will have parenting time with the child as follows:

a) The first 3 weekends of every month from Friday after school (or noon if no school) to Sunday at 7 pm. If the day preceding or following the weekend is a statutory holiday or professional development day, his parenting time will include that extra day;

b) Facetime or phone visits twice per week on Tuesdays and Thursdays at 6 pm or such other times and days as the parties agree upon by email or text;

c) The first 10 days of Spring Break; d) 8 days of the Christmas school holiday, with the exact days to be agreed upon by email or text. Christmas Day will alternate between the parties, as agreed upon by email or text; e) 35 days of the summer school holiday, with the exact days to be agreed upon by email or text;

f) Such other times as the parties agree upon by email or text. 6. The guardians will make best efforts to share the responsibility for transporting the child, but where that is not possible, S.F.D. will be responsible to transport the child for his parenting time; 7. S.F.D. is found to be a resident of British Columbia and is imputed to have a gross annual income of $50,000.00; 8.

S.F.D. will pay to A.L.B. the sum of $470 per month for the support of the child, commencing on May 1, 2019, and continuing on the first day of each month thereafter, for so long as the child is eligible for child support under the FLA or until further Court order; 9. For as long as the child(ren) is/are eligible to receive child support, the parties will exchange: (

a) copies of their respective income tax returns for the previous year, including all attachments, not later than July 1 st each year; and (

b) copies of any Notice of Assessment or Reassessment provided to them by Canada Revenue Agency, immediately upon receipt. 10. Pursuant to Rule19, this proceeding shall be transferred to the Abbotsford Provincial Court Registry for all purposes. ______________________________________ The Honourable Judge G.J. Brown Provincial Court of British Columbia The following is Appendix A to the Reasons of the Honourable Judge G.J. Brown in the case of S.F.D. v. A.L.B. pronounced the 14 th day

of April, 2020. March 26, 2020. PARENTING ARRANGEMENT DURING THE TIME OF COVID-19 Michael F. Elterman, PhD, MBA, R.Psych. Clinical and Forensic Psychologist. The Covid-19 Pandemic represents a novel and wrenching dilemma for parents who are trying to self-isolate and protect their child. At the same time they are expected to exercise a parenting arrangement that is by Order or Agreement requiring them to relinquish the child to the other parent.

I am writing this as advice and as a guide for parents and their lawyers regarding how to think through the decision as each case has to be decided on it’s own unique circumstances. More than ever, the criterion of the child’s best interest applies. The health and safety of the child is paramount. To put this into perspective, think of the guiding principles as being:

(1) The child’s best interest including their health and safety and the health and safety of their caregivers;

(2) The potential to increase community transmission of the virus.

(3) The rights of the parents for parenting time (ie. it is not about the fairness at this stage). The third priority is less important than the first two given the circumstances. Any arrangement is not static and can be re-evaluated depending on how transmission of the virus continues over time, the shifting orders of the Medical Health Officer and, the parent’s own circumstances. The fact that there is a pandemic should not, in itself, prevent a parent from continuing to meet their obligations under the Order or Agreement unless there is a risk of transmission to the child.

For example, in a shared parenting responsibility situation that requires agreement of the other parent in health care decisions this does not become any less important. What I would like to do now is describe a variety of common parenting situations that would increase the risk and should be part of the decision. The following is based on current guidelines and Orders from the Provincial Medical Health Officer which may be subject to change.

(1) If a parent has had contact with an infected party, they should disclose this immediately to the other parent.

(2) If the parent is infected or even ill with symptoms or needed to be tested for Covid-19, they should not take the child.

(3) If the parent is in a home with older family members of friends or with individuals who are immune-compromised, the child should not be in that home.

(4) There should be no play dates and the child should not be taken to family or social gatherings.

(5) If parenting time is to occur in a public place such as a community centre, or a mall or restaurant, then it should be suspended.

(6) If a supervisor is required and who is not the spouse of the parent and living in the home, then the parenting time should be suspended.

(7) If either parent or anyone in the household is in an Essential Service or still working with the public, eg. Doctors, nurses, at a supermarket or pharmacy, flight attendant, etc.) then this can represent an increased risk to the child. The parents need to talk to each other about what they will do if one of them or a member of their household becomes ill with the virus. If the parenting time is not possible due to risk or distance, then generous FaceTime, Skype or WhatsApp video can be used. A parent can read stories, chat or even watch television with the child via video call. When the decision is made for longer parenting time, the parents might consider a number of factors:

(1) Who is in a better position to have the child in an isolation situation if the child is not in school or daycare. Factors might include the physical space to remain indoors, keeping the child entertained, and the child’s relationship with a sibling.

(2) If the parents, for example, have a 2-2-3 (Monday and Tuesday with mother, Wednesday and Thursday with father and alternate weekends) arrangement, then it may be better to switch to a week-on and week-off (as in the summer) to reduce transitions and the need to travel. This is a time when legitimate risk factors need to be taken into account and where the child’s best interests are truly being served. This is a not a time for emotional reasoning or considerations of fairness to either parent.

One of the things to consider is if one is called on to look back in Court on these decisions, can one provide legitimate reasons that the decisions being made have taken into account the child’s best interests and are in keeping with guidelines and Orders from the Provincial Medical Health Officer to limit the risk of transmission. Also, that any action taken is consistent with existing Orders and Agreements to the greatest extend possible. I hope that this short note of advice will assist the parents and counsel in their decision-making for the benefit of both the children and the community at large.