T.J.R. v. J.L.K. Date:, 2016 BCPC 293

Citation: T.J.R. v. J.L.K. Date: 20160229 2016 BCPC 293 File No: F2094 Registry: Powell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: T.J.R. APPLICANT AND: J.L.K. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. SUDEYKO Counsel for the Applicant: Ian Fleming

Counsel for the Respondent: Stacey McCausland Place of Hearing: Powell River , B.C. Dates of Hearing: December 9, 10, 2015, January 26, 27, 2016 Date of Judgment: February 29, 2016 Introduction [ 1 ] This matter arises out of a separation of the parties that came just seven weeks following the birth of their child. That child is now almost 15 months old. The mother has been the primary caregiver and the father’s time with the child has been limited to mostly short, non-overnight periods. She has continued to breastfeed.

At the same time, the mother has put forward a proposal for relocation from Powell River to Nanaimo, B.C. in order to pursue her career aspirations. The father would like more time, and to include overnights, moving towards a shared parenting arrangement. [ 2 ] The issue for this court is how to balance the apparent wishes of the mother to pursue her career in Nanaimo against the effect such a move would have on the relationship between the child and the father. Background [ 3 ] The father, T.R. (“T.”), now aged 30, came to Powell River when his parents moved approximately 8 years ago.

They were later followed by T.’s siblings, a brother and sister, together with her husband and their two daughters. They have all made a life for themselves here. T., who has a grade 11 education, now works for his father’s contracting business as a carpenter and makes a reasonable living, with the security and flexibility that comes with such a relationship. He has roots here. [ 4 ] The mother, J.K. (“J.”), 31, who was raised primarily in the area just outside the City of Vancouver, came to Powell River 4 years ago as a result of a job offer for a public school (French Immersion) teaching position.

This followed her teacher training in Ontario and previous degree obtained at McGill, as well as some supplementary training. Her family support comes primarily from her mother, a retired learning assistant, who currently resides in White Rock, a suburb of Vancouver. J. also has a brother who resides with his wife on Gabriola Island, a short ferry ride from Nanaimo. Unfortunately J.’s father died prematurely, leaving her mother a widow. [ 5 ] J.’s evidence was that Powell River was essentially a transition job and that she had no intention to remain here over the long term.

However, she met T. in 2012 and in her words, “fell in love” and they began to plan a life together. They got engaged, moved in together and made wedding plans on two separate occasions, but these plans did not come to fruition, which she clearly stated was T.’s decision. They nonetheless continued to reside together and at some point J. unexpectedly got pregnant. [ 6 ] The child (“M.”) was born on [d.o.b.]. The parties separated on January 15, 2015.

The History of the Proceedings [ 7 ] Aside from the parties having entered into an Interim Consent Order in May, 2015, that simply specified the terms of the limited parenting time for T., there have been no other substantive orders or agreements. Although the parties concede that they have not specifically followed those terms and have made some parenting time adjustments along the way, I find that those adjustments have been minimal. T. initially received 2 hours on 2 occasions each week. Currently, T.’s parenting time is Thursday and Friday from 4-7 p.m., as well as 12-6 p.m. on Saturdays. No overnights.

The Applications [ 8 ] There are cross applications in this matter. On February 20, 2015, soon after separation, J. proposed relocation to Nanaimo, and set out a plan to allow transition towards parenting time for T. by way of alternating weekends. T. opposes that relocation plan. T. has applied for guardianship, increased parenting time, including overnights, and parental responsibilities, leading towards having an equal role. In the alternative, he proposes his home for the primary residence. [ 9 ] The applications are intertwined.

It makes some sense to first consider the issue of the parenting arrangement - parenting time and parental responsibilities - since a relocation proposal is analyzed from the perspective of what effect it would have on the relationship of the child and the other parent. The appropriate parenting arrangement may be a measure of that relationship. The Evidence [ 10 ] In addition to the parties themselves, the evidence came in through the testimony of their respective family members, including T.’s parents, sister and niece, as well as J.’s mother.

Some additional documentation regarding medical issues was also introduced. [ 11 ] However, there was significant email (and some Facebook) correspondence between the parties, and something called a Parenting Time Communication Binder (“Communication Binder”), which was suggested to the parties as a method of exchanging information during parenting time. The parties agreed to entering into evidence both the email and Facebook exchanges, (including some emails or letters exchanged between their respective legal counsel), and the Communication Binder.

Throughout the hearing I was referred to various portions of those “written communications,” but I have read all of them. They were of assistance to me in reaching my decision. Before the birth [ 12 ] J. took on the preparation for motherhood with the same zeal that she seemingly has with respect to her career. She read books,

took courses, and immersed herself in the role. Her mother travelled up to Powell River on a fairly regular basis. [ 13 ] J. says that T. did not get significantly involved in the prenatal experience, although he did attend some appointments and a class with her. It appeared he was prepared to allow J. to take the lead. After the birth [ 14 ] Some evidence was offered regarding the time around M.’s birth, which was complicated by some risk due to J.’s rare hemophiliac-type condition and the need for a caesarean section.

As a result, the period after the birth extended J.’s stay in the hospital to four days, followed by a period of required bed rest. Despite the possibility that M. is a carrier of this condition, it fortunately does not seem to offer any imminent serious health risk to her, and testing is not required until the age of 10. [ 15 ] Much was made of T. not sleeping in the hospital for those four nights (her mother slept there), although he attended the hospital after work each day.

J.’s mother would often leave when he was there and then return for the night, while T.’s mother also attended on some of the early mornings. [ 16 ] It was further suggested that after the return home, T. was less than attentive to J.’s needs and those of the baby. He was sometimes absent, although he offered some explanation. He took a week off work. He also assisted by doing some of the cooking and cleaning, and also changed and bathed M. He looked after M. when J. went for walks.

J.’s mother, who was still in the home for another four days after the birth and returned early in the New Year, somewhat reluctantly agreed that T. was involved and assisted to that extent. [ 17 ] However, both J. and her mother state that T. was not helpful at night to assist with such things as feedings, and that except while playing video games, he would sleep without the apparent ability to wake up as a result of the use of a sleep medication called Zopiclone.

I will return to the issue of that medication later in these reasons. [ 18 ] This post-birth period of the parties together with M. was sadly shortened when, after just seven weeks, they separated. It is of no great difference as to who initiated that decision, but it was T. that moved out from the home. After separation [ 19 ] Following the separation, J. clearly assumed the role as the parent with the primary responsibility and care of M. That role did not include, in a significant way, the father T. The question to be asked is why?

What is T.’s role in that lack of involvement ? [ 20 ] After the separation, T. could have been more communicative. More specifically, T. was initially slow to take a strong stand regarding his wish to co-parent. However, I also conclude that his initially tentative approach was based on his acceptance of J.’s dominant role regarding the care of a breastfeeding newborn. [ 21 ] Within a relatively short time, however, there was significant effort on his part to be more involved in parenting, both before and after receiving notice of J.’s relocation proposal.

That effort was reflected in the ongoing exchange through the communication binder and emails. What is J.’s role in that lack of involvement? [ 22 ] Having reviewed all of the evidence, and in particular the ongoing written communications, I found J. to have taken an approach that was often rigid and controlling, over-reactive, and limiting rather than encouraging of T.’s attempts to be more involved with his daughter, M.

The overwhelming evidence was that the efforts of T. to take on a greater role and co-parent M. with J. were met with direct or indirect resistance. [ 23 ] I will briefly review a number of incidents and issues that arose in the evidence, which illustrate that approach: The parenting time exchange [ 24 ] Following the separation, J. maintained that T. should not know where she lived with M., as well as insisted that the parenting time exchange take place in a public environment.

Initially that was at the “Starbucks” and when T. complained about that, J. then changed that to, of all things, the RCMP station parking lot. Eventually that location changed to the Airport. [ 25 ] However, there was absolutely no evidence to support any suggestion of harm or threat of harm by T. before or after their separation. Therefore, the conditions imposed by J. were clearly unnecessary and directly impacted on T.’s efforts to be involved with his daughter. The “banana incident” [ 26 ] This extraordinary incident used up an inordinate amount of our trial time.

That, however, is consistent with the inordinate amount of time that it seemingly took up in these people’s lives. In short, in late May, 2015, when M. was approximately 6 months old, T. gave her a very small amount of some mushy banana to try. In the Communication Binder, he wrote as follows: “Tried Banana with her at 5:10 She really liked it No reaction” [ 27 ] I find that he could not have expected to receive the response that he did. In other words, he did not do this with any intention to cause a negative response.

[ 28 ] That response, in the form of an email that J. actually acknowledged she wrote only after calming down, includes statements such as these: “I spent close to an hour crying after I picked M. up from you. I cried for many reasons: you have broken my trust, you have disrespected me as M.’s mother and primary caregiver, and you’ve made another poor parenting choice .

I also cried because I am now certain that the likelihood of us successfully co-parenting is slim to none . … It is abhorrent and incredulous to me that you would start M. on solid foods without even discussing it with me. … I am simultaneously disappointed, flabbergasted, discouraged, angry and deeply saddened by what you have done.” … (my emphasis) [ 29 ] Some additional time in the evidence was spent on the basis for T.’s decision (in the sense of it otherwise being an appropriate time to introduce some solids), which he suggests came from the information he received from various sources, such as parenting information on the internet and from the family doctor, Dr.

Strydom. Much was made of his statement that he had received the information about starting some solids from Dr. Strydom just three weeks previously, when he admitted that was incorrect and that he meant to say three months earlier. I accept that explanation as him having misspoken. I also conclude that the introduction of some solids is supported in the literature. [ 30 ] But that is not the only issue. I acknowledge that J. was correct to point out that she was overseeing M.’s feeding needs and schedule, as it was her wish to do and T.’s apparent willingness to accept.

T. erred to not discuss this matter first with J. In that regard, there was, albeit unwittingly, a breach of trust. [ 31 ] However, J.’s response to this error by T. was an extraordinary overreaction and appears to arise out of her need to have and exert control. The safety of the farm [ 32 ] The court was presented, primarily through T.’s case, with a description of the almost idyllic setting of a small farm property, with a number of animals, barns, fields and the support of T.’s family as a place for M. to spend her time. That is the property where T. now resides along with his parents and brother.

His sister, along with her husband and their two daughters, live nearby. J. and T. spent much time at the farm before their separation. T. is finishing construction of a separate two-bedroom apartment on this same property, which he hopes will be for M. and him to live in, at least part of the time. [ 33 ] Despite that setting, J. focused her attention on what she alleges to be dangers to M. on the farm, including the butchering facilities, as well as the farm equipment.

She raised these concerns in her correspondence with T. and in her evidence in support of her case. [ 34 ] However, I find that there was no evidence that M. was ever left in unsafe circumstances on the farm either before or after separation. Having heard from not only T., but also his father, mother, sister and niece, I conclude that J. had no reason to believe that M. was at any real risk on the farm. [ 35 ] But bringing these so-called concerns to T.’s attention did not end the matter for J., as you will see below.

The gun issue [ 36 ] This issue arose in early July, 2015, during a time when the parties were perhaps having their greatest difficulty in communicating. It gave rise to a period of increased correspondence between the parties, including their legal counsel. [ 37 ] The “gun issue” was a concern that J. expressed with respect to the lack of safe storage of firearms at the farm where T. now lives and M. spends her visits. T. is a hunter and even did guiding in northern B.C. in earlier years.

There is no suggestion that he is not fully licensed and the correspondence confirmed he has his gun safety courses. [ 38 ] In cross-examination, it became clear that J.’s apparent concern arose out of a single occasion a long time before separation when J. observed a gun in the living room of the R. farmhouse. But J. chose this particular time during their separation to raise this issue, which resulted in T. purchasing a gun safe, in order to address that apparent concern.

The general concern about gun safety is a fair one, although there was no evidence that M. was ever at risk. [ 39 ] Again that did not end the matter, as you will see below. The allergic reaction [ 40 ] The evidence presented at trial confirmed that during one visit at T.’s home in late July, 2015, M. had an apparent allergic reaction to something. T.’s mother thought it was a reaction to a cooking tool that was substituting for an infant toy, which M. seemed to enjoy playing with. There was some swelling around her upper lip and some spots round her mouth.

This allergic reaction appeared right at the end of T.’s visitation and M. was not showing any distress. Therefore T., with his mother’s suggestion, decided not to go to the hospital and then call J., which they felt would cause her unnecessary panic. Instead they took M. right to J. and explained the reaction. In the end M. was fine. [ 41 ] The correspondence reveals that J.’s need for control and expression of derision is not reserved for T. J. concludes the reaction was to food improperly given to or received by M. and not the “cooking tool” and suggests T.’s mother is, in effect, dishonest. This is

included in an email sent from J. to T. and his mother, K.: “…It’s clear to me and M.’s physician that she ate something she shouldn’t have. Either she was given it deliberately against my wishes and Dr. Strydom’s recommendations, or she put it in her mouth when no one was paying attention . I know I didn’t get the whole story from you, and if anyone is puzzled, it’s me.

K., you said, “If this is my fault for giving M. something that caused a reaction I am sorry.” I’m telling you clearly: It is your fault and you did cause her harm .” (my emphasis) [ 42 ] I heard from T.’s mother during the trial with regard to this matter and found her to be credible and willing to find the best in people, including J. [ 43 ] Once again, that complaint and accusation towards T. and his mother did not end the matter.

The call to the Ministry [ 44 ] This relates to the earlier incidents of the “allergic reaction,” the “safety of the farm,” and the so-called “gun issue.” [ 45 ] On July 27, 2015, J. contacted the Ministry of Children and Family Development (“MCFD”) and brought all of these matters to their attention.

That resulted in a letter to T. from an MCFD social worker and her supervisor dated August 21, 2015, confirming that “report of concern.” Fortunately, and quite properly, there was no formal investigation. [ 46 ] Aside from the fact that these were relatively minor concerns that did not justify more than passing comment from J. to T., or his family, it is simply not believable for J. to suggest, as she did, that this call was meant as a pure inquiry.

As a school teacher, J. must constantly consider the issue of possible child abuse/neglect and the effect of such a call to child protection authorities. [ 47 ] Therefore J. must have known that this report to the MCFD had the potential to significantly affect T.’s relationship with M. The Emails/Communication Binder [ 48 ] The incidents and issues referred to above are illustrative of J.’s approach, but are far from the only illustrations. [ 49 ] As described above, these written communications were entered into evidence.

Therefore, I had both these and the benefit of having heard the evidence of the parties and their witnesses regarding several of the contentious issues. However, quite separately from the content of the communications, it is the tone and tenor of the communications that stands out. [ 50 ] I found that on many occasions J. was overly critical and condescending towards T.’s efforts to be more involved in M.’s parenting.

J. attempted to explain in her written communications to T., and it seemed in her evidence, that her approach was necessary in order to essentially “instruct” T., so as to address his incompetence and to protect the “best interests” of M. I did not find that approach to be justified on the basis of the evidence regarding T.’s parenting skills.

Summary [ 51 ] In the end, I conclude that T.’s limited parenting time is primarily the result of J.’s approach to limit rather than encourage that time. I now turn to T.’s parenting time and parental responsibilities application.

The Parenting Time and Parental Responsibilities Application [ 52 ] T. is seeking, pursuant to s. 45 of the Family Law Act (“ FLA ”), both parenting time and parental responsibilities, towards a shared and equal parenting arrangement. [ 53 ] The plan for T.’s parenting time would be to reside on the farm property, where his parents and brother also reside, and his sister and her family are nearby. He is in the final stages of a two-bedroom apartment for him and M. to spend overnights.

T.’s work for his father offers some flexibility and he states he will take Fridays off to be with M. [ 54 ] We also heard from T.’s father, who confirmed T.’s job and longer term opportunity with his business. He described the farm setting and supported T.’s parenting skills. [ 55 ] T.’s mother and sister echoed those positive observations of T.’s parenting of M. They both work part-time and can offer some daycare assistance.

T. also has two nieces, and we heard from one, of baby-sitting age, who is fully qualified and of course knows and loves M. [ 56 ] I was impressed with these witnesses and conclude that T.’s home is part of a very positive environment, and M. would be safe and well-cared for there. [ 57 ] Although T.’s evidence was aimed primarily at a shared parenting arrangement and he clearly values J.’s strength as a mother, his alternative application includes his being the primary residence, should she go to Nanaimo. The Law [ 58 ]

Section 37 of the FLA is the guiding provision to an application for parenting time and parenting responsibilities. The “best interests” of the child, including those enumerated in s. 37(2), is the only consideration of such an application: Best interests of child 37(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

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

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

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

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

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

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.

Analysis [ 59 ] In the end, I conclude that T.’s involvement in M.’s life has been insufficient to fully benefit her and, in particular, to fully address her “emotional well-being.” The evidence of all the witnesses, including J., is that T. has established a bond and M. responds to his involvement in a very positive way. [ 60 ] He is fully capable of exercising parenting time in a responsible manner and in a positive and safe environment, particularly with the involvement of his extended family. [ 61 ] He can offer the stability that is required for her age and stage of development.

He has roots and family. [ 62 ] In that regard, there is no reason that there should not be overnights and extended periods in his care, although that will have to be done through a transition period, to take into account the history of care to this point. The pick-ups and drop-offs should take place at the parties’ respective homes. [ 63 ] The issues of breastfeeding, should that continue, can likely be addressed through the provision of breast milk by J. during his parenting time.

Moreover, M. is now almost 15 months old and if there is no way to accomplish that, then the balance must rest in favour of M.’s time with her father. That is to say, I find that M.’s best interests lie in her having increased time so as to maintain a bond with her father and that outweighs the benefit of breastfeeding at this stage. [ 64 ] I further find that T. is also fully capable and should have a role in some of the decision-making concerning M., by way of parental responsibilities.

That would certainly cover the times in his care, but he should also have some influence on decisions concerning M. otherwise. [ 65 ] Having determined that it is generally in M.’s best interests that the parenting arrangement needs to be adjusted in order to continue and strengthen the bond that has been established between M. and her father T., I now turn to J.’s relocation proposal. The Relocation Proposal [ 66 ] J. gave notice of her relocation wishes on February 20, 2015, soon after separation, and presented a plan.

That plan is two-fold: (1) she would move to Nanaimo on Vancouver Island in order to both work as a teacher and take a master’s degree program at Vancouver Island University for the purpose of advancing her career towards administration; and, (2) her mother will be moving to Nanaimo and will, if relocation is allowed, buy a house that J. and M. can live in essentially rent-free and her mother will provide child care. J. states that she would work only three days a week, whether she moves to Nanaimo or remains in Powell River.

This move would occur as early as this spring, which is perhaps a month or two from now. [ 67 ] In support of that plan, J. submits that an administration position has always been her ambition, that it will increase her salary substantially, and that remaining in Powell River will not allow for that administrative advancement. She presented evidence that she will have no trouble obtaining employment in Nanaimo, particularly with her French Immersion qualifications.

The master’s degree program is designed to be completed by working teachers and was described as in class work on Fridays and Saturdays for five weekends during the term and a full week during the summer vacation period.

The evidence also revealed that this course and qualification could be obtained either online or, alternatively, by attending from Powell River, but J. maintained that she is more of a live group participant learner and that the administrative positions do not exist in Powell River over the longer term. [ 68 ] The evidence is that while the township of Powell River has some 20,000 people, it is essentially land locked in the sense that, beyond an airplane, ferry travel is required initially to Vancouver Island and followed by highway travel to reach larger destinations such as Nanaimo (which I note has a population of 94,000), with a further ferry to get to Vancouver.

The travel from Powell River to

Nanaimo is in the range of 3½ hours each way, including possible ferry waiting periods. The winter can affect ferry service on occasion. [ 69 ] As for the accommodation of T.’s role in M.’s life, it is proposed that he initially have parenting time with M. for somewhat extended periods, not overnight, but working towards a single overnight at 18 months old and on an alternating weekend basis starting at 24 months old. She is willing to travel at her cost to Powell River for at least a portion of that transition.

The Law [ 70 ] The significance of the Interim Consent Order entered by the parties is that the FLA provides that the court must look to Division 6 - Relocation (s. 65-71), rather than s. 46, in its analysis of the relocation question (see L.J.R. v. S.W.R. , 2013 BCSC 1344 ). The courts have offered some divergent views on the matter, including the position that an Interim Order (and perhaps without the representation of counsel, which is not the case here) would not always cause the triggering of Division 6 (see S.J.F. v. R.M.N. , 2013 BCSC 1812 ). On my analysis, that is not the prevailing authoritative view.

I will follow the prevailing view that Division 6 applies to this case. Turning first to s. 65: Definition and application 65

(1) In this Division, “ relocation” means a change in the location of the residence of a child or child's guardian that can reasonably be expected to have a significant impact on the child's relationship with (

a) a guardian, or (

b) one or more other persons having a significant role in the child's life. This Division applies if (

a) a child's guardian plans to relocate himself or herself or the child, or both, and (

b) a written agreement or an order respecting parenting arrangements or contact with the child applies to the child. Is the relocation reasonably expected to have a significant impact on M.’s relationship with her father? [ 71 ] I understood this issue was not in dispute. In any event, I indeed make the finding, pursuant to s. 65 of the FLA , that the proposed relocation to Nanaimo can reasonably be expected to have a significant impact on M.’s relationship with her father, T.

Although the time and distance from Powell River to Nanaimo is not as great as many relocation proposals, this still involves a ferry and highway travel of approximately 3½ hours each way and some not insignificant cost. It essentially limits contact to weekends for a working person on a usual work schedule, which is the case for T. [ 72 ] That finding simply establishes the definition is met and the basis for the need to consider the relocation proposal. With regard to that consideration, I now turn to s. 69 of the FLA : Orders respecting relocation 69

(1) In this section, “ relocating guardian ” means a guardian who plans to relocate a child.

(2) On application by a guardian, a court may make an order permitting or prohibiting the relocation of a child by the relocating guardian.

(3) Despite section 37(1) [best interests of child] , the court, in making an order under this section, must consider, in addition to the factors set out in section 37(2), the factors set out in subsection (4)(

a) of this section.

(4) If an application is made under this

section and the relocating guardian and another guardian do not have substantially equal parenting time with the child, (

a) the relocating guardian must satisfy the court that: (

i) the proposed relocation is made in good faith, and (ii) the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life, and (

b) on the court being satisfied of the factors referred to in paragraph (a), the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise.

(5) If an application is made under this

section and the relocating guardian and another guardian have substantially equal parenting time with the child, the relocating guardian must satisfy the court: (

a) of the factors described in subsection (4)(a), and, (

b) that the relocation is in the best interests of the child. So what difference does that Division 6 - Relocation analysis make?

[ 73 ] Under s. 46(2), in addition to the best interests as set out in s. 37(2), the court is simply to consider the reasons for the change of location and must not consider whether the guardian seeking to move would do so without the child. [ 74 ] Division 6 provides for somewhat different (and arguably more onerous) considerations, depending on the extent of each parent’s involvement with the child.

Pursuant to s. 69(4), if the parties do not have substantially equal parenting time , the parent seeking relocation must satisfy the court that the proposed relocation is being made in good faith , and that there are reasonable and workable arrangements to preserve the relationship with the other parent.

If the applicant can satisfy those two requirements, the move will be presumed to be in the child’s best interests unless the other party can prove otherwise. [ 75 ] If there is substantially equal parenting time , then pursuant to s. 69(5) that latter presumption does not apply and the onus rests with the applicant parent to satisfy the court that the relocation is in the child’s best interests .

In either case, the court must not consider whether the applicant parent would move if relocation is not permitted. [ 76 ] While I conclude that the authorities support the application of the factors in the Division 6 analysis are to be applied as above, I note that the benefit granted to the parent with the bulk of the parenting time - the presumption of best interests upon meeting the other requirements - may in some cases result in some unfairness.

The intention of that benefit, I assume, is to recognize that the parent with the great majority of the parenting time is the one most “connected” to the child, such that a relocation will be less potentially detrimental to the child and therefore presumably in their best interests.

That has a basis in logic. [ 77 ] However, in a case where the amount of parenting time is reduced by virtue of circumstances outside the full control of the opposing parent, that benefit for the relocating parent may be unfair to the opposing parent who would wish to have greater parenting time towards an equal role in the child’s life and has not yet been given an opportunity to do so. [ 78 ] I find that to be the case here. The fact that M. was a new born and J., understandably, focused on breastfeeding, leads to the inevitable result that M. spent the bulk of her initial time with her.

The proposal for relocation then came soon after separation, and the time after that was spent, as I have found, with T. seeking and J. refusing, additional parenting time. [ 79 ] Despite that apparent possible unfairness, I am not inclined to follow the suggestion of counsel for T. and apply s. 69(5) rather than 69(4), on the basis that the relocation application was made before the Interim Consent Order.

There is no direct authority suggesting that is the appropriate approach. [ 80 ] In any event, the parent proposing relocation, in this case J., must still satisfy the requirements of good faith and a reasonable and workable arrangement to preserve the relationship with the father, pursuant to s.69(4)(a). I now turn to those requirements. Is the proposed relocation being made in good faith? [ 81 ] The FLA provides guidance in this analysis at s.69(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. [ 82 ] With respect to s. 69(6)(

c) and (d), there is no doubt that notice was given and in a timely manner, and there is no restriction on relocating in an order or agreement. [ 83 ] Turning to s. 69(6)(

a) and (b), having heard the evidence, I conclude that J.’s ultimate goal to get her master’s degree and enter administration is a genuine one. I am also satisfied that it cannot be achieved in the long term in Powell River, in that administration positions are not available here. [ 84 ] I also find that the opportunities for employment in Nanaimo with her current qualifications are real and immediate, in the sense that she would likely get a job as a French Immersion teacher if she were to relocate.

Undoubtedly her mother is also genuine in her intentions to move to Nanaimo, which she stated she is doing in any event, and to buy a house with a suite to accommodate J. and M. To that extent, the “reasons for the proposed relocation” have some legitimacy, although that may not be the only motivation. [ 85 ] As for the other potential benefits to M. directly by moving to the larger, more populated city of Nanaimo, such as increased resources and somewhat closer proximity to Vancouver, I conclude that those are of no significant benefit to M. at this particular time.

While I also see some benefit to M. regarding the arrangement with J.’s mother to provide the additional financial assistance of free rent and child care, it is also the case that M. would be leaving behind, for the most part, significant supportive family on T.’s side in Powell River. [ 86 ] Where the relocation application begins to become questionable is in relation to the timing, not of the notice, but of the relocation itself. [ 87 ] J. is a three-year teacher who is, by all accounts, highly valued in that role. She came into the position in Powell River in the program’s infancy and has had a large

part in its development. She has now taken her maternity leave to care for M., and an additional leave to deal with the stress of this unfortunate proceeding, but can return to that job. She is now seeking to leave that position and move

to Nanaimo to hopefully obtain employment and at just three days a week, so as to be home more often for M. She maintains that 3-day work week is also her intention even if she were to remain in Powell River. [ 88 ] If the ultimate goal is to obtain her master’s degree and get into administration, I find that can as easily be achieved by remaining for now in Powell River as it can be in moving to Nanaimo.

The evidence established that she can pursue her master’s degree online, but even recognizing her wishes and the potential benefit to in-class group participation, she can do so by attending the five Friday/Saturday classes per term and the week-long in-class sessions during the summer school break. She may require the Friday as one of her days off from teaching.

J. can do this by commuting from Powell River and will have the benefit of her mother’s home (no matter the size), and support to do so. [ 89 ] It is also my view that there will be no delay to J.’s ultimate goal to become qualified and considered for administration. She will obtain her master’s degree as she would have, while still working. As just a three-year teacher and newly located, the likelihood of being considered ready for administration is very small. Moreover, working just three days per week is not likely to enhance that prospect.

To that extent, the application is, as was suggested by T.’s counsel, simply premature. [ 90 ] In

summary, at this stage I find there is not a likelihood of enhancing the “general quality of life” of M., in terms of either “financial or educational opportunities” for her or her mother, J. Nor do I see any likelihood that relocation will increase M.’s “emotional well-being.” [ 91 ] The additional argument was forwarded that relocation will have the effect of “increasing [the] emotional well-being” of J., and by implication, improve the “quality of life” of M. I reject that argument.

While it is clear that the break up has led to emotional turmoil for both parties and counselling would be encouraged, moving to Nanaimo is not an obvious remedy for that emotional turmoil. No evidence beyond that of J. stating she will be happier in Nanaimo was offered to support the idea that M.’s quality of life will improve. To give that aspect any weight in these circumstances, I would require expert evidence. [ 92 ] Does this finding lead to the conclusion that J.’s application to relocate is not made in good faith? Not necessarily.

The court must consider “all relevant factors,” in addition to those enumerated in s. 69(6). [ 93 ] One of the other relevant factors in the “good faith” analysis is, in my view, the underlying motivation to relocate. Having considered all of the evidence, and in particular the timing of the relocation proposal so soon after separation and J.’s approach to T.’s efforts to parent, I conclude that the decision to relocate was also based on J.’s wish to simply be “rid of” T., his family, and Powell River.

A move with M. to Nanaimo would, in part, accomplish that goal. [ 94 ] I find that even without this additional factor of an ulterior motive, the relocation proposal is not made in good faith. [ 95 ] Although it appears that finding effectively ends the relocation issue, s. 69(3) states that the court must, in addition to the factors in s. 69(4)(a), also consider the factors in s. 37(2) with respect to the “best interests” of the child. In turn, in C.M.B. v.

B.D.G. , 2014 BCSC 780 , Madame Justice Fleming says that best interests effectively “trumps” good faith and reasonable arrangement for preserving the relationship with the other guardian, and that relocation may be granted where it is exclusively in the child’s best interests. Best Interests [ 96 ] Turning to that analysis, in addition to my findings that M.’s emotional well-being and quality of life will not be improved by a move to Nanaimo as proposed, there is a great deal to be lost by such a move.

M.’s relationship with T. will be significantly damaged by the period of transition with limited parenting time and long gaps between those times. Further, the proposed final

schedule of alternating weekend parenting time, particularly for a child of M.’s age, presents as far too infrequent. [ 97 ] In addition to the relationship with T., M. would lose in large part the relationship she has with his extended family on the farm.

Any loss that remaining in Powell River would mean with regard to the relationship with J.’s mother will be reduced by the fact that she is moving to Nanaimo and will be closer for ongoing visits. [ 98 ] In turn, the need for stability, considering M.’s young age and stage of development, will be negatively affected by the travel from highway to ferry and back again on an ongoing basis, as will the distance between her two homes. [ 99 ] Therefore, in addition to my finding that the relocation proposal was not made in good faith, I conclude that it is not in M.’s best interests to relocate with her mother to Nanaimo.

Are there reasonable and workable arrangements to preserve the relationship with the father? [ 100 ] Based on my finding above, it is a moot point; however, I would also add that the proposal was not, in my view, a reasonable and workable arrangement to sufficiently preserve M.’s relationship with her father, as required under s. 69(4)(a)(ii) of the FLA . The delay in both initiating significant ongoing parenting time with M., including overnights, together with the extensive period between parenting time with an alternating weekend

schedule for a child of this age, leads me to that conclusion. What about the long term? [ 101 ] The concern, as will be addressed in the terms proposed yet to come, is that the relationship between M. and her father needs to be allowed to develop. That is in regard to not only his parenting time, but also his involvement in decision-making. [ 102 ] However, once that role and bond is strongly established, then the room for variation of parenting time is more easily achieved.

That is to say, any future proposal on similar terms to the one proposed here by J. may indeed be reasonable and workable and preserve the relationship that is then well-established. One would hope that can be achieved through agreement by the parties. But if not, any

future application will be in the hands of the decision-maker at that time. [103] J. is an exceptional parent with M. She must learn to be as exceptional a parent to M. and that will require recognition of thevalue of T. as M.’s father. It will also require her letting go of some of the control that she has so strongly held on to during this dispute. Case Law [104] I have considered the cases provided by both counsel and they have, in some instances, assisted me with the analysis of the legalprinciples. Those cases include: A.J.D. v. E.A.E., 2013 BCSC 2160 ; Allard v. Sorace, 2001 BCSC 352 ; Karpodinis v.

Kantas, 2006 BCSC 555; L.J.R. v. S.W.R., 2013 BCSC 1344 ; C.A.P. v. M.S.P., 2015 BCSC 183 ; Pepin v. McCormack, 2014 BCSC2230 ; S.S.L. v. J.W.W., 2010 BCCA 55 ; Frotsch v. Begin, 2015 BCCA 403 ; Cousens v. Ruddy, 2002 BCSC20; Orring v. Orring, 2006 BCCA 523 ; C.T.H. v. N.P.M., 2014 BCPC 371 . [105] However, all of these cases are distinguishable from our facts, as one often sees in the unique circumstances of family relations.

Conclusion [106] Having denied the relocation proposal, and before returning to the parenting time and parental responsibilities order, I will turnto the issue of my findings regarding J.’s approach to T. [107] After hearing and reviewing all of the evidence, it is apparent to me that there was a “collision” of factors that led to an approachby J. that was not conducive to T.’s involvement. [108] Firstly, she is more of a “big city” person than a “small town” person. The decision to take the job offer in Powell River wasrelated to her career and was likely transitional, at least when she arrived.

But as she stated, she fell in love with T., and perhaps alsowith his family. It would be pure speculation to wonder if she would have been satisfied in Powell River if things had indeed worked outbetween her and T. It did not work out and now she is in a place that she would not otherwise choose to be. [109] Secondly, the parties remained together after the failed wedding in what must have been a strained relationship, but with somecontinuing hope that things might work out. Therefore, when the pregnancy came, despite some joy for the parties, it must have addedsignificant additional stress.

Finally, when the birth came and the shock of being new parents was added to that, the break up almostseemed inevitable. [110] Therefore, J. had gone from a short stop on her goal-oriented career, to now being a single mother to a newborn, located in whatis for her a small, isolated community.

Although, as previously stated, she has embraced motherhood, it would take no great leap oflogic to conclude that she might see T. as at least partly responsible for the significant change in her circumstances. [111] That “collision” of factors may help explain J.’s approach. [112] It is also my observation that despite being at one time in love and at least planning a wedding, T. and J. are quite differentpeople. J. is organized and ambitious. T. is “laid-back” and seemingly happy with his current station in life.

Having said that, it is alsothe case that different styles of parenting can very much complement one another and I am of the view that can be the case for these twodevoted parents. [113] As stated earlier, J. is an exceptional mother. She is loving and generally has her daughter’s best interests in mind, with the oneexception being that of T.’s role. What she must realize is that parenting is not the exclusive domain of the well-educated or even thewell-informed.

However, I am convinced that her intelligence and her wish to put her daughter’s well-being above all else, can lead to aless controlling approach that is beneficial to M. T. can, with the assistance of his supportive family, offer a safe and reasonablystructured environment for M.; but he would benefit from J.’s superior organizational skills. It is my hope that the parties can worktogether, but even if not, they can still co-parent. [114] I would also hope that the relationship that once existed between J. and T.’s family can, in some measure, be restored. That isonly a hope.

If so, it will serve M.’s best interests; but if not, the parties are all mature enough to put M. first and foremost. Parenting Time [115] For all of the reasons previously cited, I am increasing the parenting time for T., and to include overnights. I also find that thebest interests of M. require a transition period in which J. is to retain the majority of the parenting time in the short term and, to a lesserextent, in the long term. [116] However, there is no reason that T. should not have M. in his care at this stage for at least three occasions per week, one ofwhich should be an overnight immediately.

These overnights can be for either of the Friday or Saturday from 12:00 p.m. until thefollowing day at 12:00 p.m. My understanding was that T. planned to take Fridays off and so this plan could work for either day. Anadditional overnight would be added after 3 months during the week and would be from after work at 4:30 until the next day when M.would be returned to J. After a further 3 months that weekday overnight will be increased to two consecutive nights and the oneweekend night will have the hours increased.

The final adjustment will mean 74.5 hours (44%) for T. and 93.5 hours (56%) for J. [117] Let me add that this Order provides a minimum period of time, but that the schedules that the parties come up with together,while still respecting the spirit of the Order, are to be preferred. For example, it may be a preference for J. to go with M. to see hermother in Nanaimo on the weekend and that may require T. adjusting his usual parenting time in exchange for increased time during theweek. It may also be preferable, when the parties are unavailable during parenting time due to work, for care to be performed by family

members rather than daycare. Adjustments of time for that purpose are also to be encouraged. [ 118 ] The purpose of this Order is to increase both the amount of parenting time and allow for more frequent contact for T., without requiring M. to be in constant transition. It may be that over time it is in M.’s best interests and agreeable to the parties to move to an alternating weekend

schedule where M. would be with one of the parents for the entire weekend while also having some mid-week contact, but that would reduce the frequency of contact and is not perhaps in her best interests at this time. Further down the road, an alternating week on and week off may be appropriate and I leave that to the parties. The sleep medication [ 119 ] This was an area of concern that was brought up by J. in her evidence and was to some extent supported by the evidence of her mother and the medical evidence. I find that it is a legitimate concern.

Although J. herself had utilized this same medication for a short time (and also takes a small dose of antidepressant), it is clear that T.’s use of Zopiclone has now stretched to some 5 years and would appear to be some form of habit, if not dependency. More significantly, the evidence was that following its use T. can enter a state of sleep to which it is difficult to wake him. That is a legitimate concern with respect to any overnights with his daughter. For that reason, he is not to use or be under the influence of any sleep medication during any parenting time.

Parental Responsibilities [ 120 ] I have considered the roles of the parties up to this point and conclude that the proposal put forward by J.’s plan is appropriate. It will certainly take some cooperation on the part of the parties, but I am confident they can work together. Child Support [ 121 ] I received evidence that T. has paid Child Support without a court order since separation. Although his income was $31,600 in 2014, he estimates his 2015 income at $41,500. It is J.’s position that he pay $364 per month based on an income of $40,000 per year.

Child Support in the amount of $364 will continue to be payable by T. to J. for a further 6 months until the end of the transition on September 1, 2016, at which point Child Support will be recalculated on the basis of their respective incomes. [ 122 ] In

summary, I order as follows: 1. Guardianship has been established for both parents pursuant to s. 39(1). 2. Pursuant to s. 69(2), I prohibit the relocation of the child, M. from Powell River to Nanaimo, B.C. 3. Parenting time to the father, T.R., as follows: Starting March 1, 2016, T. will have parenting time on either: (a) (

i) Friday at 12:00 p.m. to Saturday at 12:00 p.m., or (ii) Saturday at 12:00 p.m. to Sunday at 12:00 p.m., and (b) 2 week nights, not to be consecutive, from 4:30 p.m. to 7:00 p.m. Starting June 1, 2016, in addition to (a)(

i) or (ii), to increase one week night from 4:30 p.m. to 4:30 p.m. the following day and retain the remaining one week night from 4:30 p.m. to 7:00 p.m. Starting September 1, 2016, the weekend night (beginning Friday or Saturday) will increase from 9:00 a.m. to 12:00 p.m. the following day and the week day will be extended to two consecutive nights from 4:30 p.m. to 4:30 p.m., with no additional prescribed week night parenting time. During his parenting time, T. is not to consume any sleep medication, prescribed or otherwise. Pick-ups and drop-offs are to be at the parties’ respective homes.

The parties shall split all Summer, Christmas, Spring Break holidays equally unless otherwise agreed upon. 4. Parental Responsibilities: a. The parties shall have parenting responsibilities pursuant to s. 41 (a)-(

c) while M. is in their respective care; b. The parties shall have shared parenting responsibilities pursuant to s. 41 (d)-(l); c. In the event the parties are unable to agree following discussions, J. shall have the right to make the decision and T. shall have the right to have that decision reviewed by the court pursuant to s. 49 of the FLA ; d. The parties shall sign an Order for M. to obtain a passport which shall remain in J.’s possession and will be provided to T. should he wish to travel outside of Canada. 5. Child Support: T. shall pay J. the $364 monthly payment until the transition is complete on September 1, 2016, whereupon Child Support shall be

determined based upon their respective incomes. 6. Extraordinary Expenses: The parties shall share extraordinary expenses pursuant to

part 7 of the Child Support Guidelines on a pro rata basis. 7. Determining Income: The parties shall exchange tax returns and notices of assessment by June 30 of each year and any adjustments shall be deemed to take effect on July 1 of each year. 8. Disputes: The parties shall attend mediation, prior to making an application to the court, if there are disputes over parenting arrangements, child support or extraordinary expenses. The parties shall share the cost of mediation equally. _______________________ The Honourable D. Sudeyko Provincial Court Judge