K.H. v. T.H., 2021 BCPC 19

Citation: K.H. v. T.H. 2021 BCPC 19 Date: 20210129 File No: F18716 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: K.H. APPLICANT AND: T.H. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.D. SKILNICK

Counsel for the Applicant: N.N.K. Dhillon Counsel for the Respondent: C.J. Song Place of Hearing: Abbotsford , B.C. Date of Hearing: November 23-24, December 16, 2020, January 11, 13, 2021 Date of Judgment: January 29, 2021 Background [ 1 ] The Applicant K.H. and the Respondent T.H., respectively, are the father and mother of three children: T.A.H., born [omitted for publication], G.S.H., born [omitted for publication] and K.D.H., born [omitted for publication]. All of the members of this family were born in Jamaica.

The parents began living together in 2006 and were married in 2010. [ 2 ] The Applicant came to Canada in October of 2013, while the Respondent remained in Jamaica with the children. During the time that the couple lived in Jamaica, both parents worked outside the home to support the family and the children were looked after by caregivers, including the Respondent’s mother. The Applicant worked in sales and the Respondent worked for a tour company. [ 3 ] After the Applicant arrived in Canada, he was unable to see the children for the first two years he was here because of the distance between them.

He sent money home to the family each month and was eventually able to secure employment in Abbotsford, BC as a long-haul truck driver. The Applicant kept in touch with the family by regular phone and video calls. The Respondent and the children came to Canada for a visit in December of 2014, and he saw them in New York in 2017. She also came to see the Applicant once in 2016 but did not bring the children with her. [ 4 ] The Respondent and the children came to Canada to live here permanently in December of 2018.

In the time that the Applicant was living in Canada and the Respondent was living in Jamaica, the Applicant was only able to see the children in person on the two occasions mentioned. During that time the children were primarily in the care of the Respondent, although she continued to work outside of the home to support the family, and caregivers looked after the children while she was at work. [ 5 ] The physical separation of the parties was very hard on their marriage and both strayed from their marriage vows by having intimate relationships with other persons.

Although some of the evidence at trial discussed the conduct of the parties and their infidelity, it is not my intention to focus on this issue, as it appears to have little bearing on the issues in this Application. Although each parent had minor criticisms about the other on such matters as the children’s school attendance or their attention (or inattention) to various health issues, in the final analysis each parent acknowledges the other to be a capable parent.

In fact, both agree that if the parties planned to live in the same community, each would be content with sharing their parenting time with the children equally on a “week on/week off” basis. Unfortunately therein lies the problem. The Respondent wants to relocate the children to Calgary, while the Applicant wants to remain in Abbotsford. [ 6 ] When the Respondent and the children moved to Abbotsford in December 2018, the family lived under the same roof on the main floor of a house. The children were enrolled in local schools in Abbotsford.

The Applicant made plans for the Respondent to attend school at the University of the Fraser Valley and to obtain a British Columbia driver’s licence. The Respondent did not agree with the plans that the Applicant had made for her and did neither of these things. [ 7 ] The children had some struggles in school regarding attendance and other issues, but these do not appear to be much different from similar issues that they had when they were attending school in Jamaica.

If anything, their school attendance appears to have improved since the children have come to Canada. [ 8 ] In the spring of 2019, the relationship between the parties continued to be tense. The Respondent accused the Applicant of treating her disrespectfully and of making insensitive and offensive comments about her weight and her unwillingness to find work. She also testified that the Applicant had slammed a door in her face, had tried to choke her on one occasion, and would demand sex from her, and when she refused, he would force himself on her.

It is difficult to be certain what to make of this, as counsel for the Applicant asserts that this was the first time the Applicant has been accused of such things. Although the Respondent filed a fairly detailed affidavit in November of 2020, the only abuse she complained of in the affidavit was of verbal abuse. These allegations of physical abuse were not put to the Applicant in cross-examination, and in rebuttal evidence, he denied that such things had ever occurred. [ 9 ] The Respondent told the Applicant that she wanted to go to Calgary in the coming summer (2019), where she had some family members.

The Applicant agreed, believing that the Respondent and the children were going there for a vacation. Unbeknownst to the Applicant, it appears that the Respondent had other plans. She and the children left for Calgary in July of 2019. The Applicant testified that in August of 2019, he was told by his oldest child that the Respondent planned to stay in Calgary with the children, and the Respondent acknowledges this to be the case.

In an affidavit which she swore in November of 2020, she says that she asked the Applicant if she and the children could remain in Calgary but that he would not agree to this. [ 10 ] In a text message sent by the Respondent to the Applicant on August 3, 2019, she tells him of her plans to return the children to Abbotsford for school in the fall and states the following: My decision is based solely on the mental health of my children and the fact that I do not want to drag them through a court battle. It is not fair to them.

Now it is final that we cannot live a healthy life together and although it is unfortunate, we need to move on and do what is best for our children. They will be going to school there, but I want them by me here in Calgary when they are not going to school. This is an offer and I will be looking for an acceptance. I hope you are rational enough to make the right decision for the sake of the children and not let emotion dictate your response.

Please bear in mind that I am more than capable of providing a healthy environment for the children by myself but for the sake of the children I would not deprive them from seeing their father. [ 11 ] The Respondent returned the children to Abbotsford for the start of school in September of 2019 and returned to Calgary. While in Calgary she had found a new home for herself and a job with [omitted for publication]. She had also obtained an Alberta driver’s

license. [ 12 ] The Respondent returned to Abbotsford in October of 2019 to see the children for the Thanksgiving long weekend. The Applicant testified that she also wanted to have the children’s passports. The Applicant suspected that the Respondent was coming to take the children back to Calgary with the intention of not returning them.

On October 8, 2019, he sought and obtained an order of this court which prohibited either party from changing the residence of the children from the City of Abbotsford, without the consent of all of the children’s guardians or further order of this court. [ 13 ] On October 15, 2019, the Respondent confirmed what the Applicant had suspected. She filed a Reply on this court file in which she acknowledged that she was seeking an order allowing the children to reside with her in Calgary.

That same day an order was made in this court confirming that the children would continue to reside with the Applicant on an interim basis, and it also fixed parenting time for the Respondent which she was permitted to exercise in Calgary. Subsequent court orders fixed the times of the Respondent’s parenting time during the school spring break in the spring of 2020 as well as her summer parenting time. [ 14 ] The Respondent testified that she moved to Calgary because the abusive conduct of the Applicant became too much for her to take.

She said that in Abbotsford she did not have any friends or family for support and she chose to move to Calgary where her support network was much larger. She also accuses the Applicant of using excessive physical discipline on the children. He denies doing this. [ 15 ] The Respondent lives in a rented home in a good neighbourhood in Calgary.

She has researched potential schools for the children and testified that the children were able to make new friends in Calgary during the two summers that they have spent with her. [ 16 ] In March of 2020, the Respondent told the Applicant via text message that she was unable to return the children from their visit with her over the school spring break for reasons related to the Covid-19 pandemic. She told him that she was ordered to self-isolate for 14 days by EMS professionals, and gave him an address in Calgary where he could come to pick up the children.

The children were not returned until May 2 nd . [ 17 ] The oldest child, T.A.H., is now attending grade 7 at an Abbotsford middle school. His report card describes him as struggling “with fully engaging in learning experiences in the classroom”, but he is also described as having a “positive and happy-go-lucky attitude” both in and out of the classroom. His teacher described getting to know T. as “a pleasure”, a theme consistent with his earlier school reports. He is also very athletic and has won medals at school track meets.

The Applicant notes that when T. was living in Jamaica with the Respondent, his school absences were problematic, and this concern is supported by a review of his school records from there. [ 18 ] G.S.H., the middle child, is a grade 6 student. Her report card from the past school year describes her as overcoming some learning challenges and as engaged in her learning, while requiring some additional support and encouragement. The Applicant describes her as being very musically inclined.

Like her older brother, she is also described as a pleasure to have in the classroom by her teacher, and is praised for her sense of humour. A previous report card describes her as helpful, but having some difficulty in developing and maintaining positive relationships with peers. The earlier report card describes G. as struggling in mathematics. [ 19 ] The youngest child, K.D.H., is now in grade 3. His report card praises him for his ability to adapt to the change from learning in the classroom to learning online. He is said to be a hard worker. He is struggling with reading and does better in mathematics.

His teacher describes him as having an “infectious bubbly personality that always lifts the mood of the classroom.” He is said to have a kind nature and shows a ready willingness to help out his classmates. He is also said to be a very creative child. [ 20 ] It is worth noting that in giving their respective evidence, the Applicant was more complimentary to the Respondent than she was to him.

The Applicant testified that the children appear happy with both parents (and this seems to be supported by the collateral evidence, such as school reports, the evidence of friends, and family photographs.) The Applicant said that the Respondent is “a good mother.” [ 21 ] Two friends of the Applicant also testified in this matter. A.G. is a fellow truck driver who knew this family when they lived in Jamaica. He and the Applicant worked together there. Mr. G. lived in the same house as the Applicant and the children in Abbotsford.

He describes the family home as a “nice clean home” and testified that “the kids look happy.” He added that although he doesn’t talk with the Respondent since she moved to Calgary, he also considers her to be a friend. [ 22 ] G.B. is a woman that the Applicant met from their mutual attendance at a local church. She knows the children and used to see them frequently. Her daughter is a friend of the middle child. She describes the children as very happy kids who are smart and articulate and says that the home they live in is a clean home, and roomy.

She describes the Applicant as “really good with” the kids and is “very involved” in their lives. [ 23 ] In October of 2020 the Applicant filed a financial statement in which he swears to his having an annual income of $74,225, based on his current employment as a truck driver. He supplements this with part-time work as a driver for [omitted for publication] and [omitted for publication]. This is an increase from his total income in previous years. In 2019 his tax return showed total income of $59,053.40.

His previous Notices of Assessment showed a total income of $65,189 for 2018, and $61,070 for 2017. [ 24 ] The Respondent’s financial statement, also filed in October of 2020, swore to a total annual income of $81,752. This has decreased since then because her hourly wage for one of the two jobs she holds has dropped from $24.40 an hour to $20 an hour. Her ability to earn an income in Calgary is certainly much improved from the time when she was living in Abbotsford.

Her Notices of Assessment show her having a total income of $17,406 in 2019, the bulk of which was earned in Calgary. [ 25 ] The Respondent also entered into evidence a considerable amount of documentary evidence setting out the costs associated with her having to exercise her parenting time with the children since she moved to Calgary. The unfortunate aspect of this matter is that since the Respondent has decided to move to Calgary it has created a situation in which will require considerable expense for whoever the travelling parent is.

Position of the Parties [ 26 ] Both counsel agree that in this case both parties had “substantially equal parenting time” with the children as that term is used in section 69(5) of the Family Law Act.

The significance of this is that as the relocating guardian, the Respondent has the onus of proving that the proposed relocation of the children is made in good faith, that she has proposed reasonable and workable arrangements to preserve the relationship between the children and the Applicant, and that the relocation is in the best interests of the children. [ 27 ] Counsel for the Applicant questions whether this move was one that was made in good faith, considering that the Respondent took the children to Calgary knowing that she was planning to make a new life for herself and the children there, but that she did not tell the Applicant this.

Counsel also suspects that without the Applicant’s action in obtaining a court order prohibiting the changing of the residence of the children, the Respondent would have used self-help and moved them in any event. [ 28 ] The Applicant’s counsel argues that, having chosen to move so far away from Abbotsford, the Respondent created a situation that is not in the best interests of the children.

Her decision has placed the requirement of extensive travel in the lives of the children in order for them to maintain a relationship with each parent. [ 29 ] Counsel also alleges that the Respondent has shown an unwillingness to make decisions that are in the best interests of the children. These include her unwillingness to voluntarily provide child support to the Applicant while the children have been in his care because she does not want him to decide how that money is spent.

The Respondent was also willing to bargain away the children’s right to child support if the Applicant agreed to consent to their residing with her, something that counsel says shows an inability on the part of the Respondent to consider what is in the best interests of the children. [ 30 ] The Applicant’s counsel seeks an order maintaining the status quo, which involves the children remaining at the Applicant’s residence.

If the Respondent wishes to return to Abbotsford to reside, counsel says that the parties can share parenting time equally, but if the Respondent remains residing in Calgary, she should still have generous parenting time. Counsel asks for an order for shared parental responsibilities and for child support retroactive to September 1, 2019 at the guideline amount. [ 31 ] Counsel for the Respondent argues that her client has made the decision to relocate in good faith.

Formal notice to relocate (which is contained in the Reply in these proceedings) was not given until the Respondent acquired some security in her new job. Her counsel argues that the decision to relocate was rooted in a desire to leave an abusive relationship for a new life where there was economic security. [ 32 ] The Respondent’s counsel essentially takes the same position as her opposing counsel on the issue of parenting time, with the roles reversed. She argues that the Applicant is able to relocate to Calgary and if he does so, parenting time can be equally shared there.

But if he decides not to do this, he should have the same generous parenting time that he is offering to the Respondent. [ 33 ] Counsel for the Respondent says that her client has paid $2,080 in child support since September of 2019, and is critical of the Applicant for refusing to help share her client’s costs of exercising parenting time since moving to Calgary.

She adds that the bests interests of the children call for them to reside with the Respondent, who has been more attentive to the children’s health needs, and who acted as a caregiver to the children for a greater portion of the children’s lives, especially during those years in Jamaica when the Respondent was absent from their lives while he was living in Canada alone. She adds that her client is able to work from home more easily and can ensure that the children are attending to any home-schooling assignments during the pandemic.

Conversely, the Applicant is absent from their lives for longer periods because of his job as a long-haul truck driver. [ 34 ] The Respondent’s counsel seeks an order that allows the relocation of the children to Calgary, allows for generous parenting time to the Applicant, shares parental responsibilities and offsets any retroactive child support owing by her client with the costs of the Respondent in exercising parenting time. Analysis [ 35 ] Counsel have fairly set out the test at law for determining with which parent these children should reside primarily with.

The decision of the Respondent to move from Abbotsford to Calgary has introduced an unfortunate complication into the lives of the children in that, in order for them to maintain a relationship with both of their parents, a great deal of travel will be required for them. However it is not a matter of punishing the Respondent for doing this. If the decision to relocate was made in bad faith either for purely selfish reasons, or as a means of seeking to put distance between the Applicant and the children, then such a move is presumed not to be in the best interests of these children.

But if then move was made in good faith, and is otherwise in the best interests of the children, then it should be allowed. 1. Is the Proposed Move Being Made in Good Faith? [ 36 ] The first issue to be determined is if the Respondent’s proposed move of the children to Calgary is being made in good faith. Section 69(6) of the Family Law Act gives a court the following guidance in determining whether or not a proposed move is being made in good faith. That subsection reads as follows:

(6) For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following: (

a) the reasons for the proposed relocation; (

b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities; (

c) whether notice was given under

section 66 [notice of relocation];

(

d) any restrictions on relocation contained in a written agreement or an order. [ 37 ] The selection of Calgary as the site of a proposed move appears to have been made for objectively valid reasons. The Respondent has found gainful employment there, she has secured reasonable housing, and has a support network of friends and relatives there.

As the parent who is the more recent one to arrive in Canada, the latter factor is significant for someone in the Respondent’s position. [ 38 ] The proposed relocation is certainly likely to enhance the general quality of life of the Respondent compared to what exists for her in Abbotsford. There is a difference of opinion as to whether or not the Respondent was making a genuine effort to establish herself in British Columbia, but it does appear clear that her separation from the Applicant has enabled her to get a driver’s licence, find secure and rewarding employment and develop a support network for herself.

In terms of whether or not relocation would enhance the general quality of life for the children, this is less clear.

The children have presented themselves as resilient and happy children who love both parents, and it is likely that they would thrive in either location, as well as suffer from the same inconveniences and anxieties as other children with parents who are separated geographically, regardless of whether they are living in Abbotsford or Calgary. [ 39 ] The giving of notice as a factor in determining the presence or absence of good faith seems less significant of a factor in this case, where the matter has taken over a year to be determined by this court.

For parents who use self-help and who move the children without notice, this is often indicative of a parent who is bent on injuring a child’s ties with the other parent, though it can also be the result of a parent fleeing an untenable situation. In this case the Applicant suspected that the Respondent was planning to move the children without notice, and he took pre-emptive action by obtaining a non-removal order.

It is difficult to clearly attribute that motive to the Respondent, given that she could have tried to keep the children in Calgary at the end of the summer of 2019, but instead chose to return them to Abbotsford for the start of their new school year. [ 40 ] The Respondent’s application to move the children to Calgary should not be immediately rejected because of bad faith. She was in an untenable relationship that had little prospect of repair. Remaining in Abbotsford left her alone, and with little means of financial or emotional support.

A move to Calgary appears to have been her best option personally, despite the fact that it came with considerable inconvenience being injected into the lives of the children. 2. Has the Respondent Proposed Arrangements as Required Under Section 69(4)(a)? [ 41 ] Section 69(4)(a)(ii) of the Family Law Act requires a proposed relocating guardian to present “reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life”.

In this case the Respondent has proposed that the Applicant would have parenting time with the children at virtually all times that do not interfere with their schooling. There is nothing more she can offer in this regard without adversely affecting the children’s education and I therefore conclude that the requirement of this subsection has been met. 3. Is the Relocation in the Best Interests of the Children? [ 42 ]

Section 37 of the Family Law Act requires that any orders made concerning “guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.” Subsection (2) goes on to read:

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following: (

a) the child's health and emotional well-being; (

b) the child's views, unless it would be inappropriate to consider them; (

c) the nature and strength of the relationships between the child and significant persons in the child's life; (

d) the history of the child's care; (

e) the child's need for stability, given the child's age and stage of development; (

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (

g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being. (

a) Health and Emotional Well-Being [ 43 ] By all accounts, these children are healthy and resilient, considering the family disharmony that they find themselves in the middle of. The Respondent has made complaints that the Applicant has been inattentive to certain health issues, but it is difficult to discern if these are legitimate concerns or part of an effort to make the Applicant appear unconcerned, in an effort to gain an advantage in family court proceedings. For example, in March of 2020, following the beginning of the pandemic, the Respondent refused to return

the children to the Applicant at the scheduled time, using the pandemic as the reason for refusing to do so. She told the Applicant in a text message: By the way, I will not be putting myself and the children in harm’s way by taking them back to BC until it is safe to do so, because unlike you, you are not looking out for the best interests of our children. Have a blessed day. [ 44 ] The Applicant complained that on one occasion when the children returned from spending time with the Respondent, the youngest child had a ringworm condition.

The Applicant took the child to a walk-in clinic where he was given antibiotics. The same child has breathing problems at night according to the Applicant, something he says that the Respondent was inattentive to. [ 45 ] The parties also disagreed about some cold-like symptoms that the children were displaying in November of 2020. The Respondent was critical of the Applicant for not having the children tested for the coronavirus, while the Applicant testified that he was advised that the children were not displaying symptoms indicating the need for such testing.

The Applicant was critical of the Respondent for taking the children on outings with a large number of people during the pandemic. [ 46 ] The Respondent was also critical of the Applicant for not taking the older child to see a doctor because of a number of scratches and scrapes that the child had received from falling off of his bike. The Applicant testified that he washed these cuts with alcohol, but did not believe that they required medical attention. [ 47 ] The Respondent has also complained that the Applicant has been inattentive to a problem that their daughter has experienced with genital itching.

She says that the child is reluctant to discuss the problem with the Applicant and suspects that the problem stems from poor hygiene on the child’s part. The Applicant maintains that he has been attentive to the child’s health needs and has informed her that a female caregiver is available for the child to discuss matters of such a private nature that the child feels uncomfortable discussing with her father. [ 48 ] In the final analysis, this is not a situation where either parent is ill-equipped or inattentive to the children’s health needs.

The Respondent’s criticism of the Applicant in this regard sometimes seem unwarranted. This is not a factor that would suggest that the children’s best interests are better addressed by one parent over the other to any significant degree. (

b) View of the Children [ 49 ] The children’s views have never been canvassed independently in this manner. No reports under

section 211 have been ordered or prepared. The Applicant testified that he does not discuss court proceedings with the children, but is concerned that the Respondent does. The Applicant testified that on one occasion the Respondent attempted to coach his daughter about what she should say if asked about court proceedings. The Applicant told the children not to listen to the Respondent when she wants to talk to them about court matters.

The Respondent took this to mean that he was instructing the children not to listen to her generally, but the Applicant says that he was specific in his instruction that the children shouldn’t discuss court matters with the Respondent. The Applicant testified “I never discuss court with the kids.” [ 50 ] The Respondent provided a text message exchange between herself and the children in January of 2020 in which one of the children is complaining about the meal prepared by their caregiver.

In the exchange the child tells the Respondent “Daddy says I must not listen to anything you say.” When the Respondent asks why, the child replies “I don’t know. I want to stay with you.” The Respondent’s counsel extrapolates from this that the children wish to reside with the Respondent, but the Applicant’s counsel argues that there is little context from which to draw any conclusions from this remark, and the remark was not made to anyone independent. I agree that little can be discerned from this lone text message about what the children’s true feelings are on this subject.

From the objective evidence, it appears that these are children who could thrive in either home. (

c) Nature and Strength of the Children’s Relationships with Other Persons [ 51 ] One of the impressions left from the reports from the children’s teachers is that these are children who make friends easily and who are popular with their classmates. They have had one major transition in their life, moving from Jamaica to Canada, and the Applicant’s counsel argues that it would be unfair to impose another relocation on these children merely to accede to the Respondent’s wishes. The children have more extended family members in Calgary, but it also appears that these were largely family members that they were unfamiliar with prior to the Respondent’s decision to move to Calgary. (

d) The History of the Children's Care [ 52 ] For a significant period of the children’s lives, the Applicant was not present in person, though he did make efforts to remain in contact with them through phone and online communication. His absence was not because of disinterest in their lives, but rather because of a desire to be better able to provide for his family. It must be acknowledged however that from October of 2013 until December of 2018, the Respondent was the children’s primary caregiver. [ 53 ] It is difficult to assess the impact of this on the children going forward.

Clearly, the Respondent’s absence from the children’s life would adversely affect them and they surely miss her tremendously when she is not present. Living in their current circumstances (primarily with the Applicant), the children appear to maintain a happy demeanour, according to collateral sources such as their teachers and the independent witnesses. (

e) The Children's Need for Stability [ 54 ] In assessing the best interests of the children in this case, this is one of the most compelling factors that presents itself. The children have already undergone one major relocation in their lives. They have adjusted to that with resilience and poise, and have established positive relationships with their teachers and fellow students, and are described as being happy in their current home. The issue that confronts in this case is whether another relocation and upheaval is in their best interest? The move appears to be beneficial for the Respondent for many reasons. Section 69 (5) (

b) of the Family Law Act also requires the Respondent to establish that the relocation

is in the best interests of the children. This is the major hurdle in this case. [ 55 ] In many cases, relocation is allowed because it is clear that a move will give the children a better life. Sometimes one parent is shouldering the burden of most of the child care responsibilities, without adequate support from the other parent.

In those cases, the parent doing what I like to refer to as the “heavy lifting” should be allowed to relocate in order to provide a better life for the children, which can sometimes involve the ability to better provide for them financially or to escape a difficult or challenging situation. This is not one of those cases. Since coming to Canada, both parents have been pulling their weight in terms of meeting their responsibilities to their children. [ 56 ] The Respondent has unilaterally decided that the children would be better off in another city, nine hours away in good driving conditions.

This was not a joint parenting decision. The Respondent is hopeful that life will be better for the children in Calgary, and that may well be the case, but that is still very much an unknown. The Respondent asks the court to substitute a known environment for the children where they are thriving for the unknown one. Her decision will work out better for her personally, but it will also adversely affect the ability of the children to maintain the same strong ties with each parent. It will also inject many hours of travel into their lives. This is the most problematic aspect of this application. (

f) Abilities of the Guardians to Exercise Their Responsibilities [ 57 ] Both of the parties have shown themselves to be capable parents. The Applicant acknowledges, without hesitation that the Respondent is a good mother to these children. The Respondent has a number of complaints about the Applicant’s parenting, such as disagreeing with his decision about whether or not to have the children seen by a doctor for scrapes and colds.

Nothing in the evidence rises to the level of concern that calls into serious question the Applicant’s ability to parent, and this conclusion is supported by the reports from other members of his community. The children’s teachers do not suggest any problems within the home. [ 58 ] Some of the Respondent’s actions do suggest concern about her ability to parent collaboratively.

These include taking the children to Calgary before discussing their possible move, delay in returning the children after their spring break absence, and the possible concerns that the children would be taken back to Calgary after the Thanksgiving long weekend, necessitating the start of this court action. The Respondent also testified to an unwillingness to pay child support directly to the Applicant, later relenting and saying that she would do so if ordered by this court. [ 59 ] Conversely, the Applicant has appeared to be reasonable in seeking the intervention of this court rather than using self-help.

He has also generally displayed an attitude of willingness to have the children spend as much time with the Respondent as does not interfere with their schooling, and has been flexible in changing plans when the Respondent was unable to return the children as promised. He proposed a willingness to an equal sharing of the parenting time if the parties live in the same city, (something that the Respondent has also expressed willingness to do). [ 60 ] The Respondent testified that she would be willing to forego child support from the Applicant if she was allowed to move the children to Calgary.

While this might seem generous to some, it presents two problems. Firstly, child support is the right of the children, and it is not something for the Respondent to bargain away to get what she wants. Secondly, if such a situation was allowed, it could then be used to diminish the importance of the Applicant in the children’s lives, something not conducive to good co-parenting. (

g) The Impact of any Family Violence on the Children's Safety, Security or Well-being [ 61 ] The Respondent sought to portray the Applicant as abusive towards her, both physically and emotionally. There is no doubt that the separation of the parties and their respective extra-marital affairs led to considerable resentment and tension in their own relationship. It has resulted in a lack of mutual respect, though fortunately it also appears that both of them have not sought to inject their children into the middle of their conflict.

Neither appears to have let their mutual animosity affect their parenting decisions to any significant degree and they have generally shown the ability to co-parent. [ 62 ] Counsel for the Applicant is skeptical about whether the Respondent’s complaints of physical abuse are genuine or not. Firstly, she notes that the Applicant (who testified first) was not asked about these incidents during his cross-examination. The Applicant was permitted to give rebuttal evidence in order to deny these allegations.

It is also significant that in an affidavit sworn by the Respondent prior to trial, she complains of instances of verbal abuse but does not mention any physical abuse. Counsel for the Applicant says that it is suspicious that the Respondent would not mention the physical abuse, complaining instead of verbal abuse as her most important complaint. [ 63 ] The failure to mention these incidents in a timely manner does not automatically suggest that they did not happen.

On the evidence presented they can neither be said to have been proven or disproven, based on the lone statements of occurrence and denial by each party. What does appear clear from the evidence however is that there is nothing in the evidence to suggest that the children have been adversely affected by violence. The Respondent has suggested that the Applicant has used excessive physical discipline, something that the Applicant denies.

The independent evidence in this case does not suggest any reports of violence in the home made by the children, or suspected by any of the children’s teachers or the independent witnesses who testified. [ 64 ] The Respondent has acknowledged that while living in Jamaica, she was in a relationship with a man who assaulted another person with a knife and that the incident occurred in her home, but not in the presence of the children. She is no longer in a relationship with that person, but says they are still friends.

This incident does not appear to have any bearing on the present circumstances of the children, and there is nothing in the evidence to suggest that the Respondent would bring violence into any home in which the children are living. (

h) Family Violence Impairing a Parent’s Ability to Care for the Children [ 65 ] As stated in the previous section, it has not been proven that family violence has presented itself into the lives of these children. If some of the incidents alleged on the part of either party had occurred, it does not appear that this has impaired the ability of either parent to be a capable caregiver for these children.

(

i) Appropriateness of an Arrangement Requiring Parental Cooperation [ 66 ] It should be reiterated that both of these parents are capable of putting aside their acrimony toward one another in favour of making most decisions concerning what is in their children’s best interest (the obvious exception being their children’s city of residence). Both counsel have acknowledged as much in their submissions and there is no reason to make anything other than an order for shared parental responsibilities in this case, once the issue of whether or not to allow relocation has been decided. (

j) Any Relevant Civil or Criminal Proceeding [ 67 ] The Respondent has alleged that there is an outstanding warrant for the arrest of the Applicant in Jamaica for a non-violent offence. The Applicant denies this and no supporting documents were presented in evidence to substantiate this allegation. In any event even if true, this does not appear to be relevant to the safety, security or well-being of the children, and was likely mentioned only with the intention of seeking to foster a negative opinion of the Applicant. This is not a factor in deciding the issue of relocation.

Conclusion on Relocation [ 68 ] From the foregoing analysis, the Respondent’s decision to relocate to Calgary was not made in bad faith, in the sense that it was not made solely for the intention of limiting the Applicant’s relationship with his children, though clearly that would be the result. A move that separates children from a parent by over 900 kilometres puts distance in that relationship, makes parenting time less frequent, adds considerable expense and subjects the children to greater inconvenience. There may be situations that justify this.

In this case it is clear that the move will put the Respondent in a better position economically and emotionally. What is less clear is where it would leave the children. [ 69 ] The evidence does not support the conclusion that the move would enhance the general quality of life of the children. A nice house and more time with one parent will be offset by having to change schools and make new friends, having to leave current friends behind.

It means less money in the homes because of the cost of travel, and more time for the children being transported back and forth in order to maintain their relationship with both parents. It is a burden which most other children do not have to bear. [ 70 ] The Respondent did not sufficiently canvass in her evidence what efforts she made to look for an alternative locally that would spare this disruption on the lives of the children. She was lucky to have the connections in Calgary that would give her the opportunity to earn a better income there, but she is also possessed of the same skills here.

The ideal situation would be for the Respondent to look to seek to utilize her skills as a caregiver some place close to where the children currently reside so that they could divide their time equally in each parent’s home. [ 71 ] There are a number of speculative reasons why a move of the children’s residence as proposed by the Respondent might be in the children’s best interests. On most of the factors used to determine what is in their best interest, the parties are equally able to demonstrate the capability to do what is best for their children.

But the Respondent has failed to show why such a move is beneficial to the children’s need for stability, given that they have already undergone one major move in their lives.

The Respondent has not shown how removing the children from a community and from schools where they are thriving and appear happy and contented is preferable to moving them to an unknown environment, forcing yet another transition on them and injecting all of the difficulty into their lives that comes with having two parents who live so far apart. [ 72 ] There is also concern that the Respondent would not show the same deference and respect for the need to follow court orders that the Applicant has shown, and that her desire to make decisions that would make things easier for her would be placed ahead of the needs of the children and the maintenance of their relationship with their other parent.

Her willingness to bargain away their right to child support is particularly troubling in this respect. [ 73 ] The Family Law Act places the burden on the Respondent to show that the relocation of the children to Calgary is in their best interests. She has not met than burden in this case. Her application for relocation is refused, and the children will remain living in Abbotsford with the Respondent unless the parties agree otherwise.

Spousal Support [ 74 ] Both of these parties have demonstrated an ability to provide for their self-support and the duty for either spouse to provide for the support of the other spouse as set out in

Part 7 of the Family Law Act does not arise here. Accordingly no order for spousal support is being made. Child Support [ 75 ] When parents separate, each retains the obligation to provide for the financial support of the children that they have brought into the world.

When children reside primarily with one parent, the other is generally required to provide for the financial support of the children in accordance with the Federal Child Support Guidelines, based on the payor parent’s income, and the number of children requiring support. [ 76 ] In this case, the Applicant seeks child support from the Respondent retroactive to September 1, 2019. The Respondent began working with [omitted for publication] on August 19, 2019.

She is paid $44,000 annually under her contract as a supportive roommate, and up until the end of 2020, she also received an hourly wage of $24.40 for as 30 hour work week. This worked out to an additional annual salary of $38,064, for total annual remuneration of $81,752 in 2020. The hourly rate was reduced to $20 per hour starting in 2021, reducing the annual salary to $31,200, and reducing the annual income to $75,200. [ 77 ] On a strict application of the guidelines, this places the following obligation on the Respondent (as a payor living in Alberta) for child support:

a) From September 2019 to December 2019 (4 months), a monthly guideline amount of $268.11 per month for total arrears of

$1,072.44

b) From January 2020 to December 2020 (12 months), a monthly guideline amount of $1,579.44 per month for total arrears of $18,953.28

c) From and after January, 2021, a monthly guideline amount of $1,452.80. For total arrears of $21,478.52. [ 78 ] Counsel for the Respondent submits that there are two amounts which should be deducted from this amount:

a) The sum of $2,080 paid to the Applicant by the Respondent; and

b) The sum of $9,281 paid by the Respondent to exercise her parenting time with the children after her move to Calgary. [ 79 ] The Respondent has provided proof of payment to Applicant in the sum of $1,980 paid as follows: (a) $310 on September 6, 2019; (b) $700 on September 21, 2019; (c) $450 paid on October 20, 2019; (d) $20 paid on November 29, 2019; and (e) $500 paid on January 1, 2020. She also testified that $100 was paid to him sometime around Christmas, and the Applicant does not take issue with this.

Accordingly, the sum of $2,080 can be deducted from the arrears of child support, leaving a balance of $19,398.52. [ 80 ] Counsel for the Respondent bases her claim for a reduction of the arrears by the cost of exercising access under

section 10 of the Federal Child Support Guidelines. This

section allows a Court to reduce the amount of child support otherwise owing if the court finds that the payor would otherwise suffer undue hardship. Subsection 10(2)(

b) lists as one of the factors supporting undue hardship unusually high costs of exercising parenting time. [ 81 ] However, subsection 10(3) of the Guidelines directs that an undue hardship claim must be denied if after factoring in the payment of child support, the payor spouse would have a higher standard of living than the other parent. Currently the incomes of the two homes are relatively equal.

After payment of child support, the Respondent would have the lower household income, but this ignores the fact that the Applicant is required to support a family of four persons, while the Respondent is only required to support herself. Because of this, subsection 10(3) mandates the disallowance of a claim for undue hardship in this case, and therefore the costs of exercising parenting time cannot be deducted from the child support owing.

Order [ 82 ] For the foregoing reasons, it is ordered as follow: [ 83 ] Upon the Court being advised that the name and birth date of each child is as follows: T.A.H., born [omitted for publication], G.S.H., born [omitted for publication], and K.D.H., born [omitted for publication]; 1. The Court is satisfied that K.H. and T.H. are the guardians of the children under section 39(1) of the Family Law Act (FLA). 2. Under s. 40(2) of the FLA the guardians will share equally all parental responsibilities for the children.

In the event that the guardians cannot reach agreement on a significant decision concerning the children despite their best efforts, K.H. will be entitled to make those decisions and T.H. will have the right to apply for directions on any decision she considers contrary to the best interests of the child, under s.49 of the FLA. 3. The children’s primary residence shall be with K.H. in Abbotsford, BC unless otherwise agreed upon by the parties or until otherwise ordered by the Court. 4.

T.H. will have liberal and generous parenting time at dates and times agreed between the guardians, provided that the exercise of such parenting time shall not interfere with the children’s schooling. 5. T.H. is found to have been a resident of Alberta since August 19, 2019, and is found to have a gross annual income of $17,406.19 for the calendar year of 2019, $81,752 for the calendar year of 2020, and $75,200 thereafter. 6.

T.H. will pay to K.H. the sum of $268.11 per month for the support of the children for the period from September 1, 2019 to December 31, 2019 and shall pay K.H. $1,579.44 per month for the support of the children, for the period from January 1, 2020 to December 31, 2020, commencing on September 1, 2019 and continuing on the 1st day of each and every month thereafter until December 31, 2020.

T.H. will pay to K.H. the sum of $1,452.80 per month for the support of the children, commencing on January 1, 2021 and continuing on the 1st day of each and every month thereafter, for as long as the children are eligible for support under the FLA or until further Court Order. 7. The arrears of child support owing from T.H. to K.H. as of January 29, 2021 are $19,398.52, including principal and interest. 8.

T.H. will pay to K.H. a minimum of $225 per month towards the arrears of support, in addition to regular monthly support payments, commencing on February 1, 2021 and continuing on the 1st day of each month thereafter until the arrears are paid in full or until further Court Order. 9. The applications for spousal support, and for relocation of the children’s residence to Calgary, Alberta, are refused. _______________________________

The Honourable Judge K.D. Skilnick Provincial Court of British Columbia