A.V. v. M.D. Date:, 2014 BCPC 252

Citation: A.V. v. M.D. Date: 20141016 2014 BCPC 0252 File No: F65992 Registry: Nanaimo Registry IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A.V. APPLICANT AND: M.D. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE

Counsel for the Applicant: R. D. Oliphant Appearing in person: Ms. D. Place of Hearing: Nanaimo , B.C. Dates of Hearing: September 29, October 10, 2014 Date of Judgment: October 16, 2014 Background [ 1 ] Mr. V and Ms. D are the parents of one child, their daughter, A, who is now 3 years of age. A has lived in Nanaimo, and resided mostly with Ms. D, since birth. Ms. D wishes to relocate to Kitimat to pursue career opportunities. Mr. V, who lives in Nanaimo, opposes the move. [ 2 ] On August 22, 2013, I ordered that A’s primary residence be with Ms. D and set out in my order a detailed

schedule of parenting time for Mr. V through to the end of December, 2014. The parties have generally adhered to that schedule, with the result that A has lived about 80% of the time with Ms. D. [ 3 ] Ms. D and Mr. V are both journeyman electricians. [ 4 ] Job opportunities for electricians on Vancouver Island are few and poorly paid. There are many well-paid opportunities for electricians in Kitimat and other northern communities. That point is illustrated by Mr. V’s recent experience. Since the summer of 2011, Mr.

V has been working “in camp” in remote locations in northern British Columbia and Alberta, on a rotation of several weeks in camp and a week or so out. Throughout that time, he has been looking for a job on Vancouver Island, where he grew up and prefers to live. In September, 2014, after a 3-year job search, he succeeded in obtaining employment with M. Electrical, a contractor in Nanaimo. He says that he got that job only by “calling in a favour” from Mr. M., who is a family friend. Mr. M. pays him $28 per hour. Mr. V concedes that Ms.

D is less well-connected on Vancouver Island than he is, and faces correspondingly greater challenges in finding employment on the island. [ 5 ] Job opportunities for electricians in Kitimat and other northern communities are plentiful and well-paid. For example, Ms. D’s present job in Kitimat, which she started in July, 2014, pays her $39 per hour for regular time, but also pays her a “living out allowance” because she lives in a house in town rather than in camp, and offers many opportunities for overtime and weekend work, which is paid at a much higher rate. Ms.

D’s employer has told her that she will have an opportunity for promotion to a managerial role if she remains in Kitimat, but that the employer will arrange a transfer to a job (but not a managerial job) in the Greater Vancouver area if she remains on the job in Kitimat for one year. Mr. V concedes that he could have a similar job tomorrow in Kitimat if he wanted one. [ 6 ] I heard some evidence about job opportunities for electricians in the Greater Vancouver area. Such jobs are available, although they are more difficult to get and pay less than jobs in Kitimat and other northern communities.

The cost of housing is much higher in the Greater Vancouver area than on Vancouver Island, and much higher on Vancouver Island than in Kitimat. Legal Principles [ 7 ] The governing statutory provision is section 69(4) of the Family Law Act SBC 2011, c 25:

(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. [ 8 ] In C.M.B. vs B.D.G. 2014 BCSC 780 , [2014] BCJ #87, 45 RFL (7 th ) 313, Fleming, J said @ paragraphs 64, 78. … s. 69(4)(a)(

i) and (ii) should not be interpreted as setting out threshold tests that prevent the court from considering the children's best interests, if they are not established.

That is, under both s. 69(4) and (5), even if the court finds the application for the proposed move was not made in good faith and or reasonable and workable arrangements were not proposed, it must still consider whether the move is in the best interests of the child. * * * To summarize, I have concluded that the correct approach under s. 69(4) and (5) is for the court to consider whether the proposed relocation is made in good faith and whether reasonable and workable arrangements have been proposed. If one or both of these criteria

are not met, the court must still go on to consider whether the proposed relocation is in the child's best interests. Satisfaction of good faith and reasonable workable arrangements is necessary in order for a relocating guardian to benefit from the presumption under s. 69(4) (

b) that the move is in the best interests of the child. So, I must first consider whether Ms. D’s relocation proposal is made in good faith and whether she has proposed reasonable and workable arrangements to foster Mr. V’s relationship with A. If, and only if, both of those questions are answered in the affirmative, Mr. V carries the onus of showing that the proposed relocation is not in A’s best interest. If either of those questions are answered in the negative, I must consider A’s best interest without any presumption one way or the other.

Good Faith [ 9 ] Section 69(6) of the Family Law Act provides: 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 …; (

d) any restrictions on relocation contained in a written agreement or an order. [ 10 ] In L.J.R. vs S.W.R. 2013 BCSC 1344 , [2013] BCJ #1645, 43 RFL (7 th ) 351, Betton, J said @ paragraph 71: Good faith is a subjectively held state of mind. Yet, some of the above characteristics are undoubtedly objective. I find that to the extent a factor listed in s. 69(6) is objective, a positive or negative finding suggests an inference that the relocating guardian either possessed or did not possess the required subjective good faith.

I take this to mean that I am to answer two questions in relation to each of the four factors set out in section 69(6), and in relation to any other relevant factors: a. Does Ms. D honestly believe that a fair consideration of that factor in this case supports the inference that the proposed relocation is in A’s best interest? b. If so, is her belief objectively reasonable? [ 11 ] The reason given by Ms. D for the proposed relocation is that she has been offered a very attractive career opportunity in Kitimat, and she has few or no career opportunities on Vancouver Island.

She believes that she will be unable to provide the material things which A will need unless she is permitted to relocate to Kitimat. I am satisfied, both that Ms. D honestly believes that to be true, and that she is probably correct. Ms. D is unlikely to find employment as an electrician on Vancouver Island. Her income-earning capacity on Vancouver Island is probably less than $2000 per month [ 12 ] Mr. V will earn about $55,000 per year in his present job. The guideline figure for child support with that income is $507 per month. If she stays on Vancouver Island, Ms.

D will face the challenge of raising a child on a monthly income of about $2500, in a community in which a suitable house will cost more than $250,000. By contrast, Ms. D’s present job in Kitimat pays her in excess of $70,000. Housing prices in Kitimat are much lower than those on Vancouver Island. [ 13 ] Some aspects of A’s quality of life will suffer if she moves to Kitimat. a. Her paternal and maternal grandmothers have provided much of the day-to-day childcare for A during her first 3 years of life. I have no doubt that she has strong attachments to them which are important to her.

Both grandmothers live in Nanaimo, and neither will relocate to Kitimat. It is a full day’s journey by air from Nanaimo to Kitimat, and costs about $700 round-trip. As a result, it cannot be expected that the grandparents will be frequent visitors. Mr. V expects that the grandmothers will continue to perform much of the day- to-day childcare if A remains in Nanaimo. b. If A moves to Kitimat and Mr. V remains in Nanaimo, they will see each other much less frequently. Over the past 2 years, Mr. V has had parenting time with A every second weekend for 48 hours on a reasonably consistent basis.

I have no doubt that that time has been important to A, and that she would miss it if she moved to Kitimat and Mr. V did not. [ 14 ] There is no reason to think that A’s educational opportunities will be better in one city than the other. No doubt, both have adequate schools. Ms. D says that there is an excellent day-care facility a short distance from her home in Kitimat. Mr. V replies that, given Ms. D’s work

schedule in Kitimat, A will be in day care for about 50 hours per week, which he does not consider to be in her best interest. [ 15 ] In this case, proper notice was given under

section 66. [ 16 ] On July 9, 2012, His Honour Judge Gould granted an order restraining the parties from removing A from Vancouver Island without leave of the court or consent of the other spouse. On July 23, 2014, I varied that order to allow trips off Vancouver Island not exceeding 7 days’ duration. However, it does not appear that such a constraint is necessary. For example, neither parent is a flight risk. [ 17 ] I conclude that:

a. Ms. D honestly believes that the proposed relocation is in A’s best interest. b. A reasonable person could hold that belief in the circumstances pertaining. Accordingly, I conclude that the relocation is proposed in good faith. “Reasonable & Workable Arrangements” [ 18 ] Ms. D proposes that A should visit Mr. V: a. in Nanaimo as Ms. D’s work

schedule allows, which would be roughly one visit every two months, for a week or so per visit; b. at Ms. D’s home in Kitimat, whenever Mr. V chooses. She says that, if Mr. V chooses to visit in Kitimat, she will lend him her vehicle and vacate the house for the duration of his visit, leaving him alone with A. [ 19 ] Much depends on what is meant by “reasonable and workable” arrangements. From Mr. V’s point of view, Ms.

D’s proposal is entirely unreasonable and unworkable - it means that, if he wants to see his daughter more frequently than once every two months, he must incur the cost of travel to Kitimat (about $800) and stay either in a motel or in the home of a woman with whom he has a deeply hostile relationship. From Ms. D’s point of view, the arrangements which she has proposed are the best which can be offered in the circumstances in which she finds herself. One must accept that, if A moves to Kitimat and Mr. V does not, A will see Mr. V much less frequently. That is not necessarily unreasonable or unworkable.

I discuss below the possibility of a parenting time

schedule which, if A moves to Kitimat and Mr. V remains in Nanaimo, might serve A as well or better than the existing schedule. [ 20 ] I conclude that the arrangements proposed by Ms. D are not reasonable or workable, but that other arrangements could be made which would be reasonable and workable. [ 21 ] Because Ms. D has not proposed “reasonable and workable” arrangements, the presumption set out in section 69(4) of the Family Law Act does not apply, and I must consider A’s best interests without any presumption one way or the other.

A’s Best Interests [ 22 ] In order to determine whether the proposed relocation is in A’s best interest, one must balance a number of competing factors. As discussed below, much depends on whether Mr. V chooses to move to Kitimat if I allow the relocation. He was not asked that question, and I am in no position to assess the probability that he will make that choice. [ 23 ] Ms. D is now living in Kitimat. She says that, if I do not allow A to join her there, she will return to Nanaimo, resume her parenting responsibilities, and look for work on Vancouver Island.

The question is what, if any, consideration, I can give to that evidence in light of section 69(7) of the Family Law Act , which provides: … the court must not consider whether a guardian would still relocate if the child's relocation were not permitted. This provision has baffled better judicial minds than mine: M.M. vs C.J. 2014 BCSC 6 ; [2014] BCJ #8 @ paragraphs 42 – 48; C.M.B. vs B.D.G. @ paragraphs 98 – 110 .

Rather than attempt an exegesis of my own, I think that I should simply follow the guidance given by Jenkins, J in M.M. vs C.J. @ paragraphs 47 – 51 , and consider A’s best interests by reference only to the three options which the evidence shows to be realistic possibilities. They are: a. A moves to Kitimat with Ms. D; b. A remains in Nanaimo and Ms. D returns to live there; c. A and Ms. D move to the Greater Vancouver area, where Ms. D may find work. I should explain that I do not consider it a realistic possibility to order that Mr. V replace Ms. D as the custodial parent.

A’s contacts with Mr V have been largely confined to weekend visits at two-week intervals. From A’s perspective, home has been mom’s house, at least until July of this year. It would be too fundamental a change to her universe to alter that now. [ 24 ] If A moves to Kitimat, her visits with her grandparents will be infrequent. That will be very distressing for her, because they are now very significant attachment figures in her life. There is, however, a counterbalancing factor.

In 9 years’ time, A will be 12 years old, and entering that phase of her life when children face their most significant challenges and most need strong connections with their parents. At the risk of stating the obvious, A’s grandparents will then be 9 years older than they are now. Parenting of teenagers is no task for the faint of heart or for the advanced in years. When she is a teenager, A will need parents with whom she is closely bonded and who are young enough to bear up under the strains of parenting an adolescent. For that reason, Mr. V and Ms.

D need to start building now the relationship with A which they will need 9 years from now. It is in A’s best interest that the parents now take primary responsibility for A’s parenting, and that the grandparents resume the role of grandparents rather than surrogate parents. [ 25 ] If A moves to Kitimat and Mr. V remains in Nanaimo, A will spend up to 50 hours per week in day care. That is considerably more than one would hope for, and is a significant factor to consider. If both A and Mr. V move to Kitimat, it is likely that Mr. V and Ms. D could arrange their work schedules in such a way as to allow Mr.

V parenting time during a significant part of the time when A would otherwise be in day care. That would serve the twin objectives of reducing the day care time and fostering the relationship between Mr. V and A. [ 26 ] If A moves to Kitimat, Ms. D will continue with her present employment in that city. She says, and I accept, that it is an excellent career opportunity for her, and is likely to lead to promotion to a managerial position (to which she aspires).

[ 27 ] If A does not move to Kitimat, Ms. D will return to Nanaimo. In that event: a. It is highly unlikely that Ms. D will find engaging or remunerative employment. Ms. D is a “type A” personality. Unless she feels successful in her career, she will not be happy. Happy parents, who feel fulfilled in their professional lives, make better parents and better role models for children. It is axiomatic that children are affected by their parents’ emotional states. A depressed, frustrated parent is not an effective parent. b. A’s material standard of living will be very low.

Children of prosperous parents enjoy many advantages denied to children of lesser means. [ 28 ] The Greater Vancouver option offers Ms. D better employment prospects than does Vancouver Island, but lesser prospects than Kitimat. There are jobs for electricians in Greater Vancouver, but there is more competition for those jobs than in northern communities and they pay less well. Housing costs are significantly higher in Greater Vancouver than in Kitimat.

If A lives in Vancouver, it is to be expected that she would see her grandparents frequently, either in Greater Vancouver or in Nanaimo (which are about 2 hours apart by car and ferry). Mr. V could continue to live in Nanaimo and still have parenting time with A on his present schedule. [ 29 ] The problem with the Greater Vancouver option is that its success would be critically dependent upon the ability of Ms. D and Mr. V to cooperate. To put that in perspective, a typical weekend visit between A and her father would proceed as follows. Ms. D would pick up A from school or day care at 4:00 p.m.

Friday and drive to one of the Vancouver ferry terminals, arriving at 5:00 or 5:30. They would board a ferry and travel to one of the Nanaimo terminals, arriving at 6:30 or 7:00, where they would meet one of the grandparents. Ms. D would return to Vancouver by ferry, arriving home about 9:00 p.m. The grandparent would deliver A to Mr. V about 7:30 or 8:00 p.m. Mr. V would return A to a grandparent at 3:00 p.m. on Sunday. The grandparent and A would board a ferry at 3:30 or 4:00 p.m. and deliver A to Ms. D at a Vancouver ferry terminal at 5:00 or 5:30 p.m.

The grandparent would then return by ferry to Nanaimo, arriving home about 8:00 p.m. The intercession of the grandparents would be necessary because Ms. D and Mr. V are not on speaking terms. The grandparents have always acted as intermediaries at the inception and end of each visit between A and Mr. V because A ought not to be exposed to the manifest hostility between her parents. [ 30 ] I have heard a number of court applications in other cases arising from arrangements like those described above. They are fraught with many difficulties.

If any participant is late, or ill, or otherwise absent, the other participants have to flex to find a workable solution for that visit. The travel is very tiring for everyone, particularly for the children. As the children get older, they want to spend their weekends with their friends, not riding a ferry to visit a parent. As A’s grandparents age, their ability and willingness to carry the load will diminish. Such difficulties can be managed with good will and a spirit of cooperation. Those qualities are markedly absent from the relationship between Mr. V and Ms. D.

When I made the existing order in August, 2013, I hoped that the hostility between Mr. V and Ms. D would diminish with the passage of time and the assistance of a clearly-defined

schedule for Mr. V’s parenting time. That hope has been disappointed. They are as little able to cooperate now as they were a year ago. [ 31 ] It will be apparent that I am asked to choose among imperfect options. In my judgment: a. It would not be in A’s best interest to remain in Nanaimo. b. The best option would be for A and Mr. V both to move to Kitimat. If Mr. V were willing to do that, I would establish a parenting time

schedule which would maximize his parenting time with A to the extent consistent with his work obligations. In that scenario, Mr. V would have parenting time with A several times each week, in a relatively relaxed atmosphere, and would also have the opportunity to engage directly with A’s medical and educational service providers on a regular basis. I would also expect the parenting time

schedule to include provision for annual vacation time for A and Mr. V. c. If Mr. V is unwilling to move to Kitimat, the best option would be for A to join Ms. D in Kitimat and for me to establish a parenting time

schedule which would foster Mr. V’s relationship with A as much as possible in the circumstances. As I now see it, that parenting

schedule would include an extended summer visit, of a month or so, and 3 – 10 day visits in Nanaimo at Thanksgiving, Christmas and Easter/Spring Break. Such a parenting time

schedule might serve A better than the existing schedule, or a new

schedule which might be agreed or imposed if Mr. V moves to Kitimat. Ms. D and Mr. V do not get along. It is unlikely that they will do so in the future. In such circumstances, the transitions between households are very stressful for children. In some cases, it is preferable to mitigate those stresses by providing the non-custodial parent with less frequent, but longer, visits with the children. d. A move to Greater Vancouver would be the least favourable option for A. Disposition [ 32 ] Ms. D will be permitted to relocate A to Kitimat. The parties may

schedule a hearing on the issue of Mr. V’s parenting time if they are unable to agree on that issue. If such a hearing is scheduled, Ms. D may, if she chooses, participate via video link from the Terrace courthouse. If she wishes to do that, she should make arrangements with the Judicial Case Manager at least a week before the hearing date. October 16, 2014 ________________________ T. Gouge, PCJ