B.D.G. v. C.M.B. Date:, 2016 BCPC 97

Citation: B.D.G. v. C.M.B. Date: 20160223 2016 BCPC 0097 File No: F66763 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: B.D.G. APPLICANT AND: C.M.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE LAMPERSON Counsel for the Applicant: J. Recalma

Counsel for the Respondent: J. Broadhurst Place of Hearing: Nanaimo , B.C. Dates of Hearing: April 8, 9, 10, 14, 15, May 13, 21, 22, 26, 28, June 23, Aug. 21, 25, 27, December 1, 2, 2015 and Jan. 28, 29, 2016 Date of Judgment: February 23, 2016 Introduction [ 1 ] This is a relocation case. C.M.B., the mother of two young children, seeks an order allowing her to move the children from Nanaimo, British Columbia to Edmonton, Alberta. The children are A.Q.G. born [omitted for publication] and S.G. born [omitted for publication]. Their father, B.D.G., opposes her application.

In addition to deciding whether or not to allow the relocation sought I must address the matters of parental responsibilities and parenting arrangements. [ 2 ] A first trial was held in this matter in the spring of 2013. In June 2013, the trial judge decided that C.M.B. was not permitted to relocate A.Q.G. and S.G. to Edmonton and imposed a parenting

schedule which provides that they are to spend alternating three day periods with each parent. C.M.B. appealed the trial judge’s decision. The appeal was heard by Madam Justice Fleming. Her Ladyship’s decision was rendered on May 6, 2014 and is cited as 2014 BCSC 780 . She allowed the appeal and ordered a new trial. Although the trial judge’s decision was overturned, the parties have continued to jointly parent A.Q.G. and S.G. on a three-day rotation as ordered by the first trial judge. [ 3 ] A second trial was held before me over a number of days in 2015 and 2016.

Background Facts [ 4 ] I will set out some of the background facts based upon an Agreed Statement of Facts filed by the parties. [ 5 ] B.D.G. and C.M.B. first met in 2004 while living in Edmonton where C.M.B. had grown up. They had a sexual relationship. In 2005, C.M.B. moved to Montréal. She later returned to Edmonton. In the spring of 2007, she and B.D.G. commenced an intimate relationship. [ 6 ] At that time, B.D.G. was involved in a polyamorous relationship with two other women, C.A. and T.S.. He and C.A. had been in a relationship since they were in high school. T.S. joined B.D.G. and C.A. in 2001.

The three of them lived together in a polyamorous relationship from 2001 to April 2007. B.D.G. has a son with C.A., G.G., born in 2001 and a son with T.S., P.G., born in 2003 (the “boys”). [ 7 ] In the spring of 2007, neither C.A. nor T.S. was aware of the nature of C.M.B.’s involvement with B.D.G.. In April 2007 when they learned of the relationship, C.A. and T.S. moved out of the residence they shared with B.D.G.. [ 8 ] In the spring of 2007, C.M.B. was not aware of the polyamorous relationship B.D.G. had with C.A. and T.S..

There is a disagreement as to how long C.M.B. was unaware of this polyamorous relationship. [ 9 ] C.A. resumed sexual relations with B.D.G. in April 2007. It is contested as to whether C.A. actually severed her relationship with B.D.G.. [ 10 ] C.A., T.S. and B.D.G. all continued to parent the boys in Edmonton. [ 11 ] In or about the fall of 2007, C.M.B., C.A. and B.D.G. commenced a polyamorous relationship which lasted for five years. [ 12 ] In July 2010 B.D.G., C.M.B., C.A., T.S. and the boys all moved from Edmonton to Nanaimo.

B.D.G.’s sister in law, N.G., loaned him a sum of money to support the move from Alberta to B.C. T.S. moved into a separate residence with a common-law partner who later separated from her. B.D.G., C.M.B., C.A. and the boys moved into a house located on a large property in Ladysmith owned by N.G.. N.G. and B.D.G.’s brother D.G. lived in a separate house located on the Ladysmith property. N.G. had acquired the property with lottery winnings.

Consequently, she did not require that any rent be paid for the use of the second residence on her property. [ 13 ] The boys spent half their time with T.S. and the other half with the parties and C.A.. [ 14 ] T.S., C.A. and B.D.G. have extended family in the Nanaimo area. C.M.B. does not. Most of her family live in Edmonton. They include her parents and their partners, her siblings and cousins, aunts and uncles. C.M.B.’s father and his family are Francophone. [ 15 ] B.D.G. suffers from a chronic medical condition called psoriatic arthritis which affects his joints and skin.

He is prescribed Remicade to treat the condition. He has not worked outside of the home since the parties came to British Columbia. After the move both C.M.B. and C.A. found new full-time employment in Nanaimo. Their employment income was used to support the family financially. [ 16 ] Following the birth of A.Q.G. in [omitted for publication], C.M.B. took a maternity leave from her employment. She returned to work in April 2012. By then she was pregnant with S.G.. [ 17 ] In or about late May or early June 2012 C.M.B. told B.D.G. she wanted to fly with A.Q.G. to Edmonton for her mother’s 50 th birthday.

C.M.B. says that B.D.G. rejected her idea of the Edmonton trip by either denying the trip outright or stating that he would

borrow funds so that they could drive to Edmonton rather than fly. [ 18 ] B.D.G. says that his main objections were based on worry for the safety of their unborn child on a flight. This was as a result of several miscarriages experienced by C.A. and by N.G.. B.D.G. says that he offered to borrow funds and drive C.M.B. to Edmonton and that he made it clear to her that he could not stop her from traveling. In any event, C.M.B. did not make a trip to Edmonton. [ 19 ] In or about early July 2012, C.M.B. told B.D.G. that she wanted to end her relationship with him and return to Edmonton with A.Q.G..

B.D.G. was afraid that she would take A.Q.G. to Alberta without his consent. On July 13, 2012, he obtained an order without notice to C.M.B. prohibiting either party from removing A.Q.G. from the Nanaimo/[omitted for publication] area. [ 20 ] C.M.B. separated from B.D.G. and C.A. in July 2012 but remained living in the same home for approximately one month until August 14, 2012. At that time C.M.B. left with A.Q.G. and stayed with a friend. [ 21 ] Following the separation, C.M.B. alleged that B.D.G. had been violent on various occasions and was financially and otherwise controlling of her.

On August 14, 2012 C.M.B. reported an incident to the RCMP that she alleges occurred in January 2012. [ 22 ] A series of further interim orders were made by the Provincial Court in Nanaimo. [ 23 ] On August 20, 2012, C.M.B. was granted interim sole custody and joint guardianship of A.Q.G..

B.D.G. was granted specified access to A.Q.G. three days a week. [ 24 ] On October 30, 2012 an interim order was made which provided that the parties were to have joint custody and joint guardianship of A.Q.G. and that A.Q.G. was to have her primary residence with C.M.B.. [ 25 ] C.M.B. was permitted by court order to travel to and stay in Edmonton with A.Q.G. between November 1, 2012 and January 31, 2013 so she would have the support of her family during her late pregnancy and following the birth of her second baby.

The order required her to re-establish her residence with the children in Nanaimo no later than February 1, 2013. B.D.G. was granted reasonable and generous access to A.Q.G.. [ 26 ] C.M.B. and A.Q.G. lived with her father and step-mother while in Edmonton before and after the birth of S.G.. [ 27 ] After C.M.B. returned to British Columbia with A.Q.G. and S.G., several further interim orders were made. They include an order made on February 25, 2013 which provided that B.D.G. was to have specified access to A.Q.G. and S.G.. [ 28 ] On April 22, 2013 another interim order was granted.

It provided that the parties were guardians of the children. B.D.G.’s regular parenting time with A.Q.G. included every Wednesday and Sunday from 10 AM to 7 PM and from Thursdays from 11 AM to 6 PM on Fridays. His parenting time with S.G. included three visits a week for up to three hours per visit. The order also specified that C.M.B. was to be present for S.G.’s visits. It also permitted B.D.G. to have some of his family, including C.A. and the boys, visit with S.G.. C.M.B. was breast-feeding S.G. at the time this order was made. [ 29 ] A five-day trial was held in May 2013.

The trial judge decided that C.M.B. could not relocate A.Q.G. and S.G. to Edmonton and imposed an equal and shared parenting

schedule in Nanaimo B.C. On appeal, the decision was overturned and remitted for a new hearing. [ 30 ] A.Q.G. and S.G. have been jointly parented on a three-day rotation since June 2013, aside from several trips that C.M.B. has taken with the children to Alberta for extended periods of time and several extended periods of time with B.D.G. in Nanaimo. Current situation of the parties [ 31 ] C.M.B. is an insurance broker.

Aside from her maternity leaves she has been employed by [omitted for publication] in Nanaimo since August 11, 2010. [ 32 ] B.D.G. has been a stay-at-home parent since the parties relocated to B.C. In Edmonton B.D.G. was employed as a warehouse worker. At each trial he testified that, depending on the resolution of this case he intends to attend a local college for retraining. [ 33 ] C.A. is employed as the manager at [omitted for publication] in Nanaimo, B.C. [ 34 ] T.S. is employed as [omitted for publication] in Nanaimo, B.C.. [ 35 ] C.M.B. has been offered a position with her previous employer in Edmonton.

It has a slightly lower salary than her current employment in Nanaimo, B.C.; however, there are benefits available to her such as the opportunity to earn more income through bonuses. [ 36 ] T.S. and C.A. participate in A.Q.G. and S.G.’s care when they are in B.D.G.’s care. [ 37 ] B.D.G., T.S. and C.A. have resumed their polyamorous relationship. The three of them raise the boys, G.G. and P.G. Allegations of violence [ 38 ] Although the specific facts are disputed the following incidents occurred:

a) In or around August 2007 in Edmonton, C.A., C.M.B. and B.D.G. were drinking. This was the first time that C.A. had met C.M.B. with B.D.G.. C.A. became aggressive and began pushing B.D.G.. In response, B.D.G. helped C.A. out of the home and called his cousin to pick C.A. up and take her home. At one point, C.A. struck the front door of the townhouse they occupied with a shovel. C.A. says that she is not a “good drinker” and that this is why she is not a regular drinker.

b) In 2008 or 2010 in Edmonton, B.D.G. and C.M.B. were involved in an argument. B.D.G. testified that he felt frustrated and ignored and he physically took C.M.B.’s phone away from her. C.M.B. testified that B.D.G. was jealous and pushed her down the stairs and injured her rib. B.D.G. denies this. B.D.G. claims that C.M.B. smashed cups on the floor and repeatedly pushed him while he was attempting to withdraw from the argument to sleep in the guest bedroom. C.M.B. denies this.

c) An incident occurred in the summer of 2010 in Nanaimo when C.M.B. and B.D.G. had been drinking. B.D.G. says that C.M.B. threw candles at the home and beer bottles at him. He says that he told her that if she damaged property he would damage something of hers. He says she kept throwing beer bottles and he threw a lawn chair at her car. C.M.B. denies throwing anything at the former family home or at B.D.G..

d) In January 2012, on C.M.B.’s birthday, there was an altercation at the home between B.D.G. and C.M.B.. The incident occurred in the early morning hours when A.Q.G., G.G. and P.G. were sleeping. C.M.B. and B.D.G. had been drinking. C.A. had not. The parties have opposing accounts of this altercation. Legal Framework [ 39 ] B.D.G. and C.M.B. have never been married. Therefore, British Columbia’s Family Law Act (the” FLA”) , which came into effect in March 2013, governs. [ 40 ] The FLA has provisions dealing with the relocation of children. The FLA provides for different approaches in different circumstances.

Section 46 of the FLA provides the criteria to be considered on an application to change a child’s residence when no written agreement or court order respecting parenting arrangements applies in respect of the child. [ 41 ] Division 6 of the FLA applies if a written agreement or court order does apply to a child. [ 42 ] The analysis to be conducted under Division 6 depends upon whether the relocating guardian and the other guardian have substantially equal parenting time with the child.

If the non-relocating guardian does not have substantially equal parenting time with the child then there is a rebuttable presumption in favour of allowing the relocation of the child. [ 43 ] Therefore, to decide which part of the FLA applies in this case it is necessary to determine if a written agreement or court order applies to A.Q.G. and S.G.. [ 44 ] It is clear that there is no written agreement between the parties. The question is whether there is a court order that now applies to the children. [ 45 ] In some cases judges have decided that an interim order is an order for the purposes of

section 46 of the FLA. In others, judges have decided that it is not. [ 46 ] The first British Columbia Supreme Court case to interpret

section 46 of the FLA is L.R.J. v. S.W.R . 2013 BCSC 1344 . In that case, Mr. Justice Betton discussed the differences between

section 46 and Division 6 of the Act and noted that it is not always obvious whether an agreement or order is in place. He found that interim orders providing for rights of access pending determination of the relocation application constitute an order for care arrangements and, as a result, invoked the application of Division 6. [ 47 ] A different

interpretation was applied in S.J.F. v. R.M.N. 2013 BCSC. Mr. Justice Punnet declined to follow L.R.J. on the question of whether an interim order makes Division 6 applicable. [ 48 ] In A.J.D. v. E.A.E. Madam Justice Harris considered both L.J.R. and S.J.F. and stated that “the FLA does not distinguish between written agreements which are interim and those which establish more permanent arrangements, and indeed it would be difficult to make this distinction”. She found that the parties interim written agreement was of such a significant nature that

section 69 should apply. [ 49 ] It seems from the decided cases that an interim agreement is more likely to invoke the application of Division 6 if it reflects a more long-standing agreement between the parties. An interim order is less likely to invoke

section 69 if it was imposed in a

summary proceeding to manage or confirm the status of the parties pending a final resolution. [ 50 ] In the case at bar, the last order made before the first trial was held is the interim order made on April 22, 2013 and referred to above. In my view, that order is not an order for the purposes of

section 46 of the FLA . It was clearly intended to apply for a limited duration. When it was made, S.G. was a baby and was still breast feeding. The order has not been followed by the parties since the first trial judge’s order was made in June 2013. Therefore, it cannot properly be said to presently apply in respect of the children. [ 51 ] The only order made after the trial judge’s order of June 25, 2013 is a consent order entered into by the parties on December 2, 2013. This consent order varies the trial judge’s order only in that it specifies a different parenting

schedule for the 2013 winter holiday period. The consent order provides that on January 16, 2014 the three day rotation provided for in the trial judge’s order shall resume. As I stated earlier, the parties have continued to follow the rotating three day

schedule for both A.Q.G. and S.G. to this day despite the fact that the trial judge’s order was overturned on May 6, 2014. [ 52 ] The question which arises is whether an order which varies a trial order which is, itself, overturned on appeal remains in effect. Counsel were not able to provide me with any case authority on this issue. I believe that an order which varies a trial order which is subsequently overturned on appeal would no longer be in effect. [ 53 ] For the purpose of my analysis I will proceed on the basis that there is not a court order which presently applies to A.Q.G. and S.G.. I will, therefore, apply

section 46 of the FLA in deciding whether to allow C.M.B. to relocate them from Vancouver Island to Edmonton.

[ 54 ] If I am wrong in deciding that the consent order of December 2, 2013 is not an order for the purposes of

section 46 of the FLA then I find that there is an order that provides the parties with substantially equal parenting time and that the applicable

section is section 69(5). Either way, there is no rebuttable presumption which applies. [ 55 ] I can say that whether I apply

section 46 or section 69(5) of the FLA my ultimate decision on the question of relocation of the children’s residence would be the same. [ 56 ] Section 46(2) of the FLA reads as follows:

(2) To determine the parenting arrangements that would be in the best interests of the child in the circumstances set out in subsection (1) of this section, the court (

a) must consider, in addition to the factors set out in section 37 (2) [ best interests of child ], the reasons for the change in the location of the child’s residence, and (

b) must not consider whether the guardian who is planning to move would do so without the child. [ 57 ] Section 37(1) of the FLA states that in making any order respecting guardianship, parenting arrangements or contact with a child, the court must only consider the best interests of the child. [ 58 ] Section 37(2) sets out the factors which a court must consider in determining the best interests of the child. Section 37(2) reads:

(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 relationship 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, and 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, and whether the family violence is directed toward the child or another family member; (

h) whether the actions of the 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 proceedings relevant to the child safety, security or well-being. [ 59 ] Section 37(3) states that an order “is not in the best interests of the child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well - being”. [ 60 ] Section 37(4) states that in making a decision a court may consider a person’s conduct only if it substantially affects a factor set out in subsection (2), and only to the extent it affects that factor. [ 61 ] Given that in this case there has been family violence as defined in the FLA,

section 38 must be considered. [ 62 ]

Section 38 reads as follows: 38 For the purposes of section 37(2) (

g) and (h) [best interests of child], the court must consider all the following: (

a) the nature and seriousness of the family violence; (

b) how recently the family violence occurred; (

c) the frequency of family violence; (

d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive controlling behavior directed at a family member; (

e) whether the family violence was directed towards the child; (

f) whether the child was exposed to family violence that was not directed towards the child;

(

g) the harm to the child’s physical, psychological and emotional safety, security and well-being as a result of the family violence; (

h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring; and, (

i) any other relevant matter. [ 63 ] The British Columbia Court of Appeal in S.S.L. v. J.W.W. 2010 BCCA 55 sets out the approach to be followed by a trial judge when considering whether to permit a guardian to relocate a child. The S.S.L . decision predates the FLA which came into force in March 2013. [ 64 ] In its recent decision in Walker v. Maxwell 2015 BCCA 282 rendered on June 23, 2015 the Court of Appeal confirmed that the principles articulated in S.S.L. continue to inform the analysis mandated by the Act. [ 65 ] S.S.L. (paragraph 24 ) requires that I analyze the evidence in four possible scenarios. (

i) primary residence with mother, C.M.B., in Edmonton, Alberta; (ii) primary residence with father, B.D.G., in Nanaimo, BC; (iii) shared parenting in Nanaimo; (iv) shared parenting in Edmonton. [ 66 ] According to S.S.L. , in doing so I must know that the court’s first task will be to determine which parent is to have primary residence.

When the question of primary residence is evenly balanced and the court finds the best interests of the children require both parents to be in the same locale then the court will need to choose between the shared parenting options offered by the parents, without presuming the current caregiving and residential arrangement is to be the preferred one. [ 67 ] Sections 46(2) and 69(7) of the FLA both prohibit the court from considering whether the parent who is planning to move would still do so if the child’s relocation is not permitted. [ 68 ] At the appeal of the first trial decision, counsel for C.M.B. argued that section 69(7) of the Act specifically prohibits the court from considering the status quo in determining the best interests of children in a mobility case. [ 69 ] He argued that an order that imposes the “third scenario” in which both parties remain in Nanaimo would in effect be allowing the status quo to supersede other factors in the specific way that the Court of Appeal has regularly warned against. [ 70 ] In her decision on the appeal Madam Justice Fleming addressed this issue.

She reviewed the case law and rejected the idea that section 69(7) - which is practically the same as section 46(2)(b) - precludes the court from considering the status quo. [ 71 ] She states that the subsection cannot properly be interpreted to limit the court from engaging in a “full and sensitive inquiry” into the best interests of the child and that to do so would be to risk prioritizing the rights of the relocating parent over the best interests of the child. [ 72 ] Madam Justice Fleming states further that the subsection requires the court to discount any statements made by the relocating parent that he or she would not move without the children and engage in an analysis of the child’s best interests in accordance with s. 37(2), the scope of which will depend upon the reality of the situation. [ 73 ] In its decision in Fotsch v Begin 2015 BCCA 403 rendered on September 25, 2015, the British Columbia Court of Appeal considered whether the FLA requires the trial judge to apply the four scenario analysis mandated in S.S.L. . [ 74 ] Mdm.

Justice D. Smith, writing for the court, states as follows: [76] With respect, I do not agree that the FLA requires a four scenario analysis.

As explained in S.S.L. and the other decisions of this court noted above, the purpose of the four scenario analysis is to address the concern that a presumptive disposition of the status quo based on existing parenting arrangement might be relied upon as in the best interests of the child where the relocating parent has stated that he or she would stay in existing locale if their application was declined. [78] In my view, the analysis mandated by the FLA would seem to foreclose any presumptive disposition based on an existing parenting arrangement given the extensive list of factors that must be considered before concluding what parenting arrangement is in the best interests of the child.

It would also seem to create a complete code for the required analysis, when it differs in some respects from the common-law test. [ 75 ] In Fotsch , one of the grounds of appeal was that the trial judge erred in considering whether the father would relocate if the mother’s relocation application for her and the child was granted. [ 76 ] The Court addresses this issue as follows: [81] In the end, however, the short answer to this ground of appeal is that there is no statutory provision in the FLA that prohibits consideration of whether the non-relocating guardian would move with the relocating guardian and child if the relocating guardian’s application is allowed.

The prohibition in s. 69(7) of the FLA is expressly limited to the relocating guardian. [ 77 ] I note that section 69(7) is practically the same as section 46(2) (a), which I am applying in the case at bar. [ 78 ] Given the Fotsch decision, it is no longer required that the trial judge apply the four scenario analysis. The reality, however, is

that in this case, as in all relocation cases, there are four possible outcomes. [ 79 ] If I permit C.M.B. to relocate with A.Q.G. and S.G. to Edmonton, B.D.G. will either follow or will stay in the Nanaimo area. [ 80 ] If I decide that C.M.B. may not relocate with A.Q.G. and S.G. to Edmonton, she will either relocate to Edmonton on her own or will remain in the Nanaimo area with the children. [ 81 ] In deciding whether to permit C.M.B. to relocate with the children to Edmonton, I may consider whether B.D.G. would move to Edmonton in the event that C.M.B.’s application is allowed.

I may not consider whether C.M.B. would relocate by herself to Edmonton in the event her application is not allowed. A nalysis [ 82 ] I will now turn to the question to be decided. That is, should C.M.B. be permitted to relocate A.Q.G. and S.G. from Nanaimo, British Columbia to Edmonton Alberta? [ 83 ] In doing so, I will apply

section 46 of the FLA . This requires me to consider the factors set out in section 37(2) and

section 38 of the FLA as well as the reasons C.M.B. wishes to relocate the children. In accordance with section 46(2) (b), I must not consider whether C.M.B. would move to Edmonton without the children. [ 84 ] During the trial I heard evidence from several witnesses. [ 85 ] C.M.B. testified in support of her application for an order allowing relocation of A.Q.G. and S.G.. Her friend and former co- worker, E.W., also testified. [ 86 ] B.D.G. testified in opposition to C.M.B.’s application.

He also called as witnesses C.A., T.S., N.G. and friend J.B.. [ 87 ] Separate court ordered reports written by family justice counsellors Lisa Bury and Jane Ward were filed as evidence in the trial. Ms. Ward testified and was examined by both counsel. [ 88 ] During the course of the trial I heard many days of evidence. I have carefully considered all of it.

I will only refer to the evidence which I find is important to my decision as to what is in the best interests of A.Q.G. and S.G.. [ 89 ] Although, given Fotsch, it may no longer be necessary, I will begin by considering the matter of primary residence. [ 90 ] For reasons which follow, I am of the view that the question of primary residence is evenly balanced between C.M.B. and B.D.G. and that it would be in A.Q.G. and S.G.’s best interests to have both their parents reside in the same locale.

I recognize, however, that I cannot make an order which would ensure that this takes place. [ 91 ] If I decide that C.M.B. may relocate with A.Q.G. and S.G. to Edmonton I cannot order B.D.G. to follow. Similarly, if I decide that C.M.B. may not relocate A.Q.G. and S.G. to Edmonton I cannot order her to remain in Nanaimo. [ 92 ] It follows that if I permit C.M.B. to relocate the children to Edmonton I must be comfortable with the possibility that she be their primary caregiver.

This is because B.D.G. may choose to remain in Nanaimo. [ 93 ] It also follows that if I decide that C.M.B. may not relocate the children to Edmonton I must be comfortable with the possibility that B.D.G. will be their primary caregiver.

This is because C.M.B. may choose to move to Edmonton on her own. [ 94 ] Given that I believe that the question of primary residence is evenly balanced between C.M.B. and B.D.G., my ultimate decision will come down to whether I find that it is in A.Q.G. and S.G.’s best interests to live in Nanaimo or in Edmonton. [ 95 ] I will provide my reasons for deciding that the matter of primary residence is equally balanced.

I will then go on to conduct an analysis as to whether it would be in A.Q.G. and S.G.’s best interests to live in Nanaimo or Edmonton. [ 96 ] C.M.B., submits that it is clear that it is in A.Q.G. and S.G.’s best interests to have her as their primary caregiver. [ 97 ] In support of her argument she first points to the opinions of the two family justice counsellors. She then focusses on things which she submits support a conclusion that B.D.G. should not be a primary care parent.

These things include allegations of violence, B.D.G.’s credibility, B.D.G.’s parenting and allegations of controlling and deceptive behavior. [ 98 ] I will first consider the reports of Ms. Bury and Ms. Ward. [ 99 ] Ms. Bury’s report is dated March 5, 2013. At that time A.Q.G. was just under two years and S.G. was just over three months old. [ 100 ] In her report under the heading Health and Emotional Well - Being Ms. Bury states, in part, as follows: A.Q.G. (22 months) is a bright and cheerful child. She is engaging and articulate for her age. A.Q.G. is a healthy child with no major health issues.

A.Q.G. was comfortable and happy in both home environments during my visits. S.G. (3.5 months) is a healthy infant with no major health concerns who is meeting all his milestones. He appears to be an easy-going and content baby. [ 101 ] Under the heading Views of the Children Ms. Bury notes that while A.Q.G. is an articulate child for her age and has a great vocabulary she is too young to express her views.

[ 102 ] Under the heading Children’s Ties with Others Ms. Bury states, in part, as follows: A.Q.G. is a friendly and loving child. She has a loving and close connection with her mom and her little baby brother S.G.. She is comfortable and happy with them both and already takes pride in her role as a big sister. A.Q.G. is close with her extended maternal family which includes the maternal grandparents and step grandparents who all live in Edmonton. A.Q.G. has a warm and close relationship with her dad, step mom C.A. and her two half- brothers, G.G. (12) and P.G. (9).

She is physically affectionate with her older brothers who in turn are loving and affectionate with her. Her brothers are both really engaging and caring children who dote on their little sister. The children are able to all engage in fun and collaborative activities together. They play well together inside and out at the family home. A.Q.G. has a comfortable relationship with her step mom C.A. who was a caregiver for her for the first 15 months of her life. C.A. is an [omitted for publication] who is child focused and practical in her approach to nurturing children.

C.A. is respectful in her role as a step parent and is hopeful that a co-parenting arrangement will be developed so all the children can experience the benefits of everyone in their blended family. [ 103 ] In her report under the heading Parental Capacity Ms. Bury says, in part, the following: C.M.B. is a loving and caring mom. She lives in a comfortable suite in a pleasant neighbourhood. Her home environment is child focused where she has lots of toys and activities set up as well as a great outdoor play space for the children.

C.M.B. uses positive parenting language and provides healthy and firm boundaries for A.Q.G.. She has a fun and respectful connection with A.Q.G. who is very comfortable in her care. C.M.B. is keeping busy with the birth of S.G. but has developed a nice routine with the children and has created a healthy home environment. B.D.G. is a conscientious and involved dad who acknowledges that his family dynamic is complicated. He and C.A. have a positive co- parenting relationship with T.S. who is P.G.’s biological parent and a mom to G.G..

T.S., C.A. and B.D.G. have an arrangement where G.G. and P.G. spend time together with T.S. and her partner few days a week and then with B.D.G. and C.A. a few days a week. They all share in responsibilities for school, extracurricular activities and health planning. The boys consider both T.S. and C.A. to be their moms. B.D.G. has been active with G.G. and P.G.’s school and extracurricular events. He has been a stay-at-home parent who is responsible for meal planning and daily care. He lives on a shared acreage in [omitted for publication] in a comfortable home adjacent to his brother’s family home.

The property has a great outdoor environment for kids providing lots of natural space to run around and areas to care for animals. The family has chickens that provide a lot of excitement for A.Q.G.. B.D.G. has a close relationship with A.Q.G. who he describes as a “sweet spirited” child. He looks forward to any time he can spend with her and feels that it is important for all the children to have connection. He is trying to develop a bond with S.G. who is an infant living in a different home which can be challenging. [ 104 ] In her report under the heading

Summary and Recommendations Ms. Bury states, in part, as follows: B.D.G. and C.M.B. are both loving and considerate parents who want what is best for their children. They have experienced a breakdown of their family unit which included another polyamorous partner C.A. and two children G.G. and P.G.. It is a complicated family matter where one option of relocation presents a better environment and opportunities for C.M.B. as a parent and an individual in Edmonton and possibly the children with their extended maternal family.

This, however, is not in the children’s best interest in regards to their nuclear family and most specifically their relationship with their dad. For children so young to develop a bond and connection via Skype and infrequent contact is difficult at best. A.Q.G. at 22 months has developed a close bond and loving relationship with her dad, stepmom C.A. and her two older siblings G.G. and P.G.. S.G. at 3.5 months is not yet bonded with the family but does have a right to do so in a healthy an age-appropriate way. [ 105 ] In the end, Ms.

Bury recommended the following parenting arrangement: That C.M.B. maintain the primary care of A.Q.G. and S.G.. That C.M.B. and B.D.G. have joint guardianship of A.Q.G. and S.G.. That B.D.G. has access to A.Q.G. for two nights per week, and other times as mutually agreed-upon. That B.D.G. has access to S.G. for three days per week for two hours. That B.D.G. has increased access to S.G. as he grows older and more independent from breast-feeding. [ 106 ] I note that Ms. Bury wrote her report approximately three years ago.

At that time A.Q.G. and S.G. were much younger and spent considerably less time with their father than they do now. Since June of 2013 they have both lived equal time with each parent. [ 107 ] As a result of the age of Ms. Bury’s report, I put less weight on her recommendations as to parenting arrangements than I would do otherwise. [ 108 ] Ms. Ward’s report is dated April 1, 2015. At that time A.Q.G. was almost four years old and S.G. was about two years and four months. [ 109 ] At the conclusion of her report, Ms. Ward recommends the following: B.D.G. and C.M.B. are guardians of A.Q.G. and S.G..

C.M.B. and B.D.G. will have all parental responsibilities for A.Q.G. and S.G.. C.M.B. be permitted to relocate to Alberta with A.Q.G. and S.G. and that their primary residence be with her. B.D.G. to have parenting time with A.Q.G. and S.G. in [omitted for publication] for one week at Christmas time and one week during the summer each year. The length of these parenting times can be increased as the children get older.

C.M.B. to cover the cost of transportation for the children to parenting time with their father for once per year. B.D.G. to have generous parenting time in Alberta with A.Q.G. and S.G. with one weeks notice to C.M.B.. Alternatively, if C.M.B. is to continue to reside in Nanaimo, the primary residence for A.Q.G. and S.G. to be with her. Parenting time for B.D.G. to include, but not be limited to, every other weekend from Friday afternoon until Sunday evening, plus two additional visits for dinner or an activity after school each week.

Holidays and special days with the children to be shared on an alternating basis. [ 110 ] Upon reviewing Ms. Ward’s report and considering her testimony, it seems to me that her recommendation that C.M.B. be the primary care parent and be permitted to relocate to Alberta with A.Q.G. and S.G. is based primarily on her understanding of the violence which has occurred, on her belief that B.D.G. has been dominant, abusive and controlling, on her belief that B.D.G. is not an active and engaged parent and on her belief that the community at large does not yet accept polyamorous relationships.

She believes that A.Q.G. and S.G. may suffer negative consequences if they are raised in a polyamorous household. She also took into account statements made to her by A.Q.G.. [ 111 ] In my view, some of the assumptions underlying Ms. Ward’s opinions and recommendations are not correct. [ 112 ] Ms. Ward’s understanding of the past violence in the parties’ relationship seems to be based almost solely on C.M.B.’s account of what occurred. Ms.

Ward seems to have accepted C.M.B.’s version of events at face value without asking B.D.G. for his account of what occurred. [ 113 ] During the course of the trial I heard considerable evidence regarding four violent incidents which occurred. I heard evidence from C.M.B., B.D.G., C.A. and, to a lesser extent, T.S..

I heard conflicting accounts as to what happened. [ 114 ] I find that for the purposes of my decision it is not necessary to set out each of the witnesses’ evidence as to what they recall having occurred. [ 115 ] Generally, I found B.D.G.’s account of the incidents to be more detailed and more plausible. In several instances the evidence of C.A. corroborated that of B.D.G.. C.M.B.’s accounts of the violent incidents tended to be one sided.

B.D.G., on the other hand acknowledged his role and responsibility in each incident. [ 116 ] On the whole of the evidence, I am not satisfied on a balance of probabilities that the violent incidents occurred in the manner described by C.M.B.. I find that both B.D.G. and C.M.B. must bear responsibility for what occurred. I am unable to conclude that B.D.G. was the sole aggressor or was more physical with C.M.B. than she was with him. In each instance both B.D.G. and C.M.B. had been drinking. I note that three of the four incidents occurred before A.Q.G. was born.

The fourth occurred before S.G. was born and when A.Q.G. was about nine months old and asleep. [ 117 ] C.M.B. and B.D.G. have been separated since the summer of 2012. I heard no evidence to suggest that there has been any violence between B.D.G. and C.M.B. or between B.D.G. and C.A. or T.S. since then. I have no reason to believe that there will be any further problems with family violence. [ 118 ] In considering the matter of family violence I have considered the relevant provisions of the FLA . In particular, I have considered the factors set out in section 37(2) (

g) and (

h) and in

section 38. [ 119 ] In all of the circumstances, I find that the violent incidents are a neutral factor in my consideration of the matter of primary residence. [ 120 ] Ms. Ward appears to accept C.M.B.’s description of B.D.G.’s behaviour and the nature of his relationship with her. [ 121 ] At page 4 of her report she writes as follows: Her information is there was significant violence, mental abuse and anger when B.D.G. was drinking, which was often. C.M.B. stated that he has threatened her, been coercive, bullying and damaged her vehicle. [ 122 ] At page 9 Ms.

Ward states: C.M.B. asserts she is uncomfortable with the level of dysfunction in B.D.G.’s home. She described the relationship they were in together as horrible and abusive in a number of ways. According to her, the relationship was “polygamy” but she says B.D.G. labels it as “polyamory”. She described B.D.G. as chronically unemployed and says he is an alcoholic who abuses prescription drugs on occasion. [ 123 ] It seems that Ms. Ward did not put these assertions to B.D.G. and simply accepted them at face value. Had she done so she may have had a different view.

On all of the evidence, I do not find that B.D.G. was coercive or that he bullied or threatened C.M.B.. [ 124 ] It is clear that Ms. Ward believes that being raised in a polyamorous family may have negative consequences for A.Q.G. and S.G.; however, there is no evidence to support that concern. [ 125 ] There is no evidence that A.Q.G. and S.G. have been negatively affected by spending half their time for the past two and one half years in a polyamorous household. [ 126 ] Furthermore, there is no evidence that being raised in a polyamorous family has had a negative effect on either G.G. or P.G..

The evidence is that both boys are well-adjusted and happy and have good friends who sometimes stay over. B.D.G. and the boys’ respective mothers are open with the parents of the boys’ friends about their polyamorous lifestyle. This has not been an issue. [ 127 ] As part of her assessment, Ms. Ward visited the homes of both C.M.B. and B.D.G.. Each visit lasted about one and one-half hours. In her testimony, Ms. Ward made it clear she found that, unlike C.M.B., B.D.G. was less engaged with A.Q.G. and S.G. than she had expected.

It is apparent that this was an important factor in her reaching the conclusions she did. [ 128 ] B.D.G. gave clear evidence as to the active and significant role he plays in the day to day lives of A.Q.G. and S.G. and of the

boys. He testified in detail as to what he does with and for A.Q.G. and S.G. on a typical week day and weekend day when he has them. [ 129 ] His evidence as to the role he plays in the lives of his children is supported by that of C.A. and T.S.. [ 130 ] For over two and one-half years A.Q.G. and S.G. have spent half of their time with each parent.

The fact that B.D.G. has been a stay at home father all of that time has enabled him to spend considerable time with the A.Q.G. and S.G. when they are in his care. [ 131 ] From Monday to Friday each week C.A. and T.S. work outside the home and G.G. and P.G. attend school. During this time B.D.G. is solely responsible for the care of A.Q.G. and S.G.. [ 132 ] Ms. Ward testified that A.Q.G. and, to a greater extent, S.G. suffer from less secure attachment than is appropriate for children their age.

She said that both children are at risk of having significant emotional and psychological problems if their attachment issues are not rectified. She said that S.G. is likely to require significant counselling if the attachment issue is not remedied. [ 133 ] Ms. Ward recommended that to address A.Q.G. and S.G.’s attachment problems they should be placed in C.M.B.’s primary care. She said that this would help them develop the strong attachment they require. She recommended that C.M.B. be the primary care giver because, in her view, she is more closely attached to them. [ 134 ] Ms.

Ward’s opinion regarding attachment seems to be based, not on what she herself has observed, but on what others have said to her. She noted that S.G. has been referred to as “serious S.G.” and that others have said that it seems S.G. has “shut down” and just accepts his care schedule. [ 135 ] It is clear from her testimony that Ms. Ward has a limited knowledge of attachment disorders. I will quote an exchange between Ms. Ward and counsel for B.D.G. from a transcript of evidence given on May 22, 2015. Q. Ok. And you had stated that A.Q.G. and S.G. had not formed proper attachment bonds with either parent.

Do they suffer from an attachment disorder? A. Probably, yes. Q. Which -- one? A. I don’t know the name of it, but I know that there -- have been caused psychic pain and it’s going to impact on them. THE COURT: Sorry, I didn’t hear that answer. You know they’re? A. Oh that there -- they’ve got some psychic pain, they’ve got chaos going on in their lives and they will suffer for it. MS. RECALMA: Q. But you don’t know which attachment disorder that would fall under? A. No. Q. Do you know the attachment disorder categories? A. I’ve read them, I’ve heard them, yes. Am I a psychologist? No. Q.

But you don’t recall what they are? A. Not at this point. [ 136 ] In my view, Ms. Ward does not have the necessary expertise to offer a reliable opinion on attachment issues. Furthermore, I believe that Ms. Ward’s opinion is based on incorrect facts. During the course of the trial I heard considerable evidence in respect of S.G.. The evidence I heard does not support a finding that he is “shut down” or otherwise has problems connecting with the significant people in his life. [ 137 ] In her report Ms.

Ward includes comments made by S.G.’s day-care worker as follows: J.S. is the day-care worker with most contact with S.G.. She explained that A.Q.G. and S.G. are together during the morning and they really love each other. According to her, A.Q.G. is protective of her younger sibling and she enjoys being a big sister. She described S.G. as being quiet, well mannered and well behaved. This little boy seems to pay attention and learn even if he is not very vocal. He seems to be adapting to the program and to get along well with his day-care friends.

Overall, J.S. finds S.G. has a sense this is just the way things are. [ 138 ] C.M.B. submits that B.D.G. has shown a pattern of deceptive and controlling behavior. [ 139 ] She says B.D.G. was deceptive in that initially he did not disclose to her that he was in a polyamorous relationship with C.A. and T.S. and did not disclose to them that he was in an intimate relationship with her.

She says he was also deceptive in that after C.A. and T.S. learned of his relationship with her he did not advise T.S. that C.A. was back living with him and that she was exercising her parenting time with G.G. and P.G. at his residence in Edmonton.

C.M.B. says further that later B.D.G. did not tell her that he and C.A. had resumed their polyamorous relationship with T.S.. [ 140 ] While it would have been better and more honourable for B.D.G. to have been up front and honest about his relationships, I find that the fact that he wasn’t does not impact on his ability to be a good parent. [ 141 ] C.M.B. argues that B.D.G. is controlling. She says that he pressured her to have a threesome with him and C.A.. I do not accept

this. Furthermore, whether or not C.M.B. felt pressure the first time she engaged in sexual activity with B.D.G. and C.A. together, I have no doubt that she freely chose to enter into and continue a polyamorous relationship with them. I also find that C.M.B. later freely chose to engage sexually with T.S.. [ 142 ] C.M.B. also argues that she was pressured to move from Edmonton to Nanaimo. She says that she was carrying some debt that had been incurred for the benefit of B.D.G. and C.A.. In my view, C.M.B. saw advantages in moving to Nanaimo and would not have moved had she not wanted to do so.

It was after moving to Nanaimo that A.Q.G. and S.G. were born. [ 143 ] I find that C.M.B. acted assertively during her relationship with B.D.G.. In addition, I found her to be an intelligent and confident witness. [ 144 ] On all of the evidence, I do not find that B.D.G. has been dominant or controlling. The evidence shows that he is flexible and cooperative in co-parenting A.Q.G. and S.G.. I found him to have a gentle manner when testifying. [ 145 ] I also find that B.D.G. was not, and is not, an alcoholic.

The evidence establishes that in the early and mid-stages of their relationship both B.D.G. and C.M.B. drank regularly and sometimes to excess. I find that since the separation B.D.G. drinks only occasionally and in moderation. [ 146 ] C.M.B. submits that B.D.G. has problems with his credibility. She refers to some discrepancies in his evidence.

In my view these discrepancies are of little relevance to the questions I must decide. [ 147 ] In considering the matter of primary care, I find paragraph 32 in S.S.L. to be helpful. [32] … While courts have said consistently for years that the amount of time, measured in days, overnights, and sometimes hours, is only one of many factors to be considered in determining caregiver roles, this case exemplifies how it can come to dominate the trial to the exclusion of more important child - centered evidence as to the best parenting arrangements in the circumstances as they are and can reasonably be foreseen to be.

Far more significant is the role each parent has played in the children’s lives; which parent has taken primary responsibility for their health, safety, education and overall welfare; which parent deals with the mundane but necessary arrangements of their lives – clothing, haircuts, extracurricular activities, gifts for friends, doctors’ and dentists’ appointments, contact with their extended family; and which parent has the best perception of the emotional needs of the children. In sum, what it is that each parent contributes to the children, as care-giver.

Only when those contributions are made clear will an understanding be reached as to what arrangements will work best for the children going forward. The analysis of the parent’s role is fundamental to the determination of a primary care-giver, whether continued shared parenting is in the children’s best interests, and where they should live. [ 148 ] Upon considering all of the evidence in light of what is quoted above in S.S.L. , I find that, for over two and one half years, neither C.M.B. nor B.D.G. has been the sole primary care-giver for A.Q.G. and S.G..

Rather, each of them has played a significant and equal role in their day to day lives. They have each taken responsibility for A.Q.G. and S.G.’s health, safety, education and overall welfare. [ 149 ] On all of the evidence I find that both C.M.B. and B.D.G. are loving and capable parents.

I find as well that each of them have a very close bond with A.Q.G. and S.G.. [ 150 ] Given my finding that C.M.B. and B.D.G. each fulfill the role of a primary care parent and that A.Q.G. and S.G. are very closely attached to each of them, I have concluded that A.Q.G. and S.G.’s interests would be best served if their parents reside in the same locale. [ 151 ] While I have concluded that it would be in A.Q.G. and S.G.’s best interests for their mother and father to live in the same location, I cannot ensure that such will be the case.

As I stated earlier, this is because I have no control over where C.M.B. and B.D.G. will reside. [ 152 ] What I can determine is whether A.Q.G. and S.G. will reside in the Nanaimo area or in Edmonton. [ 153 ] I will now consider whether A.Q.G. and S.G.’s interests would be better served by living in Nanaimo or in Edmonton. [ 154 ] In determining where it would be best for A.Q.G. and S.G. to reside I must apply

section 46 of the FLA . In doing so, I must consider C.M.B.’s reasons for wanting to relocate A.Q.G. and S.G. to Edmonton as well as the factors set out in section 37(2).

I must not consider whether C.M.B. would move to Edmonton on her own in the event that I decide that she cannot relocate the children there. [ 155 ] C.M.B. has a few reasons for wanting to move with the children to Edmonton. [ 156 ] Firstly, she feels that she has little support in Nanaimo and would like to live closer to her immediate and extended family and to some of her friends. [ 157 ] Secondly, she no longer favours the polyamorous lifestyle and would like to disassociate herself and A.Q.G. and S.G. from it. [ 158 ] Thirdly, she has an opportunity to work for her former employer in Edmonton.

Given benefits and possible bonuses, she may receive a little better remuneration in Edmonton than she does presently. [ 159 ] I find that it is somewhat challenging to compare the Nanaimo and Edmonton scenarios.

This is because while I have a good understanding of what life would be like for A.Q.G. and S.G. if they are to remain living in the Nanaimo area I don’t have a really clear a picture of what life would be like for them in Edmonton. [ 160 ] I heard evidence as to the nature of A.Q.G. and S.G.’s relationships with others in Nanaimo including not only C.A., T.S., G.G. and P.G. but other relatives and friends. [ 161 ] In contrast, I heard little detail about C.M.B.’s family and friends in Edmonton or about the relationship she has with them. For

example I do not know what kind of relationship C.M.B. has with her siblings. I do not know if her siblings have children and, if so, if any of them are similar in age to A.Q.G. and S.G.. As a result it is not possible to know what relationships A.Q.G. and S.G. would form if they relocated to Edmonton. [ 162 ] I heard considerable evidence about the residence, large property and location where A.Q.G. and S.G. have resided when they are with their father. I also heard of the things available to them there such as animals, a pool and play equipment.

I have been advised by counsel that B.D.G. and the others have recently moved into another residence on the same property. [ 163 ] In contrast, I only know that A.Q.G., S.G. and C.M.B. will live initially at C.M.B.’s father’s place if they relocate to Edmonton. I heard no evidence as to the nature of his residence or its location in relation to other people and things.

I also heard no evidence as to the likely location of the residence C.M.B. would move into with the children after staying at her father’s place. [ 164 ] T.S., who has family in Nanaimo, was very clear in her evidence that she will not move with P.G. to Edmonton if I allow C.M.B. to relocate A.Q.G. and S.G. there. She testified that she would not do so even if C.M.B. relocates A.Q.G. and S.G. to Edmonton and B.D.G. follows them there. [ 165 ] C.A. testified that she is adamant that she does not want G.G. and P.G. to be separated.

Accordingly, like T.S., she would not be willing to move to Edmonton. [ 166 ] It is clear, therefore, that if I decide that C.M.B. may relocate with A.Q.G. and S.G. to Edmonton, B.D.G. would be forced to decide between living with C.A., T.S., G.G. and P.G. and moving to Edmonton so as to live in the same community as A.Q.G. and S.G..

B.D.G. characterized this as an almost impossible decision for him. [ 167 ] On the evidence as a whole, I find that it is very likely that, ultimately, B.D.G. would not be willing to leave his two partners and two older boys behind and so would not move to Edmonton. [ 168 ] This is because living where he does provides B.D.G. with certain benefits. He is together with C.A., T.S., G.G. and P.G.. He has the financial support of C.A. and does not have to pay for accommodation. If he is to move to Edmonton, B.D.G. would have to pay for a place to live and would have to find employment. He has limited education.

He has the equivalent of grade 12 but no post- secondary education. He has no particular training or special skills. He last worked in a warehouse in Edmonton. Given his psoriatic arthritis it is questionable whether he could now manage a physical job. [ 169 ] If I decide that C.M.B. may relocate to Edmonton, I believe that A.Q.G. and S.G. may well lose the benefit of having the very close relationship they have with their father.

They would almost certainly lose the close relationship they have with their step-mothers and half-brothers. [ 170 ] To determine what would be in A.Q.G. and S.G.’s best interests I will now consider the factors set out in section 37(2) of the FLA . In doing so, I will apply the factors to both possible situations. That is a situation in which A.Q.G. and S.G. live in Nanaimo and in which they live in Edmonton. 37(2) (

a) the child’s health and emotional well-being; [ 171 ] In my view, the children’s health is a neutral factor. I do not think A.Q.G. and S.G.’s health would be affected by whether I do or do not allow their relocation to Edmonton. I believe that their mother and father are equally capable of looking after their health. I believe that a relocation to Edmonton would, initially at least, have a negative effect on A.Q.G. and S.G.’s emotional well-being. I think that they would find it very difficult to be separated from their step-mothers and half-brothers. 37 (2) (

b) the child’s views, unless it would be inappropriate to consider them; [ 172 ] In my view, this factor is not applicable. In her report, Ms. Ward includes and seems to consider statements made to her by A.Q.G.. However, I believe that given that A.Q.G.’s young age at the time (not quite four years) it would be inappropriate to consider her expressed views. 37 (2) (

c) the nature and strength of the relationships between the child and significant persons in the child’s life; [ 173 ] It is clear that the most significant people in A.Q.G. and S.G.’s lives are their mother and father. Both family justice counsellors reported that A.Q.G. and S.G. have a close bond to both parents. Ms. Ward believes that A.Q.G. and S.G. have a closer bond with their mother than with their father. [ 174 ] The next most significant people for A.Q.G. and S.G. are their step-mothers C.A. and T.S. and their half-brothers G.G. and P.G..

It is clear that all of them are very good with A.Q.G. and S.G. and that A.Q.G. and S.G. are very attached to them all. [ 175 ] A.Q.G. and S.G. also have quite a close relationship with their aunt N.G., uncle D.G. and cousin D.G. who live on the same property as B.D.G. . [ 176 ] In accordance with an interim court order, C.M.B. and A.Q.G. lived with C.M.B.’s father and step-mother in Edmonton from the beginning of November 2012 until the end of January 2013. S.G. was born in Edmonton on [omitted for publication] and lived with them in Edmonton until they returned to Nanaimo at the end of January 2013.

[ 177 ] I heard little evidence from C.M.B. as to the relationship which either A.Q.G. or S.G. has with their maternal grandfather and step-grandmother. For example I heard no evidence as to how much time A.Q.G. spent with her maternal grandfather or what sort of things, if any, that they did together. [ 178 ] I heard evidence that C.M.B.’s mother has visited C.M.B. and the children in Nanaimo a few times. However, I heard little evidence as to the relationship the children have with her.

I heard no evidence as to what sort of things the children did with her. [ 179 ] I heard evidence from C.M.B. that she has aunts, uncles and siblings living in Edmonton. However, I heard no evidence from her as to the nature of her relationship with any of them.

I also heard no evidence as to what relationship, if any, A.Q.G. or S.G. have with these relatives. [ 180 ] Given the lack of evidence as to what relationship C.M.B. has with her siblings and extended relatives, it is not possible for me to know what relationship, if any, A.Q.G. or S.G. would develop with them if they were to move to Edmonton. [ 181 ] As I stated earlier, I believe that if I permit C.M.B. to relocate A.Q.G. and S.G. to Edmonton it is quite likely that their father would remain where he is.

It is almost certain that their step-mothers and half-brothers would not move to Edmonton. [ 182 ] C.M.B. testified that if she is allowed to relocate with A.Q.G. and S.G. to Edmonton and B.D.G. does not follow she would be willing to bring them to Nanaimo twice per year - once at her cost and once at B.D.G.`s cost.

She said she would also allow B.D.G. to have parenting for up to one week each month in Edmonton. [ 183 ] B.D.G. testified that he could not afford to travel regularly to Edmonton and that he has no family or friends he could stay with there. [ 184 ] C.M.B. testified that if she is able to relocate with A.Q.G. and S.G. to Edmonton and B.D.G. follows, her position is that B.D.G. should have the children every Wednesday overnight and every second weekend. She testified that the same parenting

schedule should apply if she is not permitted to move with children to Edmonton and she decides to remain in Nanaimo. [ 185 ] B.D.G. testified that if it turns out that he and C.M.B. are to live in the same locale A.Q.G. and S.G. should spend equal time living with each parent. [ 186 ] I heard no evidence from either B.D.G. or C.M.B. as to what parenting arrangement they would propose if C.M.B. was to relocate to Edmonton without A.Q.G. and S.G.. [ 187 ] In my view, if A.Q.G. and S.G. were to move to Edmonton the close relationship they have with G.G. and P.G. and with C.A. and T.S. would suffer significantly.

This would be the case whether B.D.G. was to move to Edmonton or not. [ 188 ] They would not be able to afford to all fly to Edmonton on a regular basis or perhaps at all. Even driving to Edmonton regularly would not be possible. I heard evidence that a one way trip from Nanaimo to Edmonton takes approximately 15 hours. That accords with my own understanding. It follows that a return trip to Edmonton by car would take about four days and would likely require paying for two nights of accommodation while on route.

Whether flying or driving to Edmonton they would have pay for accommodation while in Edmonton. [ 189 ] C.M.B. submits that a close connection could be maintained by communication through Skype.

I don’t think so given that A.Q.G. is four years and S.G. is three years of age. [ 190 ] If A.Q.G. and S.G. were to remain in Nanaimo they would be able to maintain their bond with their half-brothers and step- mothers. [ 191 ] When I consider the nature and strength of the relationships between A.Q.G. and S.G. and the significant persons in their lives I believe that this factor favours the children living in Nanaimo rather than in Edmonton. 37 (2) (

d) the history of the child’s care; [ 192 ] For the first 15 months of her life, A.Q.G.’s parents lived together. During this time she had three main care givers - her mother, father and step-mother, C.A.. While she was on maternity leave, C.M.B. played a larger role as care giver to A.Q.G. than did B.D.G. or C.A.. [ 193 ] C.M.B. and A.Q.G. moved out of the family home in August 2012 when A.Q.G. was 15 months old. From that time until June 2013 when A.Q.G. was 25 months old she lived primarily with her mother.

Since the first trial judge’s decision in June 2013 she has lived equal time with her mother and with her father. [ 194 ] S.G. was born on [omitted for publication], approximately three months after his parents separated. He lived primarily with his mother until June 2013 and then began living equal time with his mother and father. [ 195 ] Since June 2013, A.Q.G. and S.G. have spent alternating three day periods with each parent. When living with their mother, she is their sole care giver when she is not working.

When C.M.B. is working during the day from Monday to Friday each week, the children attend a French day care. [ 196 ] When living with their father, A.Q.G. and S.G. have been cared for by their father and by C.A.. Recently T.S. resumed her polyamorous relationship with B.D.G. and C.A.. Since that time she too has been a care giver to A.Q.G. and S.G.. [ 197 ] Since June 2013 when A.Q.G. and S.G. began living with their father for alternating three day periods he has been their sole care

giver when C.A. was working during the day from Monday to Friday each week. [ 198 ] All and all I find that, the history of A.Q.G. and S.G.’s care is a neutral factor in my decision as to whether they should live in Nanaimo or Edmonton. 37 (2) (

e) the child’s need for stability, given the child’s age and stage of development; [ 199 ] A.Q.G., who is not yet four years of age, has lived in several locations with different people. For her first 15 months, when her parents were still together, she lived in the family home. She lived there with her parents, C.A. and G.G. and P.G.. In August 2012 she and her mother moved out of that home and stayed with friends until her mother found a place of their own. A.Q.G. and her mother then lived for three months with her mother’s father and step-mother in Edmonton before and after S.G. was born.

A.Q.G. then lived primarily with her mother, with overnights at her father’s home until June 2013 at which time she began living alternating three day periods with each parent. This has continued to the present. But for the three months she lived in Edmonton, A.Q.G. has lived her entire life in the Nanaimo area. The evidence shows that A.Q.G. has a clear awareness of the geography of the Nanaimo area.

In particular she knows the relative locations of both parent’s residences, her day-care and of G.G. and P.G.’s schools. [ 200 ] S.G. spent just over his first two months living at his maternal grandfather’s residence in Edmonton. For the following five months he lived primarily with his mother in Nanaimo. Since he was seven months old in [omitted for publication], S.G. has, like A.Q.G., spent alternating three day periods living with each parent.

S.G., no doubt, has a general awareness of the geographical areas in which he lives. [ 201 ] I believe that if A.Q.G. was to relocate to Edmonton, it would be a difficult geographical adjustment for her.

Given that he is younger, I believe that relocating to Edmonton would not be as difficult a geographical adjustment for S.G.. [ 202 ] I believe that A.Q.G. and S.G.’s need for stability given their age and stage of development would be best served if they are able to continue to maintain a close bond with all of the most significant people in their lives. [ 203 ] If A.Q.G. and S.G. relocate to Edmonton, they would maintain their close bond with their mother. Whether they could maintain such a bond with their father would depend on whether he also relocated to Edmonton.

A relocation to Edmonton would almost certainly cause A.Q.G. and S.G. to lose the close bond they have with G.G., P.G. and C.A. and, to a lesser extent, with T.S.. [ 204 ] If A.Q.G. and S.G. were to remain living in the Nanaimo area they would be able to maintain a close bond with their father, half- brothers and step-mothers.

Whether they could maintain the close bond they have with their mother would depend on whether she was to remain living in Nanaimo or relocate on her own to Edmonton. [ 205 ] It is somewhat difficult to assess the effect that C.M.B. relocating to Edmonton on her own would have on the children’s relationship with her. This is because neither she nor B.D.G. gave any evidence as to what they what they would propose as to her parenting time in such case. [ 206 ] C.M.B. submits that the stability of B.D.G.’s household is “almost certainly an illusion”. I disagree.

B.D.G. and C.A. have been in a relationship since they were in high school many years ago. On the evidence, their relationship seems to be as strong as ever. They have lived on his sister-in-law’s property since they moved to Vancouver Island in 2010. I heard no evidence to suggest this will not continue. C.A. has been employed full-time since shortly after arriving in Nanaimo. [ 207 ] While T.S. has more recently resumed the polyamorous relationship, she and B.D.G. have always successfully co-parented their son P.G..

There is nothing to indicate that the present relationship will not continue. [ 208 ] All things considered, I find that A.Q.G. and S.G.’s need for stability given their age and stage of development favours them living in Nanaimo rather than in Edmonton. I believe that living in Nanaimo will provide them with greater stability both in terms of geography and in terms of the relationships they have with significant people in their lives. 37 (2) (

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. [ 209 ] In my view this is a neutral factor. As I stated earlier, I find that both C.M.B. and B.D.G. are capable parents. Since June 2013 they have both served well as a primary caregiver to A.Q.G. and S.G.. 37 (2) (

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. [ 210 ] For the purposes of section 37(2) (

g) and (

h) I must consider the factors set out in

section 38. 38 (

a) the nature and seriousness of the family violence;

On all of the evidence I conclude that the family violence which occurred was of a moderate nature. But for the evidence of C.M.B. that she suffered an injured rib in one incident, there is no evidence that any of the violent incidents resulted in any injuries. (

b) how recently the family violence occurred; The evidence is that the most recent incident of family violence occurred in January of 2012 - over four years ago. There is no evidence that either B.D.G. or C.M.B. have acted violently towards each other or anyone else since that time. (

c) the frequency of family violence; The evidence is that there were four incidents of family violence during the five years that B.D.G. and C.M.B. lived together. (

d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive controlling behaviour directed at a family member; The evidence does not support a finding that there was a pattern of coercive or controlling behaviour directed at a family member. (

e) whether the family violence was directed towards the child; None of the family violence which occurred was directed towards any of the four children. (

f) whether the child was exposed to family violence that was not directed towards the child; On the evidence I find that none of the four children were exposed to family violence. Three of the four incidents occurred before A.Q.G. was born. All four incidents occurred before S.G. was born. The fourth incident occurred when A.Q.G. was asleep. (

g) the harm to the child’s physical, psychological and emotional safety, security and well-being as a result of the family violence; On the evidence I find that there has been no harm to any of the four children’s physical, psychological and emotional safety, security and well-being as a result of the family violence. (

h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring; There has been no family violence since before the parties separated. [ 211 ] On all of the evidence I find that neither the actions of B.D.G. nor the actions of C.M.B. indicate that they may be impaired in their ability to care for A.Q.G. or S.G. and meet their needs. [ 212 ] C.M.B. argues that, in this case, it is clear that the family violence was inextricably linked to gender biased roles in the polyamorous relationship and to a related inequality of power in the relationship.

I do not accept this argument. I find that there were no gender biased roles in the polyamorous relationship and that there was no and is no inequality in the relationship between B.D.G. and C.M.B.. [ 213 ] All things considered, I find that family violence is a neutral factor in my consideration as to whether to allow C.M.B. to relocate A.Q.G. and S.G. to Edmonton. 37 (2) (

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; [ 214 ] I am satisfied on the evidence that B.D.G. and C.M.B. have been able and will continue to be able to cooperate reasonably on issues affecting A.Q.G. and S.G.. [ 215 ] I note that both Ms. Bury and Ms. Ward recommend that B.D.G. and C.M.B. have joint guardianship of A.Q.G. and S.G.. Ms.

Ward specifically recommends that they each have all parental responsibilities in respect of A.Q.G. and S.G.. [ 216 ] In my view, an arrangement that would require B.D.G. and C.M.B. to cooperate on issues affecting A.Q.G. and S.G. would not increase any risks to their safety, security, or well-being or to any other family members. 37 (2) (

j) any civil or criminal proceeding relevant to the child’s safety, security or well-being. [ 217 ] This factor is not applicable. Decision [ 218 ] In coming to a decision as to whether it would be in A.Q.G. and S.G.’s best interests to allow their mother to relocate them from Nanaimo to Edmonton I have applied section 46(2) of the FLA . In doing so, I have considered C.M.B.’s reasons for wanting to relocate the children as well as all of the factors set out in section 37(2) of the FLA . I have considered whether B.D.G. would likely relocate to Edmonton.

I have not considered whether C.M.B. would move to Edmonton without the children. [ 219 ] Upon considering C.M.B.’s reasons for wanting to relocate A.Q.G. and S.G. to Edmonton, I find that her application for an order allowing her to do so is made in good faith.

[ 220 ] Nevertheless, having considered all of the evidence and having applied the relevant law, I have decided that it would not be in A.Q.G. or S.G.’s best interests to permit their mother to relocate them from Nanaimo to Edmonton. [ 221 ] Upon considering all of the factors set out in section 37(2) I have concluded that factors (a), (

c) and (

e) favour the children remaining in Nanaimo, that factors (d), (f), (g), (

h) and (

i) are neutral and that factors (

b) and (

j) are not applicable. [ 222 ] Thus, it is the nature and strength of the relationships which A.Q.G. and S.G. have with significant people in their lives as well as their need for stability given their ages and stages of development which have caused me to conclude that they should not be relocated from Nanaimo to Edmonton. [ 223 ] Having decided that C.M.B. may not relocate A.Q.G. and S.G. to Edmonton, I must now consider guardianship, parental responsibilities and parenting arrangements. [ 224 ] B.D.G. and C.M.B. are each guardians of A.Q.G. and S.G..

B.D.G. is a guardian of S.G. even though he and C.M.B. separated before he was born. This is because B.D.G. regularly cares for S.G.. B.D.G. and C.M.B. will each have all of the parenting responsibilities set out in

section 41 of the FLA . [ 225 ] In terms of parenting arrangements there are two possible scenarios. The first is if C.M.B. decides to remain living in Nanaimo. The second is if she decides to move to Edmonton on her own. [ 226 ] As I stated earlier, I believe that A.Q.G. and S.G.’s interests would be best served if their parents are to live in the same locale.

Given that I have decided that C.M.B. may not relocate them to Edmonton, I have no doubt that it would be best for A.Q.G. and S.G. if she decides to remain in Nanaimo. [ 227 ] If C.M.B. chooses to remain living in Nanaimo, A.Q.G. and S.G. are to live alternating seven day periods with each parent. During the weeks when A.Q.G. and S.G. are with their mother, they are to have one or two non-overnight visits with their father.

During the weeks when A.Q.G. and S.G. are with their father they are to have one or two non-overnight visits with their mother. [ 228 ] If C.M.B. decides to move to Edmonton on her own and she and B.D.G. cannot agree on a parenting

schedule they are each at liberty to bring the matter back before me. BY THE COURT ______________________________ The Honourable Judge R. Lamperson