J.M.C. v. D.J.C. Date:, 2016 BCPC 129

Citation: J.M.C. v. D.J.C. Date: 20160428 2016 BCPC 0129 File No: F25354 Registry: Cranbrook IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J.M.C. APPLICANT AND: D.J.C. RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE SHEARD Counsel for the Applicant: M.B. Fuchs

Counsel for the Respondent: K.K.L. Tse Place of Hearing: Fernie , B.C. Date of Hearing: April 28, 2016 Date of Judgment: April 28, 2016 A.

Introduction [ 1 ] THE COURT: These are my reasons for decision with respect to the mother's application filed January 26, 2015, regarding an agreement filed December 30, 2014, and the father's reply with counterclaim filed February 24, 2015, concerning their daughter, J.E.A.C., “J.”, born [omitted for publication]. [ 2 ] On October 9, 2014, the mother signed a written separation agreement which is dated and was signed by the father September 30, 2014, which I will refer to hereafter as the Written Agreement. The Written Agreement was filed in this court, as I say, on December 30, 2014.

Clause 4 of that agreement provides that the parties have "joint guardianship" and that they share the parental responsibilities for J.

Clause 11 essentially provides that the parties have equal shared parenting time and clause 12 provides that neither party will relocate J.'s residence from Fernie and Sparwood without a court order or written agreement. [ 3 ] About three-and-a-half months after that agreement was signed, the mother applied to set aside or replace the Written Agreement seeking an order that J. reside primarily with her, primary responsibility for making the day-to-day decisions affecting J., parenting time for the father as may be agreed to between the parties, child support, special expenses, and permission to relocate J. to Nanaimo. [ 4 ] In turn, the father applied for an order prohibiting the proposed relocation of J. and to also vary the Written Agreement for him to primarily have parenting time and parental responsibilities.

In his evidence, however, as specified in Exhibit 10 and in submissions, he seeks a continuation of shared parental responsibilities and parenting time, but on a specified schedule. [ 5 ] In the balance of these reasons, I will first review the background of this family; second, I will review the positions of the parties; third, I will identify the issues engaged; fourth, I will analyze those issues; and fifth, I will provide a conclusion and make an order. B. The Background Facts [ 6 ] The mother is 29. She was born [omitted for publication], in Nanaimo where she grew up and where her father continues to reside.

Her mother lives in Parksville and her only sibling, a sister, lives in New Zealand. [ 7 ] The father is 39. He was born [omitted for publication], in Hastings, Ontario, where he grew up and where his parents continue to reside. He, too, has just one sibling, a sister, who also lives in Ontario. [ 8 ] The mother has her grade 12 and she has worked in various jobs since graduating, primarily in administrative roles in the plumbing and heating, car sales, and auto repair industries. Most recently, she has been operating a daycare in her home. The father is an automotive mechanic.

The parties met in Nanaimo in 2006 at the [omitted for publication] where they both worked. [ 9 ] They began living together in 2007. J. was born in Nanaimo [omitted for publication], when the mother took a one-year maternity leave and stayed home caring for J. The father then left his job at the [omitted for publication] to work at [omitted for publication] and then began to receive Employment Insurance benefits both while still in Nanaimo. [ 10 ] With neither parent working outside the home, the parties made a joint decision for the father to search for work away from Nanaimo.

He was offered a job at [omitted for publication] in Fernie and, after they researched and visited Fernie, they decided together that he would accept the job and they moved to Fernie in December 2010 just shy of J.'s first birthday. Shortly after they moved to Fernie, the mother found work outside the home at [omitted for publication] and the parties found daycare for J. while they were working. [ 11 ] Sometime later, the parties bought their first home at Hosmer about halfway between Fernie and Sparwood where the father continues to live now.

Sometime after they bought that home, the mother got a job at [omitted for publication] in Hosmer near the family home and, in 2012, the father got a new job at [omitted for publication] in Sparwood where he continues to work now. [ 12 ] At about the end of 2013, the mother obtained a new job as a service manager at the Canadian Tire store in Fernie and the parties found daycare for J. in a "day home" in Fernie. [ 13 ] On August 24, 2013, the parties married.

On August 15, 2014, the parties separated and, at about the same time, the mother left her job at [omitted for publication]. [ 14 ] In September 2014, the parties enrolled J. in kindergarten at the [omitted for publication] School which she has attended since. On April 23, 2015, an interim order was made by consent providing the father with parenting time for "greater than 40 percent of the time" on a three-week rotation, Friday to Monday in the first two weeks and Friday to Sunday in the third week and, during the summer months, on week-abouts with one set of two weeks-about.

On September 16, 2015, another interim order was made by consent with the father's parenting time from Fridays to Mondays, each Tuesday evening, and him paying $300-per-month child support. C. Positions of the Parties

[ 15 ] Counsel for both parents provided written submissions for which I thank them. 1. The Position of the Mother [ 16 ] The mother says that, since separation, the father has at times had parenting time slightly more than 40 percent of the time and, at other times, slightly less than 40 percent of the time.

However, for the purposes of s. 69 of the Family Law Act , which I will refer to hereafter as the FLA , the mother concedes that the parenting time has been "substantially equal" such that the onus is on the mother to establish that, pursuant to s. 69(5) of the FLA , the proposed relocation is made in good faith, that she has proposed reasonable and workable arrangements to preserve the relationship between J. and her father and other persons who have a significant role in J.'s life, and that the relocation is in J.'s best interests.

The mother submits that she has met that onus and that the relocation should be allowed. [ 17 ] In the alternative, the mother submits that the provisions in the Written Agreement pertaining to parenting time are not in J.'s best interests and ought to be replaced with an order providing the mother with primary parenting time and the father with generous parenting time to include every second weekend from Thursday evenings to Monday mornings and one evening per week. [ 18 ] The mother says that she is not required to establish a change in circumstances to vary the Written Agreement pursuant to s. 44(4) of the FLA and the variation she seeks ought to be made pursuant to s. 37(3) of the FLA with a view to J.'s best interests generally and the factors set out in s. 37(2) of the FLA . [ 19 ] The mother also submits that an "appropriate order for child support," that is to say, payable by the father to the mother, should be made, but takes no position with respect to the father's Guidelines income and corresponding child support Guidelines table amount. [ 20 ] Lastly, the mother says that even if her application to vary the Written Agreement is dismissed, the father's application to enforce that agreement should be dismissed as there has been no breach of the agreement. 2.

The Position of the Father [ 21 ] The father opposes the proposed relocation of J. submitting that it is not in her best interests. The father seeks to enforce the written agreement, though modified to include a specified parenting

schedule similar to the interim orders that have been made with him having parenting time covering every weekend other than during vacation time. He, too, seeks a final order with respect to child support and extraordinary expenses. [ 22 ] With respect to relocation and the factors in s. 69(5) of the FLA , the father says the proposed relocation is not made in good faith. The father says the mother's true motivation is simply to get away from him.

Further, regarding the proposed reasons of the mother for the relocation, the father says that the job she has been offered in Nanaimo has little to do with her training and is outside her field of employment, that is to say, her related or previous work history and experience.

In view of this, the father challenges the mother's assertion that the move is to obtain employment and improve her and J.'s financial circumstances. [ 23 ] With respect to the mother's proposal of arrangements for the father's parenting time if the move is allowed, the father notes that no proposal was made before her application was filed in court and that, given the parties' financial circumstances, with the cost for the father to exercise parenting time, no reasonable and workable proposal has been made. [ 24 ] Turning to J.'s best interests, again, the father says the proposed relocation is not in her best interests.

Addressing the relevant factors in s. 37 of the FLA , the father submits that the evidence establishes that J. is a healthy and happy child, but that to remove her from the Elk Valley and require travel, at least to some extent on her part, will be stressful for her and impact negatively on her health and emotional well-being.

The father says that, at J.'s young age, she is too young to understand the full ramifications of the proposed move, but to the extent that her wishes can be gleaned from the evidence, it is that she enjoys spending time with her father and the bond she has with her father would be undermined by this move. [ 25 ] The father says that J. enjoys a strong bond with both parents. He says that both he and the mother have been very involved in J.'s care and that the mother has tried to downplay his involvement. He says J.'s need for stability dictates against this move.

He says the cost of travel would impair his ability to exercise parenting time and that, if the mother were to move with J., that would not significantly reduce the necessity for them to cooperatively co-parent. He says that if the move is permitted, the mother will likely take over all parental responsibilities and cut the father out of J.'s activities.

The father says that if the mother moves with J. and takes the job offered to her, that would require more third party childcare. [ 26 ] With respect to child support, the father says the mother is intentionally underemployed and income should be imputed to her as that which she stated it was in the Written Agreement at $44,000 to $46,000. He says his income is $81,569.81 and he should pay net child support of $352 per month and that extraordinary expenses should be paid proportionate to those incomes, 65 percent by the father and 35 percent by the mother. D. The Issues [ 27 ] The issues, then, are as follows: 1.

Relocation. As the mother concedes, with the parents having substantially equal parenting time pursuant to s. 69(5) of the FLA , the onus is on her to establish: (

a) the proposed relocation is made in good faith; (

b) that she has proposed reasonable and workable arrangements to preserve the relationship between J. and her father and others with a significant role in her life; and (

c) that the relocation to Nanaimo is in J.'s best interests.

2. Parenting arrangements. If this relocation is approved, the parental arrangements will need to be varied. As the mothersubmitted, even if the relocation is not permitted, that parenting arrangements may be set aside or varied pursuant to s. 44(4) of the FLAif either parent establishes that the agreement is not in J.'s best interests. 3. Child support. Subject to what parenting time is appropriate, what is the appropriate order with respect to child support? 4. Special Expenses. At what ratio should the parents pay for special expenses for J.? E. Analysis 1. Relocation A.

Is the Proposed Relocation Made in Good Faith? [28] Section 69(6) of the FLA provides that all relevant factors must be considered including: (

i) the reasons for the proposed relocation; (ii) whether the move will enhance the general quality of the life of the child and the mother including increasing emotionalwellbeing or financial or educational opportunities; (iii) whether notice was given under s. 66; and (iv) any restrictions on relocation contained in the written agreement. [29] The mother says the reason for the proposed move is that, "She has not been able to work in Fernie" and, "She has been offereda very attractive position in the Nanaimo area." I find, however, that the mother has had several jobs in the Elk Valley which she has leftdue to difficulty juggling parenting demands and interpersonal issues. [30] The employment offered to her in Nanaimo by the mother's partner appears to have been created to support her move withuncertain security given the relatively new relationship between her mother and her mother's partner and the mother's history offrequently changing jobs.

It is not established that the mother's medium to long-term employment prospects are better in Nanaimo thanthey are in the Elk Valley. [31] Furthermore, when the Written Agreement was signed, the parties were aware that employment was an issue for the mother. As the mother concedes, J.'s life in the Elk Valley "is obviously a good one complete with a balance of focus on her education as well asextracurricular activities." Clearly, J. has established friends at school, at church, and in the broader community in Fernie, specifically,and the Elk Valley, generally.

While the quality of life of the mother may be improved moving to Nanaimo closer to her family andfriends, I do not find that J.'s life would be similarly improved. [32] Although the mother did not give written notice to the father of her proposed move under s. 66 of the FLA, other than theservice upon him of her application in this proceeding, it is apparent that he anticipated such a request or application in any event.

Thisapplication cannot be said to have come as a surprise to him and I do not place much weight on this factor. [33] The Separation Agreement, Exhibit 1, paragraph 12, provides that neither parent is to remove J. from the Elk Valley without theconsent of the other parent or a court order. It is apparent that the mother was contemplating this proposed move when she signed thatagreement with the benefit of the advice of counsel.

While I agree that it speaks well of her that she has not unilaterally removed J. inthe face of that agreement, that does not establish good faith. [34] Considering all of the evidence and the factors I have just reviewed, I find that the mother has failed to establish that theproposed move is made in good faith. B. Reasonable and Workable Arrangements to Preserve the Relationship [35] J. is too young to yet fly as an unaccompanied minor. The distance and time required to drive between Fernie and Nanaimoincluding a ferry ride each way is extensive. The cost of either manner of transportation is significant.

In all of the circumstances, themother's proposal for the father to travel on long weekends and during vacation time and for J. to travel during some of that time, initiallyat least, with one of her parents is not reasonable or workable. [36] Having found that the mother has failed to establish that the proposed move is made in good faith and that she has not proposedreasonable and workable arrangements to preserve J.'s relationship with her father if the move does occur, I agree with counsel for themother that that is not the end of the mobility issue. Section 69(4)(

a) of the Family Law Act does not establish a threshold test thatprecludes or even permits the court to refrain from going on to consider J.'s best interests in respect to the proposed move. There must bea full and sensitive inquiry into J.'s best interests in this regard; see C.M.B. v. B.D.G., 2014 BCSC 780, Madam Justice Fleming. [37] There is some evidence that the friction between these parents, particularly if J. finds herself together with them at the sametime, causes her anxiety.

On the other hand, the evidence suggests and I find that she is physically healthy and generally well-adjusted,doing well in school and her extracurricular activities. I find that J. enjoys a close loving relationship with both her parents and it isevident that she enjoys spending as much time as possible with each of them. [38] In addition to the bond J. enjoys with her parents, she enjoys many friendships in school, at her church, and in her community inthe Elk Valley.

She also enjoys a close loving relationship with both sets of her grandparents. [39] The mother had the primary care of J. up until J. began school. Nevertheless, the father assisted with that care after the mother'smaternity leave and when she returned to work outside the home. The parents have shared that care relatively equally since J. began

school, that is, since September 2014, for the past 19 months. The mother concedes that, as a general rule, the younger the child, the greater the need for stability. I find that the proposed move will create some destabilizing effect for J. [ 40 ] With respect to the ability of each parent to exercise his or her responsibilities, I agree with the mother that the father's apparent willingness, even eagerness, to challenge the character and conduct of the mother and his inability to take any responsibility for the friction and poor communication between them is concerning.

This friction impacts negatively on the parents' ability to cooperate. However, I do not find that this and the anxiety that J. experiences at the times when she is together with both parents is to such an extent that removing J. to Nanaimo is in her best interests. Indeed, considering all of the factors with respect to J.'s best interests, I find that such a relocation is contrary to her best interests. 2. Parenting Arrangements [ 41 ] Parental arrangements are determined with respect to J.'s best interests and the factors in s. 37 of the Family Law Act which I have just reviewed in respect of relocation. A.

Parenting Time [ 42 ] Clause 11 of the Written Agreement provides as follows: The Child's residence will be divided equally between the parties on a shared parenting

schedule to be arranged between the parties, with each party exercising parenting time with the Child for not less than 40 per cent of the time over the course of each calendar month, unless the parties agree otherwise.

To that end, the Child spends approximately equal time at David's residence in Sparwood and Jennifer's residence in Fernie. [ 43 ] On September 16, 2015, the date of the last interim order which was made by consent, it was agreed and ordered that the father's parenting time is Fridays to Mondays and each Tuesday evening. [ 44 ] The mother says that the friction between the parents is adversely affecting J. and, considering that the mother now operates a daycare in her own home and is available to care for J. after school, it is J.'s best interests that she reside primarily with her mother staying with her during the school week and alternate weekends with her father on opposite weekends, plus one weekday evening per week, and presumably sharing vacation time.

The mother notes that in the current arrangement, J. has no real leisure time with her mother, that is to say, on weekends. [ 45 ] The father proposes a parenting

schedule that is similar to the more extensive time with him as in the interim order of September 16, 2015, the detail of which is found in a document he filed as Exhibit 10. [ 46 ] I find that the initial intention of the parties was to share parenting time relatively equally and that is what they have done. It took J. sometime to adapt to her parents' separation, but by and large, she did well in a relatively equally shared parenting arrangement. Although it suited the mother at the time of the written agreement and the interim orders for J. to spend all of the weekends with her father, the mother's circumstances have changed with a different work

schedule for her new partner and the establishment of her home business. [ 47 ] I agree with the mother and find that it is in J.'s best interests to spend time with both parents during weekends or leisure time and that, as long as the mother is available, for the mother to provide any afterschool daycare. [ 48 ] The parents will therefore share parenting time equally on a week-about basis with the exchanges being Sundays at 7:00 p.m. [ 49 ] When J. is with her father, the mother shall provide the afterschool care for J. as long as the mother is able to do so. [ 50 ] Each parent shall have reasonable telephone and/or electronic contact with J. when she is in the care of the other parent.

B. Parental Responsibilities [ 51 ] The parties share parental responsibilities equally pursuant to clauses 4 to 10 of the Written Agreement. Notwithstanding the friction between the parents, primarily affecting J. only when the parents are together with her, I am not persuaded that this arrangement is contrary to her best interests and I will not vary it. 3.

Child Support [ 52 ] The Written Agreement provides that the father's income from [omitted for publication] varies between $90,000 and $95,000 and the mother's income as a [omitted for publication] at [omitted for publication] varied between $44,000 to $46,000 and that child support is "offset" so long as the father pays J.'s private school tuition, fees, and uniforms of approximately $3,500 per year.

The interim order made by consent September 16, 2015, requires the father to pay $300-per-month child support. [ 53 ] The father's financial statement sworn March 23, 2015, provides that his annual income is $91,198.45 which corresponds to his 2014 income tax return attached. His 2013 T4 showed income of $97,168.73 in part from an earlier employer and in part from his current employer, [omitted for publication]. However, his T4 for 2015 shows his total income at $81,569.81 and he gave evidence that, due to reduced hours, he expects to continue and I accept will remain at that amount.

Therefore, I find his income to be $81,570. [ 54 ] The mother's financial statement sworn March 13, 2015, reports her total income as zero, but that she receives a child tax benefit of $1,200 and the B.C. Family Bonus of $1,680 per year. In her evidence, the mother testified, and I accept, that she has recently begun to babysit two children in her home from which she earns approximately $800 per month. She has not taken jobs available at minimum wage as she believes the benefit of that would be exhausted by childcare costs she would then incur.

When she consented to the interim order, the father paid $300-per-month child support. She agreed to her income being imputed at $20,000. On the evidence, I impute

income to the mother in that amount, $20,000. [ 55 ] At $81,570, the table amount for child support for one child is $764. At $20,000, it is $174. In the result, the father will pay net child support to the mother based on the Guidelines table amount at $590 per month commencing May 1, 2016, and continuing on the 1st of each month thereafter. [ 56 ] I recognize that with this amount of child support J. may not be able to continue in private school. That is simply the financial reality for this family now residing in two households.

I do expect, however, that even if she does not continue in the [omitted for publication], she will be able to, more or less, maintain contact with the friends she has made there. 4. Special Expenses [ 57 ] Clauses 20 and 21 of the written agreement cover special expenses requiring each party to pay 50 percent of agreed-upon expenses. While the father then earned approximately twice what the mother earned, he now earns approximately four times of her imputed income.

In view of that change of circumstances, I will vary the proportion of the parents' contribution to 80 percent for the father and 20 percent for the mother. F. Conclusion and Order [ 58 ] I am not ordering that the father retain J.'s passport. I view that as an overreaching attempt by the father to exercise control over the mother.

While I will not order it, if possession of the passport is truly an issue, I suggest the parents take turns holding it from one year to another. [ 59 ] Similarly, I will not order that the father have J. for 24 straight days within the next 24 months, though the Family Law Act contemplates he should have compensatory time for the vacation the mother recently took with the child. That is a matter for the parents to work out on a specific basis as plans evolve. This is a responsibility of the parents to resolve.

If the parents cannot do so after meaningful discussions, the father may make a further application. [ 60 ] In

summary, I make a final order as follows: 1. The mother's application to relocate the child, J., is denied. 2. Clause 11 of the Written Agreement dated September 30, 2014, filed December 13, 2014, is varied to provide that the parents will share parenting time equally on a week-about basis with the exchanges being on Sundays at 7:00 p.m. 3. During the father's parenting time, as long as the mother is available to do so, the mother will provide afterschool care for J. 4. Each parent shall have reasonable telephone and/or electronic contact with J. when she is in the other parent's care. 5.

The father shall have J. from December 24, 2016, at 8:00 p.m., until December 25, 2016, at 8:00 p.m., and the mother shall have J. for that same time period in 2017, alternating between them in the years thereafter. 6. The parents will have such other parenting time as they may agree to between them from time to time. 7. The father's annual income is found to be $81,570. 8. The mother's annual income is imputed at $20,000. 9. The father is to pay the net child support Guidelines table amount of child support of $590 per month commencing May 1, 2016, and continuing on the 1st of each month thereafter. 10.

Clause 20 of the Written Agreement dated September 30, 2014, is varied to the extent of the proportion of special expenses to be paid. The father is to pay 80 percent and the mother is to pay 20 percent. [ 61 ] That concludes my reasons. (REASONS CONCLUDED)