R.N. v. J.J., 2021 BCPC 143

Citation: R.N. v. J.J. 2021 BCPC 143 Date: 20210525 File No: F19023 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: R.N. APPLICANT AND: J.J. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK

Appearing on their own behalf: R.N. (by telephone) Appearing on their own behalf: J.J. (by telephone) Place of Hearing: Abbotsford , B.C. Date of Hearing: May 20, 2021 Date of Judgment: May 25, 2021 Introduction [ 1 ] The Applicant R.N. and the Respondent J.J. are the parents of two young sons: M.M.A.J., born [omitted for publication], and J.E.J., born [omitted for publication]. The parties lived together from 2014 until August of 2020 when they separated.

The reasons for their break-up leaves no realistic hope of reconciliation and both parties acknowledge that. [ 2 ] In October of 2020, the Applicant took the children and went to Ontario to be with her family. She says that this was not intended to be a permanent relocation, but the Respondent is skeptical about this. In November of 2020, the Applicant notified the Respondent that it was now her intention to permanently relocate the children to Ontario.

She seeks an order permitting her to do so and the Respondent asks for an order compelling the Application to return the children to British Columbia. [ 3 ] The parties participated by telephone at a Family Case Conference on January 14, 2021 at which time a consent order was made for the Respondent to have virtual parenting time. At that time a one-day hearing was set for an order to be made on the Respondent’s application to prohibit the relocation of the children.

At a pre-trial conference held on April 6, 2021, I ordered that the Applicant would be permitted to appear at trial virtually on MS Teams, only to later be reminded that such hearings required the approval of the Office of the Chief Judge. Approval was not granted and the parties participated in a hearing of the Respondent’s Notice of Motion by telephone. Neither party submitted any documents for the hearing. [ 4 ] At the conclusion of the hearing, decision was reserved and the parties were promised written reasons by no later than June 1, 2021.

The distance between the parties and the fact that the outcome of the hearing would leave at least one party in a difficult position were factors that called for greater consideration of this matter, as opposed to simply making an immediate decision. [ 5 ] Following are the reasons for making the interim order that will be made on this Notice of Motion.

Summary of Evidence [ 6 ] The Applicant is 31 years of age and the Respondent is 29.

The two of them met in 2014 through the Respondent’s mother and they moved in together either in 2014 or 2015. (Each has a different recollection of when they began living together, but nothing turns on that.) Both describe their relationship as “off and on” for the first few years but both agree that they became more committed to one another with the birth of their two children. [ 7 ] The two children were born just over 18 months apart, with the older son being born on [omitted for publication] and the younger son born on [omitted for publication].

During the time that the parties were together, both parents worked outside of the home. The Applicant has continually worked as an ironworker and the Respondent worked as a community support worker. The Respondent took advantage of her maternity leave benefits and stayed home with the children shortly before and following the birth of each child. She was reaching the end of her maternity leave for the second child when she decided to go to Ontario with the children.

She has remained there ever since. [ 8 ] The Applicant has done the bulk of the child care duties for the children, and has not worked outside of the home since the second child was born. This is not intended in any way to minimize the role that the Respondent has played in the lives of the children, but simply to recognize how the family roles were divided when the parties lived together. The Respondent acknowledged that because the children were so close in age, and so young, caring for the two of them together was challenging for him at times.

He agrees that when the two of them were living together, he would sometimes get upset if the Applicant left the home before the youngest child was asleep, especially because the youngest child was colicky and was still being breast-fed. [ 9 ] The parties’ relationship broke down due to allegations of infidelity on the part of the Applicant. In August of 2020 the Respondent was told by a friend of the Applicant that he might not be the father of the second child, though the Applicant insists that the Respondent is in fact the father of both children.

Neither party has asked for any order for paternity testing for the child. [ 10 ] The Applicant acknowledges some infidelity on her part, though no point was seen in exploring this issue any further, as it has little relevance to the best interests of the children, other than in how the parties react to it. The Applicant says that the Respondent is emotionally and physically abusive and she says that this is the reason why she wants the move the children to Ontario. The Respondent admits that his reaction to learning of the Applicant’s infidelity has caused him to act immaturely, rashly and angrily at times.

He has also apologized for such conduct and has seen a counsellor to help him with dealing with the stress from the breakdown of the relationship. [ 11 ] After the parties separated and before the Applicant moved to Ontario, the Respondent would have parenting time with the children each weekday after work from 4:30 to 7:30 p.m. and on the weekends. [ 12 ] On September 8, 2020, the Applicant filed an application for guardianship, spousal support and child support. According to an affidavit of service, this was served on the Respondent the following day by another care worker.

At some point later on (it is unclear when) the Application was amended with the notation “would like to relocate to Ontario where I have support and my family.” It is not clear from the court file when exactly this was done as the only stamp on the document is from the original application. The Respondent testified that he was never served with the amended application and there is no affidavit of service of that document on the court file. On October 30, 2020, the Applicant filed a request to adjourn this application generally.

[ 13 ] The Applicant testified that she went to Ontario in October of 2020, with the intention on just going for a break. The Respondent says he was told by the Applicant that she would only be gone for two weeks. When she did not return he spoke to her on the phone and she told him that she was extending her visit.

It appears clear from the amended application and the request of the file to be adjourned generally that the Applicant had planned to move the children to Ontario sometime before October 30 th . [ 14 ] The Applicant read into the record a text message exchange she had with the Respondent on October 20, 2021, which read as follows: Applicant: I want them to have a relationship with their father. I feel as though you don’t even care. You haven’t even called to ask about them. While I asked if you want to video chat with them, you refused. You told me several times, you don’t want this life, me or the kids.

When we first got out here, you told me not to contact you. You said you hate them and you don’t want them because they came out of me. Your words have really hurt me and that’s exactly what you use them to do. Our words make or break people and it hurts me that you would say that about our innocent children who have done nothing wrong. I feel that we won’t be able to give them the best life, as we haven’t been able to co-parent them in a healthy way, let alone parent them well while we were together. Just the other day you said you wanted to give up the rights to them.

I’m really concerned for you and your mental health. Respondent: I’m good. I was having a down day. I haven’t seen the kids or you in a long time and I’m stressed over it. I do want the kids and I still want to be able to see them every day. I get I said some stupid stuff and it’s not right of me. I love the kids so much and I’m willing to fight for them if I have to. I don’t want to give up rights to them. I was being an idiot. Those little guys are our kids. Don’t be like that and keep them away from me. I will seek counselling if need be.

I do have a lot going on in my life and it’s hard to be nice with all these thoughts and rumours everyone told me. I know you don’t care about me any more, but I still care about the family I once had. I just am having a tough time with not knowing if you are bringing them back. I get that you are having an easier time there, but don’t be selfish for your family’s sake.

You started a family in BC and it’s not right of you to move there or keep them away from me. [ 15 ] When the children did not return, the Respondent filed a Notice of Motion on December 8, 2020 to prevent the relocation of the children to Ontario. The matter was unable to be resolved at a Family Case Conference held on January 14, 2021, and at that time the presiding judge set a one day hearing for an interim order. It should be noted that this hearing, on which an order is now being made, was intended to be only an interim order and not a final one.

What this means is that it is important that some sort of court order be put in place on matters affecting parenting time and where the children will reside, but that a more permanent plan will have to be put in place as to where the children will reside in the long term.

The order that will now be made will only set the order of things until either the parties can agree on a more long-term solution to the problem, or until this court can impose one on them. [ 16 ] Since separating, both of the parties have availed themselves of counselling to help assist them in dealing with the consequences of the ending of their relationship. The Applicant saw a counsellor in Abbotsford before moving to Ontario. The Respondent also had a number of counselling sessions through his employee assistance program.

He testified that for the first few sessions, he did not think that he was getting any benefit, but in later sessions, it seemed as if a breakthrough was being made and he felt that the counselling was beneficial. Position of the Parties [ 17 ] This application concerns where the children should reside on an interim basis until a final order can be made.

The parties themselves are free to live where they choose, but the Family Law Act prohibits one guardian from changing a child’s residence significantly without the consent of the other guardian or an order of the court. [ 18 ] The Applicant wants an order allowing the children to live in Ontario with her. She says that such an order is in the best interests of the children because now that she and the Respondent are separated, the children will have a better support network in Ontario than they will in British Columbia. She feels that the move is justified because in her opinion the Respondent is abusive.

She says that if she is allowed to relocate the children to Ontario, the Respondent could see the children in Ontario and that she would pay for him to fly there to see them once every three months. She says that he could also continue to have video chats with the children. [ 19 ] The Respondent asks for an order prohibiting the relocation of the children to Ontario. He notes that if the Applicant is allowed to relocate the children, that will drastically affect his ability to maintain a relationship with the children, gradually eliminating the role he plays in their life.

He says that the Applicant is capable of living in British Columbia, as she was doing before unilaterally deciding to move the children. He is not opposed to the children living primarily with the Applicant as long she is living some place where he can exercise his parenting time with the children without having to travel a great distance. Applicable Law 1. Best Interests of the Children [ 20 ] In cases where parental arrangements are in dispute,

section 37 of the Family Law Act requires a court to make such orders based only on a consideration of what is in a child’s best interests. The parties in this case were told that at the conclusion of the hearing. The proper order to be made in this case isn’t the one which benefits either of them, but rather the one that benefits the children. To determine what is in the best interests of a child,

section 37 mandates that 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. [ 21 ] For an order to be in the best interests of a child, it must consider how best to protect the child's physical, psychological and emotional safety, security and well-being.

Section 37 goes on to state that the court making the order may consider a person's conduct only if it substantially affects one of the factors listed above. 2. Relocation of a Child’s Residence Section 69 (2) of the Family Court Act gives a court the power to make an order permitting or prohibiting the relocation of a child a guardian.

Section 69 requires that in addition to considering the best interests of the child, the court must also consider some additional factors in a case such as this where the guardians do not have substantially equal parenting time with the child. The guardian who wants to change the child’s residence (in this case the Applicant) must satisfy the court that: (

i) the proposed relocation is made in good faith, and (ii) that the guardian seeking to change the residence of the children has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians as well as with other persons who have a significant role in the child's life . [ 22 ] If the court is satisfied of all of that, the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise. [ 23 ]

Section 69 goes on to provide, in subsection (6), that for the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including these factors that are listed in the subsection: (

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 proper notice was given under

section 66; and (

d) any restrictions on relocation contained in a written agreement or an order. Analysis [ 24 ] In this case, the Applicant says that she wants to move the children to Ontario because she describes the Respondent as emotionally and verbally abusive.

When asked directly, she acknowledged that there has been no physical abuse between the parties other than in an incident that took place over four years ago, and in that incident, it appears that both of the parties let their anger transition to pushing and shoving. [ 25 ] The Respondent himself acknowledges that he has said stupid and hurtful things to the Applicant for which he has later realized call for an apology. There are several difficulties however, that present themselves when one is asked to label the Respondent as abusive.

Firstly, it is not alleged that he has been abusive directly towards the children. It would be fair to label any remarks by the Respondent to the children that are disparaging of their mother as abusive, and the evidence certainly suggests that the Respondent has done this on more than one occasion. The bulk of the Respondent’s inappropriate behaviour appears to be unconnected to the children, and more as a reaction to the hurtful actions of the Applicant. [ 26 ] Specifically, the Respondent has felt hurt firstly by her infidelity, and by being mocked by her friend about this.

Secondly, he feels that he has reason to mistrust the Applicant after being led to believe that her taking the children to Ontario was intended to be short term, only to later discover that the children were not being returned.

Whether or not the Applicant took the children to Ontario never intending to return, her amended application and the length of time she took to tell the Respondent that she had changed her mind about this certainly makes her denial appear suspicious. [ 27 ] It is unfair to characterize the Respondent as verbally abusive by nature, when the instances of his verbal inappropriateness can be attributed to specific causes that are the result of hurtful choices made by the Applicant. This is not to suggest that the Respondent’s inappropriate remarks are justified or excused, or that they should continue.

However it is also unfair to suggest that his abusive conduct is at such a level as to justify the Applicant fleeing the province with the children. [ 28 ] The evidence suggests that the Respondent is aware of his wrongful conduct and realizes that this will have to change if he wants to have a more active role in the life of his children. His acknowledgement in his text message that he “said some stupid stuff” and that it was wrong for him to do so is a step in the right direction. He has also availed himself of counselling available through his employee

assistance program. He was reasonable in coming to an arrangement outside of court to provide for the financial support of his family. He also conducted himself civilly and respectfully at the hearing of this matter, both towards the Court and towards the Applicant. (This comment applies equally to both parties who were each very respectful of one another and of the court process.) [ 29 ] In this case, the evidence suggests that the relocation of the children from British Columbia to Ontario was not made in good faith, as that term is used in

section 69 of the Family Law Act. Firstly, the reasons for the proposed relocation suggest that the relocation was done more for the benefit of the Applicant than for the benefit of the children. Any verbal abuse on the part of the Respondent was not directed towards the children and concerned issues between the parties as spouses, not as parents. Even on the Applicant’s evidence, it does not appear to have been at a level that would justify the Applicant fleeing the province with the children. [ 30 ] Secondly, the proposed relocation is unlikely to enhance the general quality of life of the children.

The Applicant left secure employment for an uncertain future. While the children will enjoy the benefit of increased contact with the Applicant’s family, this comes at the price of diminishment of their ability to grow up knowing their father and building a relationship with him. Although the Applicant states that the move will increase her own emotional well-being, this may not be true in the long run.

Running from the consequences of one’s choices is not always better than confronting them directly. [ 31 ] Finally, there is reason to question whether or not proper notice of the proposed relocation was given under

section 66. While the Applicant did send formal notice on November 30, 2020, by then she had been in Ontario with the children for over a month. It is possible that this was unintentional and that her decision to convert the trip from a vacation to a relocation was an afterthought. It is equally possible that this was a tactical decision to use self-help rather than following the legal process. The amended application shows that this was something that had previously been contemplated by her.

Telling the Respondent that this was only supposed to be a two week visit when that does not appear to be the case only serves to injure trust between two adults who should be contemplating how they intend to co-parent now that they are living separate and apart. [ 32 ] For these reasons, the Applicant has failed to satisfy the court that the relocation is being made in good faith, as she is required to do under

section 69. She has also failed to satisfy the court that she has proposed reasonable and workable arrangements to preserve the relationship between the child and the Respondent. At the commencement of her evidence she was proposing that the Respondent only be permitted to see the children at her home and that his time with the children be supervised. Later in her submissions, she proposed that the Respondent fly to Ontario once every three months to see the children.

This is not a case where the Respondent’s conduct merits either supervised parenting time or that it be drastically reduced as the Applicant proposes. [ 33 ] The application for relocation is denied for these reasons. The Applicant will be afforded a reasonable period of time to return the children to the Abbotsford area, and will have until the end of June to re-establish herself here. If she fails to do so, the Respondent may apply to this court to have the Applicant removed as a guardian of the children until they are returned to British Columbia.

This is a drastic remedy that would be imposed only if the Applicant was wilfully non-compliant with the order to return the child, transitioning such non-compliance from a civil matter potentially to a criminal one. In this case the parties present as reasonable people and it is highly unlikely that it would ever come to this. Order [ 34 ] The order now being made is an interim order, which will be in place until a final order can be made. The Respondent has never filed a Reply to the Application that he was served with.

That Application is currently shown as “adjourned generally” so it will be up to the Applicant to decide if she wants to continue to operate under the terms of the order that is now being made, or if she intends to reopen these proceedings and proceed with her Application.

In the latter case, she will be required to serve the Amended Application on the Respondent. [ 35 ] In the meantime, because the interim order will be in force for some time, and because the parties are currently not operating under any other court orders, this order will be more comprehensive than simply stating that the application prohibiting relocation is granted. The following order is now made: Upon the court being advised that the name and birth date of each child is as follows: M.M.A.J., born [omitted for publication] J.E.J., born [omitted for publication] 1.

The court is satisfied that the Applicant R.N. and the Respondent J.J. are the guardians of the Children under s.39 (1) of the Family Law Act . 2. Pursuant to s. 40(2) of the Family Law Act, the Applicant and the Respondent will share equally all parental responsibilities for the Children as set out in s. 41 of the Family Law Act . 3. The Application by the Applicant to permit the relocation of the Children from the Province of British Columbia to the Province of Ontario is denied. 4.

The Application by the Respondent to prohibit the relocation of the Children from the Province of British Columbia to the Province of Ontario is allowed. Pursuant to s. 64(1) of the Family Law Act , neither guardian shall change the residence of the Children from Abbotsford or Mission, BC without first obtaining the written consent of the other guardian or further court order. 5. Notwithstanding the removal of the Children from British Columbia to Ontario in October of 2020 by the Applicant, this Court finds that the Children are habitually resident in the Province of British Columbia. 6.

The Applicant is to return the Children to Abbotsford or Mission in the Province of British Columbia by no later than June 30, 2021. The Children will reside primarily with the Applicant provided that she has established a residence in Abbotsford or Mission, BC by June

30, 2021. In the event that the Applicant has not established a residence in Abbotsford or Mission, or if the Applicant has not returned the children to Abbotsford or Mission, BC by June 30, 2021, the Children shall reside primarily with the Respondent until further order of this court. 7. In the event that the Applicant has not returned the Children to Abbotsford or Mission, BC by June 30, 2021, the Respondent may apply for an order under

section 51 of the Family Law Act removing the Applicant as a guardian of the Children. 8. Upon the return of the Children to Abbotsford or Mission, BC, the Respondent shall have parenting time with the Children at such times as agreed upon between the parties. If the parties are unable to agree, he shall have parenting time with the Children on the same

schedule as his parenting time was prior to the removal of the Children to Ontario. In addition, he shall have parenting time with the Children on July 1, 2021 from 10:00 a.m. until 6:00 p.m. 9. The parties having acknowledged that the Respondent has paid to the Applicant the sum of $1000 per month for the support of the Children since their separation. The Respondent will continue to pay the Applicant the sum of $1000 per month for their support unless otherwise agreed by the parties or until further order of this Court. 10.

In the event that the Applicant intends to proceed with her Amended Application to Obtain an Order, she shall serve a copy of the Amended Application on the Respondent and he shall file a Reply within fourteen (14) days of service. 11. The parties shall put the best interests of the Children before their own interests.

They shall encourage the Children to have a good relationship with the other parent and speak to the Children about the other parent in a positive and respectful manner and make a real effort to maintain polite, respectful communications with each other, refraining from any negative or hostile criticism, communication or argument in front of the Children. 12. This order may be amended with the consent of both parties in writing and filed with this court. _____________________________ The Honourable Judge K. D. Skilnick Provincial Court of British Columbia