K.G.M. v. K.R. Date:, 2016 BCPC 394

Citation: K.G.M. v. K.R. Date: 20161019 2016 BCPC 394 File No: F32989 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Family Division IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: K.G.M. APPLICANT AND: K.R. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. WOLF Counsel for the Applicant: Stacey Silber

Counsel for the Respondent: Aaron Burns Place of Hearing: Surrey , B.C. Dates of Hearing: September 26, 27, 28, 2016 Date of Judgment: October 19, 2016 1. INTRODUCTION [ 1 ] This case involves two applications regarding KR 1 born [DOB]. He is currently 6 years old. I provided the oral Reasons and these are the written Reasons arising from a hearing that took place on September 26, 27 and 28, 2016. Evidence for all issues has been provided to the court by way of affidavit and cross-examinations on those affidavits. [ 2 ] One application is by KR 1 ’s father Mr. KR.

It is an application to change the terms of an order made by The Honourable Judge Raven on December 13, 2011. The application itself is dated December 9, 2015 and filed with the court on April 19, 2016. He wishes to create an order that provides for 50/50 parenting time with KR 1 ’s mother, Ms. KGM. For the sake of clarity, I will refer to this application as the “parenting time application.” [ 3 ] In a Reply filed May 18, 2016, Ms.

KGM disagrees with the suggested change because, as she notes in her reply, “There has been no change in the needs or circumstances of the child since the order of Judge Raven made December 13, 2011 which would warrant a change to the child’s primary residence.” She further points out in her Reply that, “The child is thriving under the existing parenting arrangements.” On this point, I believe the parties agree. KR 1 is a “healthy, happy child.” [ 4 ] Ms. KGM counterclaimed seeking an order for child support. I have been advised that the parties have since worked out an arrangement on this issue. [ 5 ] Ms.

KGM also seeks an order that the applicant’s name in this proceeding be amended to reflect her married surname of M. I grant this order and will refer to Ms. KGM as Ms. M for the remainder of these Reasons. [ 6 ] Lastly, Ms. M seeks an order pursuant to

section 69 of the Family Law Act “permitting the child’s residence to be moved to Nanaimo, BC.” If this application were to be granted, it would require the court to amend Judge Raven’s order, which stipulates that KR 1 not be moved outside of the Lower Mainland without the consent of both his mother and father. This consent has not been given. For the sake of clarity I will refer to this application as the “relocation application”. 2. PRELIMINARY ARGUMENTS - WHO GOES FIRST? [ 7 ] There was disagreement between counsel as to which application should theoretically be heard first.

While the practical reality is that evidence could be heard and applied to all issues of both the applications concurrently, I made a ruling that the “parenting time” application should be considered first. [ 8 ] I wish to point out that this ruling was strongly objected to by Ms. M’s counsel who very ably argued the issue. In her written closing submissions, also provided to me orally, her argument is laid out at paragraphs 14 to 20. [ 9 ] My

summary of the argument is simple. If the relocation application is heard first, then 69(4) is the guiding section. Further, if this is the guiding section, then once the applicant satisfies the court that the proposed relocation application is made in good faith, and Ms. M has proposed reasonable and workable arrangements to preserve the relationship between KR 1 and his father, then the proposed relocation must be considered to be in the best interests of the child.

The law is clear though, that once this conditional presumption has been met, if I can call it that, then the onus would be on KR 1 ’s father to satisfy the court otherwise. [ 10 ] Counsel on behalf of Mr. KR believes the parenting time application should be heard first. He argues that it is possible that the court would change the previous order of parenting time to a 50/50 split. He further argues that if this was done, then the guiding

section would be section 69(5). As such, it would follow that the onus then would be on KR 1 ’s mother to show “good faith” and “reasonable and workable arrangements” and that the relocation is in the best interests of the child. [ 11 ] This case is unusual as it appears that the proposed relocation application has been made in good faith. The timing is at first glance a bit suspect.

However, it is clear by the evidence of all parties and the submissions of counsel that it is only by coincidence of timing that a proposal of relocation to Nanaimo from the Lower Mainland now needs to be considered. [ 12 ] In the end, I acknowledge that there is a shifting of the evidentiary onus, depending which subsection of

section 69 the application proceeds on. By operation of the statute, on the one hand the child’s best interests would be presumed until rebutted. On the other hand it would need to be established by the relocating guardian. I find that both subsections capture the essential consideration of the court under any proceeding under

section 69. Specifically, I must at one point or the other consider the best interests of the child. [ 13 ] I have decided to hear the father’s parenting time application first. It was filed first in time. This does not appear to be the case where one party raced to the courthouse to file first. It appears that both parties knew of the two issues of parenting time and relocation.

In fact, it appears by the time the case was to be heard in court all parties agreed to have the evidence apply to both applications, avoiding a hearing of two separate applications at different times with largely the same evidence. [ 14 ] It does appear that they both have been trying to deal with the issue of parenting time for quite some time. Discussions were taking place well in advance of the actual court hearing. There appears to be openness to experimenting with small changes in the parenting time.

For example, while Judge Raven’s order clearly lays out a parenting time schedule, both parties have tried a week

on/week off

schedule over this past summer. I do not find this particular attempt at trying out a new

schedule strengthens or weakenseither party’s position. I do find that it is illustrative of their attempts to address parenting time concerns. [15] I consider Ms. M’s application for relocation to be made in good faith. I also find Mr. KR’s application to have 50/50 sharedparenting time to be one made in good faith. Mr. KR’s intention and desire to have increased parenting time has been clear. This desirewas communicated long before Ms. M’s wish to relocate to Nanaimo. [16] It may be the case, as is submitted by counsel for Ms. M that the argument of Mr.

KR “is an attempt to characterize a parentingschedule ‘in theory’, but one that has never occurred in reality.” (para. 20 of closing submissions). However, I believe it is really aquestion of procedural fairness that his application be heard first. 3. PARENTING TIME APPLICATION [17] I have been provided extensive written and oral submissions as well as extremely well researched cases on the issues. [18] As a starting point,

section 47 of the Family Law Act allows for a change of a parenting arrangement if satisfied that, since themaking of the order, there has been a change in the needs or circumstances of the child, including because of a change in thecircumstances of another person. A. Has there been a Material Change? [19] Both counsel agree with the general proposition that before I consider a change to the current parenting arrangement, I must findthat there was a material change in circumstances. [20] I believe Ms. Silber, counsel for Ms.

M, is correct in her submissions as to what some of the legal considerations are on“material change.” [21] In Williamson v. Williamson, a 2016 B.C. Court of Appeal case recently considered this provision in the context of an appeal bya father from an order of a Chambers judge changing the custody arrangements and granting custody to the mother. The mother arguedthat the Chambers court had erred in hearing the application without first finding that there was a material change in circumstances. [22] The Court of Appeal concluded that although the word “material” is not included in

section 47, the two-step test from Gordon v.Goertz applies, and a material change in circumstances is first required to be shown. At paragraphs 30-34, Madam Justice Stromberg-Stein said: [30] While this provision differs from s. 17(5) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and does not use the language of a“material change,” this Court has interpreted the equivalent provision in s. 20 of the Family Relations Act, R.S.B.C. 1996, C. 128, whichalso did not use “material change” language, as requiring a material change in circumstances.

This Court held that the two-step test fromthe Supreme Court of Canada’s decision in Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27 applies despite thedifferences in the statutory language between s. 17(5) of the Divorce Act and s. 20 of the FRA: Boychuck v. Singleton, 2008 BCCA 355 atpara. 14; M. v. M., 2012 BCCA 324 at paras. 27-29. [31] Although this Court has yet to consider s. 47 of the FLA, the Supreme Court has consistently interpreted this provision asrequiring a material change in circumstances: see for example, Gilmour v. Herrick, 2013 BCSC 1591 at para. 13; Bradley v.

Bradley,2015 BCSC 1587 at paras. 21-23; and, J.D.C. v. K.L.M.F.C., 2014 BCSC 2182 at paras. 261-262. Given the reasoning of this Court inBoychuck and M. v. M, and the similarities between s. 47 of the FLA and s. 20 of the FRA, I conclude that a material change incircumstances is required under s. 47 of the FLA. [32] The first step in the analysis set out in Gordon v. Goertz is to “determine whether there has been a material change incircumstances since the making of the prior order”: Boychuck at para. 14.

The Court in Gordon explained what is necessary to establisha material change in circumstances: [11] The requirement of a material change in the situation of the child means that an application to vary custody cannot serve as anindirect route of appeal from the original custody order. The Court cannot retry the case, substituting its discretion for that of theoriginal judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued... [12] What suffices to establish a material change in the circumstances of the child?

Change alone is not enough; the change musthave altered the child's needs or the ability of the parents to meet those needs in a fundamental way … The question is whether theprevious order might have been different had the circumstances now existing prevailed earlier… Moreover, the change should representa distinct departure from what the court could reasonably have anticipated in making the previous order. [33] At para. 13, the Court summarized what the applicant must establish before proceeding on the merits of the application: [13] It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a changein the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) whichmaterially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge whomade the initial order. [34] Absent a material change in the needs or circumstances of the child, the inquiry can go no further.

It is only after this thresholdis met that the judge on the new application can embark on a fresh inquiry into the best interests of the children.

[ 23 ] Ms. Silber argues, on behalf of KR 1 ’s mother, that there is no material change of circumstance since Judge Raven’s December 2011 order. Mr. Burns, on behalf of KR 1 ’s father, argues that there have been significant changes, which when considered in their totality are material changes. [ 24 ] At this stage, if I find there has not been a sufficient material change, I then would dismiss the application for parenting time and then move onto the relocation application. B. Current Order - December 13, 2011 [ 25 ] I have had the benefit of reading the written reasons of The Honourable Judge Raven.

They are thorough and, in my view, completely consider the circumstances of KR 1 and his parents at the time the order was made. Since it is Mr. KR’s application to change the parenting

schedule that was put in place, I consider it appropriate to review the circumstances he and KR 1 found themselves in when he was before Judge Raven. [ 26 ] At the time Mr. KR was engaged to a new partner. Ms. M was of the view that the relationship was recent and there was no guarantee that Mr. KR would have the continued support of his fiancée. There were concerns about Mr. KR’s family background, involvement with drugs, his work

schedule and arrears with respect to child support payments. With respect to the drugs, Ms. M said that Mr. KR used drugs, sold drugs, and had a father and brother who were also involved in the drug business. In short, she did not want her son around drugs or people that were involved with them. There was also a concern that his small one bedroom basement suite was not suitable for KR 1 . It was noted, if not emphasized, that the parties could not communicate well. As well, it was agreed that Mr.

KR was in significant arrears of his child support obligations. [ 27 ] Some of these concerns have already been considered within the order of Judge Raven. For example, while there was a concern that the basement suite was too small, prior to the completion of the previous hearing, Mr. KR had moved into a house. I do not believe that consideration of the fact that now that they have moved into a slightly bigger house, would now be appropriate. That is to say, that this in itself is a “material change” would be improper.

It is not new. [ 28 ] Likewise, while there may have been concerns over the usage of drugs at one time , and it is true that now Mr. KR is not a drug user, this is not a new consideration. The decision of Judge Raven makes it clear that she accepted his claim to being clean from drugs for quite some time prior to the hearing of the case. [ 29 ] On the other hand, Mr. KR is now fully caught up on his child support, not associating with drug users, and is in a committed marriage with the support of his partner.

Considering it is a legal obligation to pay child support arrears, I believe Judge Raven easily contemplated that possibility. Similarly, going from being engaged to married would have been easily foreseen. [ 30 ] Since the order of Judge Raven, Mr. KR has become a qualified foster parent and has had significant experience as a foster parent. It is argued by his counsel that his “fostering” is a significant circumstance that has changed and should be considered a material change. If Mr. KR was found by Judge Raven to have been an inexperienced parent, perhaps I would agree with the argument.

There is no mention in her reasons that she was concerned about Mr. KR’s performance as a parent. At the time both he and KR1’s mother were both equally inexperienced parents, as it was their first child. It is true that since that time Mr. KR has had extensive training on how to be a foster parent. As well, he has now gained first-hand experience as a father to KR 1 . But I do not believe his increase in experience in parenting is in itself a material change. [ 31 ] I accept that Mr. KR’s life has significantly changed for the better since he has stopped having anything to do with drugs or those that use drugs.

I do not think this significant lifestyle change in itself merits a hurdle over the “material change threshold.” In my view, Judge Raven was clear that she believed Mr. KR was continuing to be a better parent when she wrote at paragraph 13 of her reasons that: Overall Mr. [KR] presented as an individual who has made personal changes within the past year to improve his ability to care for [KR 1 ]. With the assistance of Ms.

Harris [his fiancée], I do not have concerns about [KR 1] spending more time at his father’s house. [ 32 ] I pause to note that it is not lost on me that Judge Raven’s order was made under the Family Relations Act , R.S.B.C. 1996,

chapter 128. The application in this case is being considered under the new Family Law Act legislation. On that difference, Judge Raven commented that she was “urged to consider the spirit of the new legislation in not making a custody order with respect to KR 1 , and instead ordering joint guardianship with a co-parenting arrangement.” At paragraph 14 she held that: Although intriguing, I have decided orders made at this time must be in accordance with existing legislation.

It is possible that once the new legislation takes effect, Mr. [KR] may persuade a court that it is in [KR 1 ’s] best interests to vary this order and make an order respecting a parenting arrangement pursuant to … the Family Law Act . [ 33 ] Counsel for Mr. KR relies on the decision of the Alberta Court of Appeal in MacDonald v. MacDonald for the proposition that remarriage and establishment of a new family unit including a new half-sibling, and the fact that a child is three years older, are all material changes in circumstance. [ 34 ] Ms.

Silber, KR 1 ’s mother’s counsel, submits that the case law in British Columbia states otherwise. [ 35 ] With respect, I believe the MacDonald case, while from the Alberta Court of Appeal provides some assistance to me in determining the issues of material change. Mr. Justice Thomas in that case concluded: that a shared parenting regime would be in the best interests of the child. He found that it would be positive for the child to have increased time with his father, step-mother and new half-sibling.

Such a regime would not be difficult to implement given that the parties lived in a small community and travel arrangements were not onerous. The child’s extra-curricular activities would not have to

change, and meaningful contact with other members of the family would not diminish. The chambers judge also relied on the parenting assessment which recommended a shared parenting regime. Ultimately, he concluded that the week on/week off arrangement would create certainty and stability for the child, noting that it resulted in an increase of parenting time… [ 36 ] In our case I do not have a parenting assessment. However, it is easy for me to see how it would be positive for KR 1 to see more of his step-mother and step-brother, as well as his father.

It certainly may have been in the realm of possibility that Judge Raven considered that the natural result of being engaged, might be to get married, as well as have children. One way or the other, I believe the development of relationships with all family members, including step-parents and step-siblings must always be considered in this modern age of blended families. [ 37 ] In fairness, I believe Ms. Silber would also agree on the importance of developing relationships with step-relatives. To be clear, I take her position to be that it is important, but not necessarily a material change.

She relies on, inter alia, H.D. and D.N.D., both BC Supreme Court cases. Her position would be that even if it was a material change it was certainly, not a change in circumstances that was unforeseen. [ 38 ] In H.D. v. L.M.D. , 2016 BCSC 1118 , the child was 4 years older than at the time of the Divorce Order, the claimant had remarried, and there was a “Views of the Child Report” in which the child says she wanted more time with her father. None of these were sufficient to constitute a material change. This submission is correct. However, I believe paragraph 30 of the decision makes it clear that Mr.

Justice Barrow does leave the consideration of half-siblings to the Judge when he writes: I do not take that case [referring to Rasaiah v. Rose , 2004 BCCA 250 ] as a matter of law that the addition of siblings into a family mix can never amount to a change sufficient to engage the court’s jurisdiction. [ 39 ] In D.N.D. v. W.S.C ., 2013 BCSC 336 , the father sought to vary an access order to provide him with equal parenting time. A consent order was made when the child was 9 months old, and he was now 3 years old.

Also, the father said that he now had 2½ years of experience parenting the child and that he now had a son, who was the child’s half-sibling. None of these changes met the definition of material change as explained in Gordon v. Goertz . The Court found that although the child’s needs had changed, perhaps in a fundamental way, that change was in the reasonable contemplation of the parties at the time the order was made (see paras. 29 and 30). In my view, developing a relationship with your step-brother is definitely a consideration, but only that.

It is really the best interests of KR 1 that I need to consider. [ 40 ] The MacDonald case considers these factors in the context of remaining in the same community under the new 50/50 split. Is the concept of relocation to Nanaimo in itself a material change? I believe that a possible relocation is just that, “a possibility,” and thus would not constitute the actual presence of a material change in circumstance. C. Conclusion Regarding Parenting Time Application [ 41 ] I do not find that a material change has taken place.

As such, I am not bound to continue any further. [ 42 ] I think it is important to understand that as the trial Judge, I cannot operate an analysis in a vacuum. I do not think it is as simple as creating a list of factors on one side that equate to a material change. Nor do I think I could create a list of factors that do not equate to a material change. Each case turns on its own unique circumstances.

We can reconcile or differentiate circumstances of the case law versus the case at bar, but there will be no single case that helps me decide KR 1 ’s best interests with any form of exactness and I do believe examining the best interests is still a useful cautionary approach to take. 4. THE RELOCATION APPLICATION [ 43 ] I believe section 69(4) is the guiding section. Even if I was in a position now to find in favour of a 50/50 split, the current ‘theoretical’ parenting regime would be secondary to the arrangement at the time of filing the relocation application. At that time, Ms.

M was the primary caregiver, as she had been since KR 1 ’s birth. [ 44 ] This

section directs the court to presume that the move in such a circumstance is in KR 1 ’s best interests. I do so. However, I question whether the proposed arrangements are workable or reasonable in the circumstances. [ 45 ] This case is highly unusual. KR 1 has two loving parents. Both are very complimentary of the other as to the quality of the other’s parenting. There was one point in the proceedings that KR 1 ’s mother was providing such positive evidence of Mr. KR’s parenting that Mr. KR was overcome with emotion. It is rare that I get to see two parents so devoted to their child.

They both have the best intentions and only want the best for their son. [ 46 ] When I consider all the circumstances that have changed from the time of Judge Raven’s decision to the present, I must conclude that some of KR 1 ’s surroundings have changed. He is in a new home. He has two new wonderful step-parents. His father lives closer to him than before. He has a half-brother who he gets along with very well. His father is a better father. His mother is a better mother.

He has established roots in the Lower Mainland in a healthy, supportive environment. [ 47 ] I accept the possibility of relocating will affect all aspects of KR 1 ’s life, such as he will be distanced from all those close relations that I mentioned earlier. As well, he will be removed from his school and potentially be finding himself travelling for many hours per month between Nanaimo and the Lower Mainland. A. Should the Relocation be Allowed?

[ 48 ] If relocation is allowed, then I must put my mind to the type of parenting regime that best suits the interests of KR 1 . If relocation is not allowed, then I must also put my mind to this same issue. [ 49 ] I believe issues of good faith, current schedules, proposed schedules, as well as all the section 37(2) factors under the Family Law Act need to be considered. i. The Starting Point - Good Faith [ 50 ] Ms. Silber, on behalf of KR 1 ’s mother, argues that the proposed relocation is made in good faith.

Specifically, at paragraph 23 of her closing argument, she summarizes her position as: At the conclusion of the evidence, Mr. [KR] conceded that Ms. [M’s] application to move to Nanaimo has been made in good faith. Given this concession, the Court can also accept that the proposed relocation is likely to enhance [KR 1 ’s] general quality of life as well as Ms. [M’s], including increasing [KR 1] and Ms. [M’s] emotional and financial well-being, pursuant to s. 69(6) of the FLA . [ 51 ] With respect, I disagree that the concession made by counsel for Mr. KR was meant to go that far.

I understood the concession of good faith to simply be that the application to relocate was not brought with an ill intention. For example, the suggested move to Nanaimo was not intended to injure the current relationship that KR 1 has with his father. ii. What are the Arrangements to Preserve the Child’s Relationships? [ 52 ] The current arrangements for KR 1 found by Judge Raven to be necessary are found at paragraph 16 of her Reasons.

There has been disagreement as to some of the details that have had to be mediated and occasionally dealt with by the court. [ 53 ] The applicant, upon a relocation application, would be required to show how the other parent’s relationship with the child can be preserved, not augmented or enhanced. [ 54 ] Put more plainly, a proposed

schedule does not require anything other than a reasonable and workable arrangement to maintain the parent-child relationship. [ 55 ] Ms. M’s proposal for Mr. KR’s parenting time, should the relocation be permitted is: a. every other weekend from Friday to Sunday, and if there is a Pro-D day that falls on either side of those weekends, KR 1 would be in Mr.

KR’s care on the Pro-D day as well; b. every Spring Break (both weeks); c. alternate weeks throughout each summer; d. one-half of Christmas break; e. seven additional vacation days to be used between September and June, excluding Christmas and summer break; and f. additional visits in Nanaimo at Mr. KR’s request. [ 56 ] Mr. Burns, on behalf of KR 1 ’s father, argues that these arrangements are not reasonable. Mr.

KR’s view on the proposed arrangements was clear when he testified that he believed: KR 1 might miss out on events, miss out with time with extended family, and ultimately it would lessen the possibility of developing or maintaining relationships with all his step-family. [ 57 ] Counsel for Ms. M summarizes her client’s position in her submission that: Ms. [KGM’s] proposal reconfigures but does not reduce the total amount of parenting time currently enjoyed by Mr. [KR].

While the frequency of [KR 1 ‘s] access to Mr. [KR] will be reduced, the overall quantity and quality of access will actually be improved under Ms. [KGM’s] proposal. Mr. [KR] will have more time as well as more non-school quality time with [KR 1] than under the order of Judge Raven. Mr. [KR] admitted this in his cross-examination. Attached as Tab 1 to these Submissions is a Chart which compares the annual hours of access under the Final Order to the number of access hours now being proposed by Ms. [M]. [ 58 ] Ms. M is willing to help achieve the suggested

schedule as is stated in her application, “ Ms. M is also prepared to be responsible for bringing KR 1 to the Lower Mainland and to pay for all of the costs of transportation to do so.” iii. KR 1 ‘s Health and Emotional Well Being [ 59 ] The parties agree that KR 1 is happy, well adjusted, and doing well. He is an intelligent and social kid who makes friends easily and likes to be active. Ms. Silber submits that there “is no reason to believe that he will not adapt easily to a move to Nanaimo.” I agree with this submission. [ 60 ] I do have some concerns on the constant travel to and from Nanaimo.

On this issue, I once more agree with the proposition that “the distance between the Lower Mainland and Nanaimo is not onerous when compared to other mobility cases.”

[ 61 ] I also agree with the proposition as noted by the Court in T.C. v. S.C. , at paragraph 89 that: It is unrealistic to expect that parents will stay in the same community in which their parenting started for the whole of a child’s life. To expect so would be to forever bind a parent to the same neighborhood and to the existing status quo. [ 62 ] However, it is clear to me that Judge Raven did not want KR 1 moved out of the Lower Mainland unless both mother and father agreed to the move.

Since they are not able to agree, I believe it to be the duty of the court to consider the current residence locations and the proposed new residence locations.

It is also important to be mindful that while Nanaimo might be closer than Ontario or Australia, there are still practical travel concerns that have to be considered. [ 63 ] With respect to travelling to and from Nanaimo, I am told KR 1 enjoys travelling by ferry and that his mother would be able to ease the issues around constant coming to and from on alternating weekends. [ 64 ] It appears that all residences, current and proposed are equally capable of providing a supportive safe home for KR 1 . iv.

Relationships between KR 1 and other Significant Persons/History of Care/Need for Stability/Ability of Parents to Exercise Responsibilities [ 65 ] KR 1 ’s mother makes two important submissions found at paragraph 35 of her counsel’s submissions with respect to KR 1 ’s health and emotional well-being . I certainly believe that her submission is to be considered under that heading. But I would take it a step further. Her submission is that: [KR1’s] health and emotional well-being is inextricably tied with the well-being of Ms. [M].

If she is living with her husband in Nanaimo rather than living in Surrey, her emotional health will be secured and her happiness and well-being will translate into a positive environment for [KR 1] . Ms. [M] does not plan to work while residing in Nanaimo, affording her the ability to be available for [KR 1] both before and after school. This will have a direct and positive benefit on [KR 1 ’s] well-being. [ 66 ] I strongly believe that as the primary caregiver, Ms. M has become closely bonded with her son.

I disagree that when KR 1 said he wanted to go home in the summer time that this is a reflection of any less of a bond with his father or his step-mother. It is natural for children to occasionally want to be with one parent or the other. Children have moods and preferences that can be driven by any number of factors. [ 67 ] I wish to make it clear. I believe that a child’s bond can be equally strong between two parents. Equally, sometimes the child might be more bonded with one or the other. [ 68 ] I think it is important to understand that it is my view that Mr. KR is an excellent father.

I cannot imagine a father doing more than he has done. He has dedicated his time, work schedule, and all of his energies to trying to be the best father he can to KR 1 . He is described as being a very active father. As I understand the evidence, he even physically moved his residence closer to KR 1 and his mother in hopes to increase the quality and quantity of his time with his son. [ 69 ] Whatever the case, there is a factual reality that I have to consider. Ms. M was the primary caregiver of KR 1 since his birth. His primary residence has been with her. She is a capable mother. Mr. KR is a capable father.

The law on this point seems clear to me that I must give Ms. M’s decision to move great respect. [ 70 ] I am sure that even Mr. KR can see that having a full time mother able to dedicate a large portion of her time to the care and well-being of KR 1 has some great advantages. Ms. M will be “more available” to meet KR 1 ’s needs. B. Conclusion Regarding Relocation Issue - the New Parenting Regime [ 71 ] I believe that in balancing the factors it is clear that Ms. M should be allowed to move KR 1 to Nanaimo with her.

Such a move will essentially be a continuation of the primary care duties that KR 1 has had the benefit of from birth. [ 72 ] As time goes on, KR 1 may reach an age that he is able to travel independently between Nanaimo and the Lower Mainland.

As time goes on, once the bond between KR 1 and his mother has been able to fully flourish, there may come a time that KR 1 ’s age and circumstances will need to be re-examined. [ 73 ] In order to avoid confusion, it is my view that a material change of circumstances might include the ability of KR 1 to travel safely and confidently from Nanaimo to and from the Lower Mainland without a parental escort. [ 74 ] In the meantime, I believe that ordering that he attend every other weekend from Friday to Sunday would be very disruptive. Nanaimo is close. But it is not that close.

Leaving Nanaimo late on Friday only to arrive at his father’s residence in time for bed can be a bit onerous for anyone, let alone a small child. This sort of

schedule allows for all day Saturday and a part of Sunday with his father, step-mother and step-brother. I do not think that it necessarily creates an environment of quality time. For example, two days every two

weeks KR 1 will be able to wake up, play with his brother, and have any sense of “routine” with his paternal family. I know this sort of arrangement is common with some families. However, I do not think it is, in this case, the best solution. As well, I think it is an obvious point that the idea of a 50/50 week on week off split is not at all reasonable or workable.

In other people’s circumstances, perhaps where home schooling is an option, this sort of arrangement might be in the best interests of the child. [ 75 ] It is my view that a parenting scheme has to be considered from a 360 degree perspective from KR 1 ’s eyes to all his surroundings.

Captured in that view must be a consideration on how to maximize his current development both emotionally and physically through maintaining his bond to his mother, the primary caregiver and his father. [ 76 ] As well, as I have mentioned, I am of the view continuing to maintain, and develop as times goes on, the relations with his step- mother and step-siblings is essential. [ 77 ] In

summary, this court orders that Ms. M be allowed to relocate KR 1 to Nanaimo. [ 78 ] I find the suggested parenting time is flawed, not workable or reasonable and unduly harsh on KR 1 . A new parenting time regime is also ordered. With respect to this parenting time schedule, I cannot emphasize enough that it is open to the parties to change the parenting time by consent.

They have the ability, as they always have had, to take into account the work schedules, holiday schedules and sporting event schedules and other day to day activities that might conflict with this schedule. [ 79 ] For example, I am not ordering alternate weekends. I believe to order this could interfere with the healthy development of KR 1 . He might be limited in his ability to choose certain activities or he may just not want to travel every second weekend. But it is open to the parents to have alternating weekends if they want to.

To be clear, KR 1 may really want to come over on a weekend for some reason, and I would hope the parents would accommodate his request if they believed it to be in his best interest. Further, it might be the case that a pro-d day falls on a weekend where KR 1 might not be visiting with his father. I would hope that Ms. M will be open to facilitating a visit with his father on these of long weekends. Equally, Ms. M may wish for Mr. KR to pay for these additional visits, or travel in a manner that accommodates her or KR 1 ’s

schedule on these occasions. They both need to be able to communicate better with the other regarding these details. [ 80 ] The new

schedule to be followed is: a. Mr. KR is to have parenting time every third weekend from Friday 7:00 p.m. to Sunday 4:00 p.m., commencing October 21, 2016, and if there is a Professional Development day that falls on either side of those weekends, KR 1 would be in Mr. KR’s care on the Professional Development day; this weekend arrangement does not apply to the months of July and August. b. Mr. KR will have KR 1 every Spring Break for one week. c. Mr. KR will have KR 1 for six weeks in the summer. The periods of time will be at least one week per visit but no longer than two weeks consecutive.

The parties may agree to the schedule. If no agreement in writing can be made by June 21 st each year, then KR 1 will be with Mr. KR for the first two weeks of July and the last week of July; as well as the first week of August and the last two weeks of August. The week will be from Sunday at 5:00 p.m. to Sunday at 5:00 p.m. d. Mr. KR will have one-half Christmas break. e. Mr. KR will have seven additional vacation days to be used between September and June, excluding Christmas and spring and summer breaks. f. Ms.

M will be responsible for all arrangements and costs associated with the transition of KR 1 to and from Nanaimo, except for the “special additional weekends” noted below. g. Additional visits in Nanaimo at Mr. KR’s request, upon having given 24 hours to Ms. M that he will be coming to Nanaimo. h. “Special additional long weekends,” generated by a pro-d day or statutory holiday, that do not fall on Mr. KR’s schedule, only if agreed by both parties . The expectation is that Mr. KR on these “special additional weekends” would accommodate Ms.

M’s requests as to transporting KR 1 to and from, as well as the costs associated with the visits. i Mr. KR is to have Father’s Day. j. Ms. M is to have Mother’s Day. [ 81 ] This

schedule can be changed by each party giving consent to the change. Such consent is to be provided in written form to the other. Written form can include email, text or other written form. The Honourable Judge A. Wolf Provincial Court of British Columbia