J.P.L. v. C.M.M Date:, 2014 BCPC 302

Citation: J.P.L. v. C.M.M Date: 20141127 2014 BCPC 0302 File No: F8491 Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J.P.L APPLICANT AND: C.M.M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Applicant: C.R. Sinclare

Appearing in person: Ms. M. Place of Hearing: Courtenay , B.C. Dates of Hearing: October 1, November 20, 2014 Date of Judgment: November 27, 2014 Background [ 1 ] Mr. L and Ms. M are the parents of one child, their son, J, now 9 years of age. Mr. L and Ms. M separated in 2011. On March 24, 2011, they consented to an order that they be joint guardians of J and that his primary residence be with Ms. M. [ 2 ] The order contained provision for parenting time for Mr. L. That provision was later varied by agreement. The parenting-time regime which has been in place for some time is as follows: a.

From beginning of September to end of April, Mr. L has parenting time with J from Friday evening to Monday morning every second weekend, and one evening visit mid-week each week. b. From beginning of May to end of August, Mr. L has parenting time with J for 7 days in every second week, on a week-on, week- off basis. That regime was established because Mr. L’s work

schedule required him to work very long hours during the winter months, and very short hours during the summer months. Mr. L’s work

schedule is likely to change. His expectation is that he will work a regular 8-hour day and 5-day week, year-round, for the foreseeable future. However, that future is uncertain because the business in which he is employed is for sale, and it is to be expected that any purchaser will want to make changes to its operations after a sale. [ 3 ] The order also contained the following provision: Neither party will move J’s residence from the Comox Valley without the consent of the other or a court order. [ 4 ] Ms. M and Mr. L have both lived in Courtenay (in the Comox Valley) since they separated. Mr.

L lives in the former matrimonial home. Ms. M has found other housing. [ 5 ] Ms. M proposes to move to Parksville, and that J should move with her. Parksville is not in the Comox Valley, and is about a 45-minute drive from Courtenay. Mr. L opposes the move. [ 6 ] It is obvious that the parenting-time

schedule which has been in place would become very much more difficult if J resides in Parksville. In particular, Mr. L’s mid-week visits would become impractical. Monday mornings would also be very difficult because Mr. L’s employer picks him up at his home at 6:30 on Monday mornings. Ms. M has offered to pick up J from Mr. L’s home on those Monday mornings when J is with Mr. L, and to take him to school in Parksville. However, that would require J to be out of bed before 6:00 on those mornings, and would leave him idle from 7:15 to 9:00 a.m. The alternative of returning J to Ms.

M’s care on Sunday evening would significantly reduce Mr. L’s parenting time. [ 7 ] The case first came on for hearing before me on October 1, 2014. Ms. M told me that, before October 1, 2014, she had made several verbal proposals for a new parenting-time regime to Mr. L, and that, on October 1, 2014, she had made a written proposal on that subject to Mr. Sinclare, counsel for Mr. L. Those proposals were not specific. In general terms, Ms. M proposed that Mr. L should continue to have parenting time with J on the existing

schedule from September to May, that his parenting time in May and June should be on the September to May schedule, and that he should have extra parenting time in July and August to make up for the reduced parenting time in May and June. She said that Mr. L had flatly rejected that proposal, and stated his continued objection to her proposed move to Parksville. I expressed the view that the Family Law Act SBC 2011, c 25 requires the parties to engage in a more constructive dialogue before bringing the matter before the court for decision.

I directed the parties: a. to attend in person at a mediation session which they had previously scheduled for October 2, 2014; b. if the mediation session failed to produce agreement, to enter into a constructive exchange of proposals and counter-proposals, with the objective of fostering and preserving Mr. L’s relationship with J if the relocation to Parksville were permitted. I then adjourned the case to the Judicial Case Manager to

schedule its continuation in November, if necessary. [ 8 ] No agreement was reached at the mediation, and the parties exchanged written proposals. Ms. M’s proposal is that the existing September to May

schedule should be in effect from September to end of June, that J should spend alternating weeks with each parent in July & August, and that Mr. L have a week with J at Christmas and at spring break. The result would be that Mr. L would lose significant time in July and August, and gain some time at Christmas and spring break. In response. Mr. L repeated his opposition to the proposed relocation and suggested a more complex

schedule if I were to permit the relocation. Legal Principles [ 9 ] The governing statutory provision is section 69(4) of the Family Law Act :

(4) If an application is made under this

section and the relocating guardian and another guardian do not have substantially equal

parenting time with the child, (

a) the relocating guardian must satisfy the court that (

i) the proposed relocation is made in good faith, and (ii) the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life, and (

b) on the court being satisfied of the factors referred to in paragraph (a), the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise. [ 10 ] In C.M.B. vs B.D.G. 2014 BCSC 780 ; [2014] BCJ #87; 45 RFL (7 th ) 313, Fleming, J said @ paragraphs 64, 78. … s. 69(4)(a)(

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

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

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

b) that the move is in the best interests of the child. [ 11 ] Section 69(6) of the Family Law Act provides: For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following: (

a) the reasons for the proposed relocation; (

b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities; (

c) whether notice was given under

section 66 …; (

d) any restrictions on relocation contained in a written agreement or an order. [ 12 ] In L.J.R. vs S.W.R. 2013 BCSC 1344 ; [2013] BCJ #1645; 43 RFL (7 th ) 351, Betton, J said @ paragraph 71: Good faith is a subjectively held state of mind. Yet, some of the above characteristics are undoubtedly objective. I find that to the extent a factor listed in s. 69(6) is objective, a positive or negative finding suggests an inference that the relocating guardian either possessed or did not possess the required subjective good fait h. Good Faith [ 13 ] Ms.

M says that she wants to move to Parksville to pursue employment opportunities which are not available to her in Courtenay. She works as a care aide for elderly and disabled adults. She also works as a house-cleaner when opportunity offers. She is establishing a practice as an “energy healer”, a profession which is unregulated in British Columbia, and has no formal qualification or certification process. She says that there are many more opportunities for her as a care-aide and house cleaner in Parksville than in Courtenay, and that most of her clients for energy healing live in Nanaimo.

Nanaimo is about 15 minutes’ drive from Parksville, and about one hour’s drive from Courtenay. Ms. M’s website asserts that energy healing services can be offered at long distance, presumably by telephone, but she says that substantially all of her clients insist that she attend at their homes. [ 14 ] Ms. M is a qualified welder. Shortly after she and Mr. L separated, she gave him notice that she intended to move, with J, to Victoria (about 3 hours’ drive south of Courtenay) to take a welding job at a local shipyard. She says that the job “didn’t work out in the end”, and she did not move.

In November, 2013, she proposed to move to Powell River (about an hour by ferry from Courtenay) to take a job as a care aide for adults who had suffered brain injuries, but that job also fell through. [ 15 ] Ms. M acknowledges that she has not sought employment in the Comox Valley as a care aide or as a welder. She says that she has not sought employment as a welder in the Comox Valley because she would “have to start at the bottom”. [ 16 ] I accept that Ms. M honestly believes that: (

i) her best career option is as an energy healer, and that her best chance of establishing a clientele in that field is in the Parksville-Nanaimo area; and (ii) if J is permitted to move to Parksville, adjustments can be

made to Mr. L’s parenting-time

schedule to sufficiently preserve and foster Mr. L’s relationship with J. So, if good faith is to be adjudicated solely by reference to Ms. M’s subjective state of mind, it might be said that her proposal to relocate is made in good faith. [ 17 ] However, I think it necessary to also consider the question of good faith by reference to the following objective factors: a. This is the third relocation proposal advanced by Ms. M in the past three years. The first two came to naught because her expectations of employment were not fulfilled.

There is reason to fear a similar outcome in relation to this proposed relocation. Energy healers have not yet attained widespread recognition or a following in British Columbia. Ms. M does not have an offer of employment as a care aide in Parksville. She has only a letter of encouragement from a prospective employer. She says that there are more house- cleaning opportunities for her in Parksville than in the Comox Valley, but that remains an untested hypothesis. b. Ms. M acknowledges that she has not explored any employment opportunities in the Comox Valley.

I think that, where the custodial spouse puts forward enhanced employment opportunities as a justification for relocation, she carries the onus of showing why the opportunities in the proposed new location are superior to those in the place where the non-custodial spouse lives. Ms. M has not discharged that onus. c. The proposed location would require me to vary the term of the consent order quoted in paragraph 3, above. That is a factor which section 69(6) of the statute requires me to consider. In March, 2011, Mr. L and Ms. M agreed to an order that J’s residence remain in the Cowichan Valley. I think that Ms.

M carries the onus of demonstrating a change in circumstances, not foreseeable when the agreement was made, which would justify the court in excusing her from complying with the agreement. That onus is not discharged. [ 18 ] For those reasons, I conclude that the relocation is not proposed in good faith. Accordingly, the statutory presumption described by Fleming, J does not apply, and it is necessary to consider J’s best interests without any presumption one way or the other.

J’s Best Interests [ 19 ] Generally speaking, children are well-served when their parents are prospering in careers which the parents find to be satisfying and sufficiently remunerative. Happy parents tend to make for happy home environments, and make good role-models for children. Material comforts matter to children. For that reason, relocation may often be justified by enhanced career opportunities for the custodial parent. In this case, there is little reason to think that Ms. M’s career will be enhanced by relocation. [ 20 ] Mr.

L agrees that J has a close and valuable relationship with his maternal grandparents, who live in Parksville. That relationship has developed and flourished despite the 60 kilometres which lie between Parksville and Courtenay, and will presumably continue to do so whether J relocates or not. [ 21 ] J has attended the same school since kindergarten, and is now in grade 4. He is doing well in school, and has many friends there. He is at an age when existing friends are important, new friends can be difficult to make, and transitions to new schools can be difficult. [ 22 ] No matter how Mr.

L’s parenting time is restructured, it will be more difficult for Mr. L and J to spend time together if J moves to Parksville. In particular, spontaneous unscheduled parenting time, which will become more viable and more important as J gets older, will be very difficult. [ 23 ] In short, I see little prospect of any advantage to J from the proposed relocation, and real risks of disadvantages to him. For that reason, I refuse permission to relocate. November 27, 2014 _____________________________ T. Gouge, PCJ