L.H.T. v. K.M.T. Date:, 2011 BCPC 446

Citation: L.H.T. v. K.M.T. Date: 20111229 2011 BCPC 0446 File No: F7513 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: L.H.T. APPLICANT AND: K.M.T. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BAIRD ELLAN Appearing in person: J. Desilets

Appearing in person: K.M.T. Place of Hearing: North Vancouver , B.C. Date of Hearing: October 3; November 8, 21 and 22; December 28, 2011 Date of Judgment: December 29, 2011 [ 1 ] The parties, Ms. L.T. and Mr. K.T. are the parents of R.F.T. born [DOB], and B.P.T., born [DOB]. By a prior Court order, Ms. T. has sole custody and the parties have joint guardianship of the children. [ 2 ] Mr. T. now seeks joint custody; essentially, a shared parenting scheme. Ms. T. applies for permission to relocate with the children to Thornhill, Ontario.

Court Background [ 3 ] The first application on the file was made on November 12, 2008, when the Ministry of Housing and Social Development brought an application on behalf of Ms. T. for child and spousal support. An interim consent order was made in that respect on December 2, 2008, setting child support at a figure about $500.00 below the Guideline amount for Mr. T.’s income level at the time, to reflect his having Mr. T. on responsibility for family debts. Spousal support was set at $500.00. The amounts were set for review and final determination in November 2009. That review did not take place.

A proliferation of applications and notices of motions ensued and the parties had frequent appearances before the Court. [ 4 ] On March 18, 2009, Mr. T. filed an application for joint custody and guardianship and specified access to the children. He also wanted counselling time with R. Ms. T. opposed that on the basis that the children feared him and it would not be in their best interests. She applied for full custody and guardianship. [ 5 ] An interim order was made on March 31, 2009, that the children’s primary residence would be with Ms. T. and that Mr.

T. would have reasonable and generous access. [ 6 ] There were some problems with his obtaining access, and after a case conference before me on May 22, 2009, I made an order providing Mr. T. specified access two afternoons per week and alternating weekends. The order also required Ms. T. to provide information about the children’s issues or school. Custody and guardianship were not dealt with at that time, and the parties were adjourned for another case conference. [ 7 ] On August 5, 2009, Mr. T. applied for ‘full’ custody and for primary residence of the children. He accused Ms.

T. of parental alienation and fabricating an assault allegation. Ms. T. replied alleging a history of violence between the parties, citing Mr. T.’s recent arrest for assaulting her, and sought supervised access. [ 8 ] On September 16, 2009, Mr. T. filed a Notice of Motion applying for sole custody, primary residence, a parental capacity report, a

section 15 report, and production of the police records relating to the assault allegation, among other things. On September 18, 2009, the parties were back before me for a case conference. I made an order for production of the police records, and required that Ms. T. provide Mr. T. with the name of R.’s counsellor. The matter was set over to be fixed for trial. [ 9 ] The parties made an appearance in September 2009, but the matter was set for another case conference, in January 2010. There were several further appearance dates when the matter was either adjourned generally or struck from the list.

On the case conference date, January 7, 2010, a two hour trial was set for August 3, 2010. There is no record of the parties having appeared at the case conference, and for some reason, no

section 15 report was ordered. [ 10 ] The parties came before Judge Diebolt for trial on August 3, 2010. After a hearing, he ordered that Ms. T. have sole custody of the children and that the parties have joint guardianship on what is known as the Joyce model, with Ms. T. having the final decision making power. Judge Diebolt included a term that neither party was permitted to apply to vary that order without a

section 15 report having been prepared. [ 11 ] In November 2010, Mr. T. applied to have a

section 15 report prepared. The application came before me in December, and I ordered a

section 15 report, directing at Mr. T.’s request that the family justice counsellor consider parental alienation. At Ms. T.’s request, I also ordered that Mr. T. remove certain information he had posted on the internet about Ms. T.’s assault complaint. The matter was set for a two and one-half hour trial in August of 2011. [ 12 ] In February 2011, I amended the December order to request a full

section 15 custody and access report and seized myself of future applications related to the hearing, in light of the fact that the August hearing date was to be before me. [ 13 ] At the same time as the custody and access proceedings were before the Court, Mr. T. had also applied to vary spousal and child support. That application was heard in June 2011. Mr. T.’s support amounts were varied at that time. He had asked for a reduction to reflect a period when he was not employed.

While spousal support was reduced by about half, child support was increased to reflect the Guideline amount for his income level, so the net result was an increase. Mr. T. has incurred arrears since that order was made. [ 14 ] The

section 15 report was completed in June 2011. On June 26, 2011, Mr. T. filed an application seeking joint custody with a shared parenting arrangement and that he have the final decision-making power under the guardianship order.

[15] The parties attended court two days later and the Court ordered that the trial be revised to a three day hearing, and that therebe a case conference for trial preparation. Judge Rodgers presided at the case conference and made orders for trial preparation and casemanagement and set additional hearing dates. Two days after that, Ms. T. filed a Notice of Motion seeking permission to move toOntario. [16] On August 20, 2011, Ms. T. sought and received leave to amend her Reply to include a request for permission to relocate toOntario. Procedural Context [17] The first issue to be sorted out is whether Mr.

T. is required to show a change of circumstances in order to apply to have JudgeDiebolt’s order of August 3, 2010, varied. [18] Mr. Desilets as counsel for Ms. T. takes the position that there must be a change in circumstances. He refers to the wellknown case of Gordon v. Goertz, (SCC), [1996] 2 SCR 27. At paragraph 10 of that decision, the Supreme Court ofCanada makes the point that a variation application should not be treated as a right of appeal from a prior order.

There must be a materialchange, one that alters the parties’ ability to care for the children in a fundamental way, and one that was unanticipated at the time theorder was made. Mr. Desilets says that there has been no such change since the order was made in 2010. [19] While I agree with Mr. Desilets’ point that Mr. T. appears to be challenging Judge Diebolt’s order and seeking, in essence, toappeal it, I differ with his characterization of the nature of the order itself, for several reasons. [20] Firstly, the order must be considered in light of Mr. T.’s prior application for a

section 15 report. While it specifies that it is afinal order, the hearing was set down without a

section 15 report being ordered, and Judge Diebolt specifically contemplated that theremay be an application to vary, but not without a

section 15 order being prepared. In my view the way the order was worded disposed ofthe need for Mr. T. to show a change in circumstances. [21] Secondly, the first trial consisted only of a half day hearing. In essence, Judge Diebolt made an interim order based onminimal evidence, without a professional assessment of the veracity of the parties’ allegations about each other, and invited a re-hearingif a report were ultimately prepared. [22] Additionally, Mr. T. sought and received leave to obtain a

section 15 report, at which time the court effectively gave himleave to revisit the issue of custody and access; otherwise, the report would have been of no use. [23] In light of that history of events, in my view it is open to this Court to consider the issues of custody and access afresh. Theywere thoroughly canvassed in these comprehensive proceedings; more thoroughly than in the August 2010 proceedings, and with theassistance of the

section 15 report, and this Court is better equipped to consider the long term best interests of the children. [24] Because of the view I take of the nature of these proceedings, some of the background leading up to the first trial is relevant tothe determination of the issues raised at this time. Background [25] The parties were married August 1, 1998. They moved to British Columbia from Ontario in 2006, and separated in 2008. With Mr. T.’s agreement, Ms. T. and the girls moved back to Ontario shortly after their separation. Both parents believed at that timethat Ms.

T. had better resources and family support in Ontario, and that it would be in the children’s best interests to move. [26] However, within two months Ms. T. returned to North Vancouver with the children. She did not tell Mr. T. she was comingback. She had her luggage delivered to the residence of a Mr. D. F., in the same townhouse complex where she and Mr. T. hadpreviously resided. She also did not tell D. F. that she had not told Mr. T. she was coming back, and when he testified, D. F. faulted Mr.T. for not permitting Ms. T. and the girls to move back in with him. [27] In fact, Ms.

T. returned to North Vancouver in 2008 without notice to Mr. T. and without any concrete plans about where shewould live or how she would support herself. [28] Ms. T. moved in with D. F. although the accommodation was inadequate for the four of them. She had hoped that Mr. T.would move out and let her and the girls live in the townhouse. Mr. T. points out however that he could not have done that, as thecomplex is subsidized and Ms.

T. had not been approved as a renter. [29] From that point forward the relations between the parties, which had not been good during the marriage, deteriorated to thepoint of constant acrimony and antagonism. Ms. T., and perhaps both, enlisted some of the complex residents as allies, including D. F.,and their feud became somewhat public. [30] In due course Ms. T. applied for and was approved for a unit in the complex and she and the girls took up residence across thestreet from Mr. T. The advantage of this was that the girls were able to travel back and forth between their parents’ houses and Mr.

T.’stime with them was thereby facilitated. The disadvantage was that the parties’ extreme acrimony remained visible to the children. [31] Although liberal access was ordered early on, it was some time before the issue of access was settled. The girls expressed

reluctance, or Ms. T. perceived that they were reluctant, to visit their father. Mr. T. says Ms. T. created this situation by villainizing him. As an example, he points to an incident that occurred in the complex when Ms. T. came to Mr. T.’s unit to confront him about something, and he ordered her to leave. She complained to the police. They investigated and declined to proceed with a charge. This incident was said to have occurred in July 2009. [ 32 ] Ms. T.’s version of this incident is that it was consistent with Mr. T.’s longstanding problem with anger. D. F. gave an example of Mr.

T.’s displaying anger in front of the children once, when Ms. T. and Mr. T. were still together, by kicking the girls’ sand buckets into D. F.’s yard when they got in his way while he was doing yard work. Ms. T. did not give any examples of Mr. T. having lost his temper, and Mr. T.’s girlfriend, P.S., said that in her more recent experience Mr. T. had never lost his temper despite a certain amount of provocation from Ms. T. [ 33 ] In August 2009, Mr. T. received an order that a copy of the police report pertaining to Ms. T.’s complaint about him be provided to him.

He had not received it from the police because no charges were ever laid. He posted the video recording of Ms. T.’s statement to the police on various sites on the internet, describing it as a “woman faking an assault for sympathy”, calling it worse than “faking cancer” and abusive to children. I ordered Mr. T. to remove all postings of this video, but as of the last day of trial, I was advised by Mr. Desilets that it remained on the internet. There was evidence to support a conclusion that at least R. had seen it. [ 34 ] Ms. T. had herself posted an email in which Mr.

T. called her a child abuser at the front door of her own residence, again in a position where the children would be able to see it. These incidents just serve as examples of the parties’ animosity toward each other and their unfortunate inability to avoid displaying it in the children’s presence. [ 35 ] After the arrest of Mr. T., which took place following the order for specified access, R. developed a greater reluctance to see her father. Mr. T. says that at this point, he did not see the girls for a time and while B. resumed access before long, he did not see R. for a significant period. [ 36 ] In 2010, Ms.

T. rented a room for a time to D.A., although the residence she lived in at the time had only two bedrooms. She and Mr. T. had known Mr. A. for several years. Mr. A. testified that he moved in to help her out financially, and paid $400.00 rent. He expressed concerns about Ms. T.’s stability. He cited incidents of her tearing down a wall in the middle of the night and kicking the wall in her bedroom on another occasion, both at times when the children were present in the residence. He said she drank to excess frequently, and smoked, outside the residence, although while the children resided at Mr.

F.’s residence, it was inside. [ 37 ] While Mr. A. lived at Ms. T.’s house, R. slept in the basement and B. shared the bedroom with her mother. He heard Ms. T. making negative comments about Mr. T. in front of children on a few occasions. Ms. T. asked Mr. A. and other mutual acquaintances not to talk to Mr. T., and became upset with him when he associated with Mr. T. When Mr. A. told her he was moving in with Mr. T. after he got custody of his son, Ms. T. got very upset, and when he returned to the residence Mr. A. found the door broken off its hinges. [ 38 ] Mr.

T. testified that his access was curtailed on at least two occasions following a Court event, which he attributes to Ms. T. retaliating or conveying to the children her displeasure with the outcome. He described an incident after the

Section 15 report was produced when R. called him crying and saying that he was preventing them from going to Ontario. Before that she had come over a couple of times for dinner and things had improved. [ 39 ] Mr. T. also noted that before the

section 15 report was provided he had received an order for summer access, but he did not receive his access. It seemed Ms. T. and the girls had made plans for every day when he was supposed to have them. During this time frame, R. told him she didn’t want to see him any more. Current Circumstances [ 40 ] Both parties remain resident in the subsidized townhouse complex. As Mr. T. puts it, it is a privilege to be able to receive subsidized rent and be able to live in North Vancouver, with access to good schools and community programs. [ 41 ] Mr.

T. is employed at Sky Train in security, and currently works nights from 10:00 p.m. to 6:00 a.m., Sunday to Wednesday. He considered this a potential career position although he had been there just six months as of October. He intends to move within the company to another position that will enable him to work days. [ 42 ] The parties continued with the original specified access

schedule at the time of trial. The girls did activities with both parents on their weekends, perhaps more so with Mr. T. They had access to Ms. T. when at their father’s house, and Ms. T. believed that they preferred her to remain accessible so they could come and go from her house. [ 43 ] Ms. T. said she remained concerned about Mr. T.’s temper issues, but she did not testify about any recent or concrete complaints of anger or abuse on Mr. T.’s part. I conclude that she has developed the idea that he is abusive and has passed that on to the children.

They have been registered in a program entitled, “Children Who Witness Abuse.” One can only hope they have not been told the name of the program, which presumes a purpose that may not exist. [ 44 ] Ms. T. expressed concerns about Mr. T.’s alcohol consumption, and he was cross-examined on receipts for alcohol purchases. Some of these were made on days he was with the children. None of these raised any concerns, and Ms. Smith’s evidence dispelled any notion that there was an alcohol problem on Mr. T.’s part. Similar concerns were expressed by Mr. T. about Ms.

T. spending money on alcohol, in particular at times when Mr. T. was finding it difficult to keep up with his child support payments and she would have had less (or no) discretionary income.

Section 15 Report [ 45 ] The report was prepared by a family justice counselor, Nancy Jean Mussallem, who interviewed the parties and observed them with the children. She was cross-examined, at Ms. T.’s behest, at trial. [ 46 ] Ms. Mussallem conducted her investigation in the spring of 2011. She assessed the parties as having high conflict, and an inability to communicate. She substantiated the involvement of other tenants in the complex, and numerous calls to police. She assessed the children as having witnessed and heard the longstanding conflict between their parents. Ms.

Mussallem gave an overview of some community resources that the children had accessed in connection with their parents’ conflict. [ 47 ] Ms. Mussallem received negative comments from R. about going to see her father, when R. was interviewed at her mother’s house. Both children were fond of Mr. T.’s girlfriend, P.S., who testified at trial, but that relationship has since ended. They also both appeared fond of their extended family members, all of whom live in Ontario. [ 48 ] Ms. Mussallem noted that Ms. T. received social assistance benefits and did not have plans to return to work.

In cross- examination she said she did not have a note of this portion of their conversation but believed the comment had come from Ms. T. She recalled no mention of part time or odd jobs that Ms. T. did. She acknowledged that Mr. T. had complained about Ms. T. not working and watching TV all day. Ms. Mussallem did not recall Ms. T. mentioning an intention to move back to Ontario, or that she was thinking of it. [ 49 ] Ms. Mussallem did not canvass issues raised by Ms. T. regarding Mr. T.’s temper and alcohol use. Ms. Mussallem said she believed those were past complaints.

Her notes reflected that both parties complained about violence on the part of the other, but there were no substantiated incidents. [ 50 ] Ms. Mussallem noted differences in the way the children behaved and talked about Mr. T. when they were with their mother, than when they were with him and Ms. S. R.’s reluctance to see Mr. T. was substantiated by her remarks to Ms. Mussallem made in Ms. T.’s presence, but Ms. Mussallem observed a marked difference in R.’s attitude when with Mr. T. She concluded that the children’s behaviour while in Mr.

T.’s presence was “inconsistent with their stated views.” [ 51 ] She dismissed most of Ms. T.’s concerns about safety or abuse and concluded that a shared parenting arrangement with a week on, week off, would be in the children’s best interests. Mr. T.’s Application for Shared Parenting [ 52 ] In relation to the merits of Mr. T.’s application for shared parenting, Mr. Desilets on behalf of Ms. T. submits it is not in the children’s best interests. He says Mr. T.’s employment is such that he cannot care for the children from Sunday to Wednesday and he does not have a plan for child care.

He also points out that the acrimony between the parties is such that a shared parenting

schedule would not be feasible, relying on the case of Haigh v . Spence , 2010 BCSC. [ 53 ] The factors set out on the case law start with the ability of the parents to communicate. Mr. Desilets says that is an obvious problem, here. The next is the ability to make decisions and follow through with them. Here, on my view of the evidence, that factor would favour Mr. T. The third factor is the amount of time the children would spend with each parent. Here, if Ms. T. remained in British Columbia, her time with the children could be tailored around Mr. T.’s schedule, as she is not encumbered by employment.

The fourth is the geographic distance; of course not a factor as long as they remain where they are. [ 54 ] The fifth factor is past parental behaviours that could impair the children’s relationship with the other parent, and the sixth is whether an order could be made to address or eliminate differences in parental attitudes that could detrimentally affect the children. In Haigh v . Spence , Myers J. says there must be mutual deference between the parties to create a harmonious environment. [ 55 ] Mr. Desilets says that is lacking in this case. He points to the behaviour of Mr.

T. in speaking through or to the children about access issues, his threats to withdraw child support if he does not get access, and his continued defiance of the court’s order such that R. has now seen her mother’s police complaint on the internet. I would in turn point to Ms. T.’s own behaviour in resisting access on several occasions, insisting on written communications between the parties that she then permits her children to intercept and does not read herself, and efforts to marginalize Mr.

T. among the residents at the townhouse complex. [ 56 ] The parties here essentially concede that there is a toxic relationship between them, which impairs their ability to cooperate in parenting. It must be noted however that the relationship has been greatly aggravated by the existence of the Court proceedings themselves, and may be somewhat resolved by a final order. [ 57 ] Mr. Desilets says an order has been tried and it was not able to reduce the conflict between the parties. He says Ms.

T. concedes that she has made mistakes, for instance posting an ill-advised email on her door and not following Court orders by permitting the children to refuse access. He says she has gone for counseling and attempted to deal with her issues. [ 58 ] It is difficult for the Court to get a real picture of how things are at the parties’ respective households. However, with the views expressed in the

section 15 report, and having heard the evidence of both parties and their witnesses, I am able to conclude, firstly, that it is likely the children are being encouraged by Ms. T. not to exercise their access to their father, or at least, they are not being encouraged to do so.

[ 59 ] Ms. T.’s reaction to other parties who favour Mr. T. is telling. She displays an apparent lack of maturity in response to fairly minor slights or conflicts, with the apparent motive of demonizing Mr. T. and alienating him from other people around her. This must of necessity translate into a perception on the part of the children that favouring their father, or aligning with him, would be viewed with disfavour by Ms. T. [ 60 ] The evidence tends to support a view that Ms. T. overstated the events of the incident in July 2009, and made an exaggerated complaint to the police, resulting in Mr. T.’s arrest.

While the arrest did not take place in the presence of the children, they certainly came to know of it, and that cannot have been in their best interests. [ 61 ] Mr. T.’s reaction of posting the video statement, although clearly also not in their best interests, must be viewed in the context of having to deal with the children’s reaction to their mother’s having permitted them to believe their father was abusive.

His failure to remove it, however, reflects badly on his ability to comply with Court orders and his respect for the Court process, to which he has turned for relief from alienation from his children. [ 62 ] Parental alienation is a strong term, and the

section 15 report does not go as far as establishing it. However, on balance, in my view, the evidence in this case leans toward a finding that Ms. T.’s behaviour has created problems with access, and may well continue to do so. It is not to the point where the Court should remove her as a custodial parent on that basis, but she should be forewarned that continued obstruction of Mr.

T.’s relationship with his daughters could have that result. [ 63 ] Since my assessment of the fifth factor set out in Haigh , the issue of past behaviour that could impair the children’s relationship with the other parent, operates against Ms.

T., it should not in my view be a factor on which she could rely to resist a shared parenting arrangement, if it would otherwise be in the children’s best interests. [ 64 ] There is nothing in the evidence apart from the parties’ behaviour toward each other that causes me to conclude that either is a better or worse parent, or that either poses any safety or psychological risk to the children. [ 65 ] If this matter had come to Court uncomplicated by Ms. T.’s proposed move to Ontario, I would have been of the view that Mr.

T.’s application for joint custody and guardianship with final decision making power should be granted. I would have imposed a shared parenting

schedule of some type that could accommodate Mr. T.’s work schedule, with a view to working toward a week on week off schedule, once he had acquired a day shift. I would have made orders directing the parties’ behaviour that would hopefully have assisted to reduce or eliminate conflict, in future. [ 66 ] It becomes necessary, however, to consider the merits of the mobility application, and whether it is such that Ms. T.’s current order for sole custody should be maintained. Proposed Move to Ontario [ 67 ] Ms.

T. testified that she has been offered a position in Ontario as an administrative assistant for a friend of her mother’s, at a salary of $40,000. She submits that for the children’s continued emotional health, it is in their best interests for them to be in Ontario. She has arranged counselling for them there. The

section 15 report supports a conclusion that they need continued counselling because of the high conflict relationship of their parents. Mr. T. notes that Ms. T. has not followed up counselling in North Vancouver. [ 68 ] Ms. T. also takes the position that the parties should be far apart in light of their toxic relationship. She proposes sole custody to herself, continuation of the joint guardianship order, with specified access to Mr. T. in North Vancouver and in Ontario, where both parties have family.

She offers to forego spousal support in light of her imminent employment, and to reduce child support to assist with the cost of access transportation. [ 69 ] The offer of employment was confirmed by a letter from the proposed employer, and by Ms. T.’s mother, M.K., who testified. This employer is a family friend, and Ms. T. will act as a personal assistant, working from his home. He is apparently holding a job for her, which he offered to her in the summer, it seems as something of a favour to her mother. Ms.

T. has not worked in the field of administrative assistance for several years, and she did not recall having sent the prospective employer a resume, but she seemed unconcerned about that. [ 70 ] Mr. T. poses the question why Ms. T. could not find similar employment in British Columbia, but it seems clear this employer is making the offer because of his relationship with the family. [ 71 ] It is proposed that Ms. K. will be the children’s caregiver after school while Ms. T. is at work. Mr.

T. challenged her ability to do this, as she had physical problems when the children were younger that hindered her from being physically involved with them. She said the children were older now and she would need to be less physically involved. [ 72 ] Mr. T. perceives he will not have access if Ms. T. moves to Ontario. He will not be able to get enough time off from his job to have meaningful access. The cost will be prohibitive, and he fully expects that Ms. T. will be calling to tell him the children do not want to come to British Columbia.

He submits that she he does not respect or encourage his access while they are 50 feet away, let alone several thousand miles. He believes he would not see them at all, or ever again. [ 73 ] He is also concerned about the children’s welfare. He notes that last time Ms. T. went to Ontario she only lasted for two months. The children will be removed from their school and support network in British Columbia, and may not gain any greater stability with the move. He is sceptical about whether Ms. T.’s new job will work out.

He expects she will be re-applying for spousal support before long and the move will have been for naught. He says there is no benefit to the children in moving back to Ontario, and no job opportunities for him, there, in light of the comparable state of the economy.

[ 74 ] Mr. T. was asked what plan he would have if Ms. T. made the move and he was granted sole custody. He said he would find other employment if his current job interferes with his ability to care for them. He would rely on other parents in the community. [ 75 ] I am troubled by the sequence of events surrounding the move proposal. Ms. T. appears not to have discussed the move with Mr. T. He says he learned of it through correspondence with Mr. Desilets, only after the

section 15 report came out. Ms. T. testified that she had been talking of moving back for some time, but it is clear to me that she did not raise it with Ms. Mussallem or at any time with the Court before filing her Notice of Motion in August 2011. It also appears that the children may have learned of the plan to move before Mr. T. did. [ 76 ] However, the timing of Ms. T.’s Notice of Motion would appear to coincide with the receipt of the offer from the prospective employer, and it may have been only at that point that it became clear a move might be feasible. [ 77 ] I also share Mr.

T.’s concerns about his ability to have access to his children if they move with their mother to Ontario. However, that is not determinative of the issues I need to resolve. As pointed out by Mr. Desilets in his able submissions, the Court must consider the factors set out in

section 24 of the Family Relations Act , as elaborated upon by the case law. The governing case is Gordon v . Goertz . [ 78 ] A question arises as to how those factors should be applied in a shared parenting scenario, as the Supreme Court considers them from the perspective of a custodial and a non-custodial parenting situation. Some instruction may be gained from the proposed Family Law Act , although it has not yet been proclaimed.

It distinguishes between equal and non-equal parenting situations, and requires that a relocating guardian establish that: the move is being made in good faith, the party has proposed reasonable and workable arrangements to accommodate the other party’s contact with the child; and the relocation is in the best interests of the child.

The Act specifically prohibits a court from considering whether the party would relocate without the children, but requires the Court to consider the reasons for the relocation and whether it will enhance the children’s quality of life and that of the relocating party. [ 79 ] Relating the evidence here to the first two Gordon v . Goertz factors as best they apply here, I would assess the bond between the children and these parents as stronger with their mother than with Mr. T.

Of course he will argue that is not of his doing; nonetheless it must be considered as it is at this time in looking at the children’s wellbeing and best interests. [ 80 ] The third factor, maximizing contact between the children and their parents, is always at stake in a mobility application. One parent will have to be relegated to a few weeks of the year. I see it as an irrelevant consideration in an application of this kind. In Falvai v . Falvai, 2008 BCCA 503 , the Court of Appeal noted the practical realities of mobility cases, and the difficulty of maximizing contact with the non-custodial parent.

The Court observes that society has become highly mobile, and admonishes against indenturing a custodial parent to a particular community, in this day and age. [ 81 ] The views of the children, the fourth factor, as best they can be gleaned in this case, are that they would seem to favour a move, but as Mr. T. points out, they associate Ontario and their grandparents with vacations and fun time. Their views in relation to their relationship with their father would also seem to be favourable according to Ms. Mussallem, though the suggestion is that was more the case when Ms.

S. was present in the residence. [ 82 ] The next factor, the reasons for moving, are relevant here. Ms. T. says she will be better able to provide financially for the children if permitted to move. In addition, they will be closer to and better able to develop relationships with their grandparents and extended family, and to explore their Jewish heritage. Mr. T. observes that Ms. T. will be working and less able to visit extended family, having not done so while here, and not working. He also says the Jewish heritage has not been important in the past. Nonetheless these are factors favouring a move. [ 83 ] Ms.

T.’s reasons for moving are for the purpose of employment, and family support. Although Mr. T. believes she intends to thwart his access to the children, it does appear that her motives are genuine. She has been offered a position, despite her limited qualifications, by a family friend, and it is likely a better position than she would be able to acquire here, without any contacts. While Mr. T. submits she should and could find equivalent employment here, he tends to overrate her employability, and to berate her unduly for her lack of financial contribution, in my respectful view.

I cannot find there is any improper motive on Ms. T.’s part for wanting to move. [ 84 ] As for the factor of disruption, there will not be a significant amount other than that caused by the timing of this decision, given the imminence of the school term. The children have been to Ontario before, they know their grandparents, and it is quite different from a move to a new, unfamiliar location. [ 85 ] It must be borne in mind as well that Mr. T. himself is from Ontario, and his parents and extended family remain there. I note that as recently as 2008, he believed the children would benefit from a move to Ontario.

He says at that time Ms. T. was depressed, and he could not work and parent them at the same time. But in reality, he has not grown closer to the children since then, despite his own best efforts, and it is not clear even now that he could easily work and parent them at the same time, if their mother were absent. [ 86 ] Falvai talks of having the Court assess competing parenting plans and the negative impact of removing children from the primary caregiver. Mr. Desilets points to the plan described by Ms. T. and her mother.

There is accommodation, a school has been arranged, the mother can do care giving if need be despite some slight health concerns, the children are old enough now that she can manage. There are counselling services available through the Jewish community centre nearby. [ 87 ] Ms. T. suggests that the children can return to British Colombia on their own. Mr. T. may travel to Ontario to see them at any time. Ms. T. will not require spousal support if she moves, and Mr. T. may use the money he saves on that toward air fare to visit Ontario or to bring the children here. [ 88 ] Ms.

T. proposes one of two options, to deal with the cost of access: a flat reduction in child support, 50% of the table amount, to be used toward the costs of access. The other alternative would be for them to share it as a

section 7 expense, which Mr. Desilets says is more in line with the Guidelines, but less likely to be acceptable to the parties.

[ 89 ] Ms. T. suggests the children visit Mr. T. for two separate two-week periods in the summer, that on even years, he have them here for spring break; and that on odd years, she have them there. She suggests they share Christmas break, alternating Christmas day each year. [ 90 ] As for Mr. T.’s parenting plan, while Mr. Desilets submits he does not really have one, Mr. T. questions why he should need to, when he did not, in the past. However, the Court is required to consider the matter from the assumption that Ms. T. may well move without the children, and whether Mr.

T. could manage full time care of the children in his current situation. [ 91 ] Mr. Desilets also submits that Mr. T.’s evidence is contradictory as to whether he himself would be able to follow the family out to Ontario. At one point he suggested he could change jobs if granted sole custody, but on the other hand he says this job he has had for now eight months is a potential career for him. [ 92 ] Mr. T. has not had a lot of time or the assistance of counsel to consider how best to present his position. However, he has now been afforded a full hearing on the issues. If Ms.

T. were not moving I would have forced her to accommodate a shared parenting schedule, and attempted to find a harmonious solution to the problem of her reluctance to foster the children’s relationship with Mr. T. The reality is, however, things are simply not working for her here, for one reason or another; perhaps primarily because she is in such close proximity to Mr. T. Clearly a move favours her own wellbeing, and in turn, that of the children. At one point, Mr. T. was able to see it that way. Perhaps the answer to her abrupt return is as simple as her missing Mr.

T. and their family life together, and not as dysfunctional as Mr. T. saw it at the time. [ 93 ] An added benefit to the move will be to remove the children from the toxic environment to which both parents have contributed, in my view. The children will not continue to be stigmatized by their warring parents in the complex where they currently reside. Although the children have good resources and opportunities here, and Mr. T. questions whether those are equally available in Ontario, the evidence of Ms. Kravitz assists to establish that they are. [ 94 ] While Mr.

T. states he is unwilling and unable to move back to Ontario, he may reconsider and he may find there are opportunities for him out there. He is the more employable of the two, as he has pointed out, and it is clearly in the children’s best interests to have both of their parents working, and also to see them both as much as they can. [ 95 ] After much consideration and with some reluctance, I have concluded that Ms. T. will receive the Court’s permission to relocate with the children to Ontario. ORDER 1.

The Order of Judge Diebolt dated August 3, 2010, pertaining to custody and guardianship of the children R.F.T., born March 30, 2001, and B.P.T., born January 10, 2003, will not be varied. Ms. T. will continue to have sole custody and the parties will have joint guardianship on the terms set out in that Order [which I suggest be appended for ease of reference]. 2. Mr. T. will see the children, at his option, for two separate non-consecutive two week periods each summer, in British Columbia or, at his option, in Ontario. Mr. T. will provide his requested weeks to Ms. T. each year by May 31. 3. Mr.

T. will see the children, at his option, for every other spring break commencing in 2012. If the children have two weeks off, the parties will split the breaks every year. 4. Mr. T. will see the children, at his option, for one-half of the Christmas break, to include Christmas Day in alternating years. 5. The parties will work together to make travel arrangements for the children. 6. Mr. T. will have reasonable and generous access at any time in Ontario, upon two weeks’ notice to Ms. T. 7. Mr. T. will have reasonable and generous telephone access to the children. 8. Ms.

T. will not permit the children to refuse to visit Mr. T. or speak with him on the telephone. 9. The parties will refrain from speaking negatively about each other in the children’s presence, or with family members. 10. Ms. T. will encourage the children to think kindly of their father and not speak to them about events between her and Mr. T. that did not involve them. 11. Mr. T.’s obligation to pay spousal support will cease effective January 1, 2012, and Ms. T. may not re-apply for spousal support without documentary proof of efforts to upgrade her skills and find employment. 12. Mr.

T. will pay child support in the amount of $370.00, one-half of the current Guideline amount, commencing January 1, 2012, in recognition of his share of the cost of exercising access to the children. This amount will be adjusted as of July 1 st each year to one-half of the applicable Guideline amount. 13. Parties will exchange tax returns and notices of assessment by May 31 of each year. 14. Extraordinary expenses will be shared proportionately to income. For the year 2012 until July 1, 2012, extraordinary expenses will be shared equally (50-50). 15. Ms.

T. will take immediate steps to obtain a computer following her move. The parties will communicate exclusively by

email except for the purpose of permitting Mr. T.’s telephone access. 16. Ms. T. will commence a weekly journal documenting the activities and events involving the children and will send it weekly to Mr. T. electronically. 17. Ms. T. will discuss the children’s extracurricular activities and any other matters involving a claim for potential extraordinary expenses with Mr. T. before committing the children to any such activities or matters, except in the case of emergencies, in which case, Ms. T. will advise Mr. T. immediately afterward. 18. Mr. T.’s payments toward arrears are suspended until Feb 29, 2012. Mr.

T. must file a new application to reduce or cancel his arrears by that date. Ms. T. consents to accept service through her counsel and may attend any court appearances on that application by telephone. 19. Ms. T. will take immediate steps to have this Order registered in the appropriate court in Ontario. 20. Both parties consent to the jurisdiction of the Ontario courts to enforce the terms of this Order. _______________________________ The Honourable Judge C. Baird Ellan Provincial Court of British Columbia