A.L.S. v. G.J.S. Date:, 2012 BCPC 216

Citation: A.L.S. v. G.J.S. Date: 20120627 2012 BCPC 0216 File No: F89131 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: A.L.S. APPLICANT AND: G.J.S. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W.W. KLINGER Counsel for the Applicant: James MacDonnell

Counsel for the Respondent: William T. Clarke Place of Hearing: Kelowna , B.C. Dates of Hearing: June 4, 5, 6, 7 and 19, 2012 Date of Judgment: June 27, 2012 A corrigendum was released by the Court on June 29, 2012; the corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] The Applicant has applied for an order permitting her to relocate the two children of the marriage, B.L.A.S., born [DOB] and P.M.S., born [DOB], from Kelowna to Fort St. John, B.C. [ 2 ] The parties separated in September of 2010 and entered into a separation agreement later that fall.

The current amended separation agreement marked Exhibit 1, was signed on April 10, 2011. Pursuant to paragraphs 6(

a) and 7 of the separation agreement, the parties agreed that they would share joint custody and guardianship of the children, with the primary residence of the children being with the applicant. Pursuant to paragraph 6(

a) of that agreement, the parties agreed as follows: The husband and wife agree that the wife will not move away from Kelowna, B.C. with either of the children without written consent from the other party or a court order. Neither party shall leave the City of Kelowna, B.C. for the purposes of visiting other people without prior consent of the other parent. In addition to this mobility issue, the parties also have placed the matters of custody and guardianship of their two infant children before the court in this proceeding. In the event that an order ensues permitting the applicant to move to Fort St.

John, the matter of access must also be reviewed. Chronology of Events [ 3 ] The parties were married September 8, 2007 in Campbell River, B.C. They later relocated to Kelowna where they have continued to reside. [ 4 ] The respondent, hereinafter referred to as G., was raised by his mother D.B. in Ontario. G. had little contact with his father, who is now deceased. When he was in high school, he and his mother moved to Kelowna where he completed Grade 11 at Spring Valley Secondary School. He did not complete Grade 12. The applicant, hereinafter referred to as A., grew up on Vancouver Island.

Her mother resides in Nanaimo, however, her father and his wife now reside in Kelowna. [ 5 ] A. and G. met in 2003 when A. was attending nursing school in Kelowna and G. was working at a Kelowna Burger King fast food outlet. A. was then 19 and G. was 22. While both were using marihuana at the time, neither of them had used cocaine nor suffered from a drug dependency. In the early winter of 2003-2004, G. moved from his mother’s residence into an apartment with his friend N. and T.

Unfortunately N. was a user of cocaine and G. then started using cocaine as well. [ 6 ] The chronology of events that transpired after they met differs somewhat as between A. and G. I accept the evidence of A. in respect of the events during this period of time. I am satisfied that those events were impressed clearly in her mind, whereas G. has expressed some uncertainty regarding the order of events. [ 7 ] In the spring of 2004 A. moved in with G. at the N. residence. The evidence is conflicting as to whether she began using cocaine at that time or whether that transpired after a subsequent traumatic event.

A. testified that on May 15, 2004, she attended her sister’s wedding on Vancouver Island and was raped. There was a police investigation, however, the perpetrator was not charged due to the police decision that there was insufficient evidence. As a result of this event, A. took a year off from her nursing studies. She states that G. was unsupportive, that he at the time was partying and using drugs and that she then used cocaine as well. She expressed being unable to cope with what had happened to her.

She sought counselling as a result of the rape, however, stated that the counselling was of little assistance to her and she turned to cocaine use. Both A. and G. testified that during this period of time they both used cocaine heavily. [ 8 ] What next transpired, however, is the subject of disagreement between A. and G. A. stated that in the summer of 2004, she took a job as an escort for the Garden of Eden escort business, which according to the evidence, meant that she operated as a prostitute. She did so for two to three months and stated that she did so with the encouragement of G.

They, together, used the money that she earned to buy cocaine. G., on the other hand, states that he was in vigorous disagreement with this endeavour, that they argued and that A. moved out and went to live with a fellow escort named Tanya for a two month period. G., however, also stated that during that two month period, he would regularly spend the night with A. He claimed he did not live at Tanya’s residence. It is significant, however, that both A. and G. agree that the money earned through prostitution was used by both of them to feed their drug habit.

I find that there was at least a tacit agreement on the part of G. to A.’s escort activities. [ 9 ] In the spring of 2005, A. went to her parents for help and then attended and completed the Cross Roads detoxification program. She did not, however, attend the 28 day treatment program offered by Cross Roads which follows the detoxification program.

She then went back to nursing school in September 2005 and completed her nursing degree in the spring of 2006. She testified that throughout this period, except for a two month period after she had undergone detoxification at Cross Roads, she and G. continued to live together and that G. continued to consume drugs and alcohol. [ 10 ] Meanwhile, in May of 2005, A. discovered that she was pregnant and gave birth to her daughter B. on [DOB]. [ 11 ] There is a conflict in the evidence as to whether following her attendance at Cross Roads, A. continued to consume cocaine.

The evidence of G. is that she would use cocaine from time to time, both on Vancouver Island and in Kelowna. However, A. testified that she used cocaine only once, on the occasion of G.’s 30 th birthday in 2010. I am satisfied that at the present time, A. does not use cocaine and has not for at least two years. G. has used cocaine more recently. [ 12 ] After receiving her nursing degree in the spring of 2006, A. immediately was able to obtain employment at Kelowna General Hospital while G. continued to work in the fast food industry.

At all relevant times, both A. and G. managed to secure and maintain employment. [ 13 ] The evidence establishes that after obtaining her nursing degree, A. did express to G. her desire to move to the Campbell River area to be closer to her family. The evidence is also clear that G. was resistant to that idea in that his mother resided in Kelowna and he was most comfortable in the Kelowna area. There is considerable conflict as between A. and G. as to what transpired in December of 2006 involving their move to the Campbell River area.

I am satisfied that the parties had significant personal differences in respect of that issue and that A. moved to Campbell River just prior to Christmas December of 2006 and started work at the Comox Hospital in early January 2007. G. remained in Kelowna. However in March of 2007, he moved to Campbell River and the parties reconciled and married. They resided in Campbell River and then in Nanaimo before moving back to Kelowna in November 2008. [ 14 ] I find as a fact that G. continued to use cocaine occasionally while they resided on Vancouver Island and after they returned to the City of Kelowna.

I also find as a fact that during the time that they resided on Vancouver Island and after their return to Kelowna, G. spent considerable time in casinos and was involved in gambling. This became a source of conflict between the parties. Financial pressures ensued with G. taking cash advances on his credit cards. In December 2009, matters came to a head. I accept A.’s evidence that she told G. that if he did not stop gambling she would leave him.

In response to that, G. banned himself from entering a casino for six or twelve months. [ 15 ] Meanwhile A. was pregnant with P. and was off work on medical leave for three months spending considerable time in hospital and undergoing three surgeries. P. was born November 30 th , 2009. A. testified that she was diagnosed with fibromyalgia and used marihuana for pain relief for some time until a change in her medication gave her more effective pain relief than she derived from marihuana. [ 16 ] I find as a fact that throughout the parties’ time together, until separation, A. was the main caregiver for the family.

It was her responsibility to pay the bills and she provided most of the child care for the children. G. participated in child care and domestic duties to some degree, however, often he had to be asked to perform those duties. It was A. who had the responsibility to see that things got done. It was A. who attended to finding housing for the family upon their return to Kelowna. This is not, however, to suggest that G. did not love and care for his children. He has developed a good relationship with both children and did display some initiative in playing with them and attending to their needs.

However, on the whole, it fell to A. to bear the principal burden of attending to her family’s needs and G. tended to do what he was asked to do. During their time together, he spent considerable time away from the family, with his friends, socializing. [ 17 ] On August 10, 2010, an event occurred which proved pivotal in their relationship. A. alleges that G. came home very intoxicated and urinated on B.’s head while she was sleeping in her bed. This event allegedly occurred while A. was asleep.

A. testified that in the morning, B. was crying and told her that she was having a dream that it was raining and woke up to find her father urinating on her head. A. testified that B.’s top was wet and there was a puddle of urine by her bed. A. testified that she found loose cards in G.’s pockets which contained a white substance and that in his wallet she found more cocaine.

A. further testified that on a separate occasion she awoke to find G. urinating on their dresser. [ 18 ] On cross-examination, A. testified that she awakened G. right after B. had told her what had transpired and that they had a lengthy argument. She said that he reeked of booze and that by the time G. got up, she had already cleaned the urine up from the area of the bed. [ 19 ] A. denied concocting this account in an effort to justify a separation. She said that as a result of this incident, she considered separation.

She was not cross-examined regarding her evidence of the prior occasion when she had observed G. urinating on the dresser. G. denied both incidents. [ 20 ] I accept A.’s evidence. I find as a fact that G., under the influence of alcohol and drugs, urinated on his daughter’s head and that he had previously, while intoxicated, urinated on their dresser. [ 21 ] Shortly after this incident G. slept in the downstairs area of the house and the parties separated on or about September 14, 2010. This final separation led to a volatile and angry scene at their residence.

A. had discovered condom wrappers in the downstairs area and confronted G. in respect of those. She then threw G.’s clothes and other belongings on to the front lawn from where he collected them and then moved to his mother’s residence. [ 22 ] While there is evidence that during the course of their marriage and during their separation, they have, on occasion, fought verbally, I find that on at least one occasion, A. has slapped G. On this occasion, A. did so after G. had called her a whore during the course of an argument.

In view of their history together, it is understandable that this would have been tantamount to pouring salt on an open wound. The other occasion in which G. alleged that she slapped him is denied by A. and I am unable to make any finding as to whether that occurred or not.

[ 23 ] Notwithstanding the foregoing, I find that these parties have demonstrated some ability to put aside their differences and consider the best interests of their children. They are, at times, able to communicate effectively and appropriately. [ 24 ] A. had maintained an internet correspondence with a friend A.T. and subsequent to her separation from G., they started a dating relationship in October of 2010. That relationship has progressed to the point where they became engaged to be married on December 24, 2011. They plan to marry and live in Fort St. John where Mr.

T. has full time employment as an industrial driver with [removed for posting]. He has a gross annual income of $96,000 and a comprehensive benefits package through that employment. He works for 15 days and then is off work for 6 days. His employment generally enables him to be home every evening. He has testified that his employment opportunities in the Okanagan would be severely limited and, should he obtain employment, it would be at a salary considerably less than his current salary.

I accept that evidence. [ 25 ] All of the evidence satisfies me that he is a stable, reasonable individual, who has developed a good relationship with the children B. and P. G. has testified that he has no concerns at all in respect of Mr. T. [ 26 ] G. meanwhile commenced a relationship in late 2010 with A.D. Ms. D. is employed by [removed for posting] as a commercial insurance broker. Ms. D. owns the residence in which she and G. reside. The evidence satisfies me that she has a good relationship with the children B. and P. Difficulty arose between A. and G. a few months after he met Ms.

D. in that he then wished to move in with her. A. objected on the basis that the relationship between G. and D. was too new. As a result of this, G. did not move in with her until November of 2011. I believe that A.’s concerns were reasonable under all of the circumstances since the children could be harmed by forming attachments to an individual who may not be in their life long term. [ 27 ] Since their separation, the parties have, by and large, been able to communicate effectively in respect of their children. Difficulties have arisen since A. expressed a desire to move to Fort St. John.

G. alleges that A. has made access more difficult. A. denies this. There has been difficulty in respect of scheduling access and specifically changes to access on short notice. A. employs a nanny who is desirous of having some certainty as to the days that she will be required to work. When changes to the access

schedule are made on short notice, this understandably causes problem with A. and her nanny. [ 28 ] I note that in G.’s new relationship with D., they share household expenses equally. G. pays his portion to D. and she attends to payment of the bills. This is consistent with what happened during his cohabitation with A. in that A. assumed the responsibility of paying the family bills. G. has a poor credit rating and would be unable to obtain a mortgage without the assistance of some other guarantor. [ 29 ] A. testified that her employment opportunities in Fort St. John are greater than in Kelowna.

She will have access to additional specialty training which has not been available for her at Kelowna General Hospital. The costs of that training would be paid by the hospital. She has secured a position in Fort St. John which is being held for her until the end of July. She has also determined that there is a French Immersion school in Fort St. John which the children could attend. In addition, Mr.

T. owns a house which is adequate and appropriate for the combined family. [ 30 ] In addition to improved career opportunities, A. has testified that her financial position would be greatly improved with a move to Fort St. John. I find as a fact that she has struggled financially in Kelowna. Due to the child care that she must provide for the children, she has not been able to take the night shift on many occasions. She has been forced to trade those shifts for day or evening shifts and as a result, has not earned the income that she might otherwise earn.

In addition, she has had to work overtime in an attempt to earn additional monies. The result has been she has not been able to afford significant extra curricular activities for her children. The evidence is that those activities for the children have been sparse indeed consisting of one session of swim classes and one session of dance classes. I accept A.’s evidence that a move to Fort St.

John would permit her to place the children in swim lessons, art lessons and other extra curricular activities. [ 31 ] Nurses Natalie Waldon and Melissa O’Leary testified that they work as registered nurses at Kelowna General Hospital and that the staff at that institution tend to be more mature, with the result that younger nurses have difficulty moving up to higher paying and better nursing positions. The gist of their evidence is that it is difficult at the Kelowna General Hospital to advance professionally due to seniority issues and a lack of funding for additional education for nurses.

Both also confirm that they frequently visit with A. at her home. They describe A. as a devoted mother who is attending to the needs of her children. Ms. O’Leary observed that A. “lives paycheque to paycheque” and works overtime to pay for her nanny. [ 32 ] Crystal Hammett has known A. since they were age 14. She and her husband visited with A. and G. both before and after their marriage. She confirms that A. was the main caregiver for the children. She described G. as not being a “hands on” father. She stated that she observed G. to frequently go out socializing with his friends.

She also observed that A. struggles financially in Kelowna. [ 33 ] I find as a fact that A. has been under considerable financial strain. A. alleges that she and G. agreed that he would contribute 30% of the day care costs from the date of separation to November 28, 2011, and that he has failed to pay. When asked in December 2010 to look after the children during a brief two week period when he was not working, he agreed but insisted on deducting $50 per day from his child maintenance payments.

A. has had to cope with those costs as well as the added burden of arranging for nannies, replacing nannies and adjusting the nanny’s

schedule when required, due to late requests for change in access by G. [ 34 ] While the parties agreed in their separation agreement that they would share joint custody and guardianship, the evidence is clear that de facto custody has resided with A. throughout. She has made virtually all decisions both before and after separation regarding the children’s housing, day care, medical and dental care. She selected the school which B. attends and specifically selected a French Immersion school.

Before separation and upon the family’s return to Kelowna, A. attended, prior to G.’s arrival, and found housing for the family. It appears from the evidence that G., if not specifically agreeing to the state of affairs, certainly acquiesced in it. He seemed content to permit A. to take the lead, especially in regards to matters relating to the children. [ 35 ] Following separation, he voiced his disapproval regarding some of A.’s decisions, principally relating to access. However, overall I find that he would agree with A.’s decisions.

By way of example, when A. decided to put B. into French Immersion, G. was initially opposed since an increase in driving to and from school would be required. Subsequently he agreed that the move to that school

was in fact of benefit to B. [36] The two separation agreements entered into between the parties provided that they share joint custody. Only the secondagreement (Exhibit 1) has been tendered in evidence, however, both A. and G. have testified that their first agreement signed in late 2010was in identical terms except for the provisions relating to the matrimonial home. [37] In fact, the parties did not share custody. The children were not in each parent’s care for at least 40% of the time. Since bothparties were employed, day care was arranged for and paid by A.

G. asserts that if one deducted the time the children spent in day care,he had the children with him in excess of 40% of the time. However, it was A. who selected and paid for day care for the children. Itwas to her that the day care provider directed complaints regarding D.B.’s alleged disruptive attendance at the day care facility. I find asa fact that the children did not spend substantially equal time with G.

The children spent the significant majority of time with A. in heractual care and in the day care which she provided for them. [38] G. argues that A. has progressively executed a plan to remove herself from Kelowna in an effort to begin life anew with Mr. T. In this regard, G. denies gambling and consuming alcohol to excess and denies using cocaine in August of 2010. I have considered hisevidence and I do not believe him.

I find that he did in fact use cocaine in August 2010, that he did urinate on a dresser as described byA., and that he did urinate on his daughter’s head while under the influence of alcohol and cocaine. [39] A. had been in contact with Mr. T. prior to this time, however, their dating relationship did not commence until after separation. I do not believe that A. has falsely accused G. of this conduct in a cynical attempt to deprive him of regular contact with his children. Relevant Statutory Provisions FAMILY RELATIONS ACT [RSBC 1996]

CHAPTER 128

Part 2 – Child Custody, Access and Guardianship 24

(1) When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests ofthe child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child’sneeds and circumstances: (

a) The health and emotional well being of the child including any special needs for care and treatment; (

b) If appropriate, the views of the child; (

c) The love, affection and similar ties that exist between the child and other persons; (

d) Education and training for the child; (

e) The capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights andduties adequately.

(1.1) The references to “other persons” in subsection (1) (

c) and to “each person” in subsection (1) (

e) include parents, grandparents,other relatives of the child and persons who are not relatives of the child.

(2) If the guardianship of the estate of a child is at issue, a court must consider as an additional factor the material well being of thechild.

(3) If the conduct of a person does not substantially affect a factor set out in subsection (1) or (2), the court must not consider thatconduct in a proceeding respecting an order under this Part.

(4) If under subsection (3) the conduct of a person may be considered by a court, the court must consider the conduct only to theextent that the conduct affects a factor set out in subsection (1) or (2). The Law [40] In Gordon v. Goertz (1996) (SCC), S.C.J. No. 52, the Supreme Court of Canada set out the principles thatshould guide judges in deciding whether custodial parents should be permitted to move away and change the geographic residence of thechildren. Gordon v. Goertz was a case involving an application to change an existing court order.

The Supreme Court held that inapplications to vary custody and access resulting from relocation of the custodial parent, there is no presumption in favour of thecustodial parent. The parent seeking the change bears the initial burden of demonstrating a material change in circumstances. If thatburden is discharged, the judge must embark on a fresh inquiry to determine the best interests of the child. At paragraphs 49 and 50, thelaw is summarized: 49. The law can be summarized as follows: 1.

The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a materialchange in the circumstances affecting the child. 2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child,having regarding to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views areentitled to great respect. 5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of thecase. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia: (

a) the existing custody arrangement and relationship between the child and the custodial parent; (

b) the existing access arrangement and the relationship between the child and access parent; (

c) the desirability of maximizing contact between the child and both parents; (

d) the views of the child; (

e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs ofthe child; (

f) disruption to the child of a change in custody; (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. 50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new locationmust be weighed against the continuance of full contact with the child’s access parent, its extended family and its community. Theultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? [41] In Nunweiler v. Nunweiler (2000) 2000 BCCA 300 , B.C.J.

No. 935, Saunders J.A. stated at paragraph 28 as follows: The significance of the reasoning in Gordon v. Goertz in an initial determination of custody is I consider threefold. First, the decisiondirects the court to consider the motive for a parent’s relocation only in the context of assessing the parent’s ability to meet the needs ofthe child. This, in my view, is as relevant a direction on an initial custody hearing as on a variation hearing.

Second, the decisionconfirms the significance of the instruction found in section 16(10) to consider the willingness of a parent to facilitate contact but notesthat this consideration is subordinate to the overall consideration of the best interests of the child. Third and more broadly, it approachesthe issue of a relocation from a perspective of respect for a parent’s decision to live and work where he or she chooses, barring animproper motive. [42] In Hejzlar v. Mitchell-Hejslar

(2011) B.C.C.A. 230, Saunders J.A. stated as follows: [24] From the cases, however, certain principles arise. The cases confirm the principle expressed in s. 16(10) of the Divorce Act thatthe court must consider maximizing contact between the child and parent. Yet, that same

section makes it clear that maximizing contactis not an absolute principle, and is only to be pursued within the limits of that which is “consistent with the best interests of the child.” [25] Second, Gordon v. Goertz tells us that, barring an improper motive for the proposed move, there must be an attitude of respectfor a custodial parent.

This means, in part, that the party seeking to move need not provide the move is necessary, although any degreeof necessity, such as for income-earning reasons, may bear upon the best interests of the child. [26] Third, the authorities generally do not favour the status quo as a ‘default position’. In Nunweiler this court observed that such anapproach “reinserts into custody discussions a presumption which is contrary to the instructions in Gordon v. Goertz to assess each caseindividually” and is “contrary to the observations of this court in Robinson v.

Filyk (1996), (BC CA), 84 B.C.A.C. 290that presumptions are inappropriate in custody cases and detract from the individual justice to which every child is entitled...”. [27] Last, this court, and other courts in Canada, have discouraged reliance by a judge on any expression by the parent who is seekingto move, that he or she will not move if the child cannot accompany him or her. S.S.L. was a case in which weight was given by the trialcourt to the mother’s evidence she would not move without the child. On appeal, this court referred with favour to Spencer v. Spencer,2005 ABCA 262, and Bourgeois v.

Plante, 2009 PECA 12, leave ref’d [2009] S.C.C.A. No. 357. In Spencer v. Spencer the Court said,at para. 18: [18] In conducting this inquiry, it is problematic to rely on representations by the custodial parent that he or she will not move withoutthe children should the application to relocate be denied. The effect of such an inquiry places the parent seeking to relocate in a classicdouble bind.

If the answer is that the parent is not willing to remain behind with the children, he or she raises the prospect of beingregarded as self interested and discounting the children’s best interests in favour of his or her own. On the other hand, advising the courtthat the parent is prepared to forgo the requested move if unsuccessful, undermines the submissions in favour of relocation by suggestingthat such a move is not critical to the parent’s well-being or to that of the children.

If a judge mistakenly relies on a parent’s willingnessto stay behind “for the sake of the children,” the status quo becomes an attractive option for a judge to favour because it avoids thedifficult decision the application presents.

[ 43 ] At paragraph 49, Saunders J.A. notes the difficulty in balancing the objective of maximizing contact with the father and extended family in situations where the primary caregiver has entered into a new domestic relationship. She stated as follows: As often noted, the principle of maximum contact with a parent yields to the overall best interests of the child. [ 44 ] In S.S.L. v. J.W.W.

(2010) B.C.C.A. 55, Huddart J.A. dealt with: the error in mobility cases to prefer what is seen as the status quo if, in response to the other parent’s proposed parenting plans, the parent seeking to move offers what some judges have called the third option of not moving, if moving means leaving the children behind. The status quo is allowed to supersede the balancing of other relevant factors. That is not the correct approach.

Huddart J.A. goes on to state at paragraph 13: Opting to maintain what is perceived as the status quo, without more, avoids the difficult decision of having to prefer one parent’s plan to the others, without acknowledging that the status quo is ephemeral in any family. [ 45 ] I have also considered Karpondinis v. Kantos

(2006) B.C.C.A. 272. The facts were that the mother sought permission to relocate her son aged 3 to Houston, Texas from Richmond, B.C. The mother was the child’s primary caregiver. She had a good employment related reason for requesting the move to Houston. On the other hand, the child’s father and other members of his family were in the Vancouver area and there was significant value in the child having regular contact with them in order to bond with them and establish lasting and meaningful relationships with them.

The trial judge balanced those interests and concluded that the competing interests weighed in favour of the child remaining in the Lower Mainland. The Court of Appeal, noting that there was no demonstrable error in fact or law, stated that decisions of judges at first instance in this class of case are to be given considerable deference and dismissed the appeal. [ 46 ] In One v. One [2000] B.C.S.C. 1584, Burnyeat, J. at para. 24, listed twelve factors which have been reviewed in deciding what is in the best interests of the children.

Those factors are: 1) Parenting capabilities of and children’s relationship with parents and new partners 2) Employment security and prospects of each spouse and, where appropriate, their partner 3) Access to and support of extended family 4) Difficulty of exercising proposed access and quality of proposed access if move is allowed 5) Effect upon children’s academic situation 6) Psychological/emotional well-being of the children 7) Disruption of children’s existing social and community support and routines. 8) Desirability of the proposed new family unit for children 9) Relative parenting capabilities of either parent and respective ability to discharge their parenting responsibilities 10) Children’s relationship with both parents 11) Separation of siblings 12) Retraining/educational opportunities for the moving parent [ 47 ] Finally I have also considered the decision of MacAuley J. in S.M.M. v.

J.P.H.

(2011) B.C.S.C. 1084. This decision contains a helpful

summary of the law relating to mobility issues. In addition, at paragraph 187, MacAuley J. affirms that the ability of the parents to communicate effectively and decide matters relating to the children without detrimentally affecting the child is an important consideration. He goes on to state that in general joint custody should be reserved for those cases where parents make such a commitment. Application of legal principles to this case [ 48 ] While this is an application for an initial custody order, the parties had, by agreement, settled the matters of custody and

guardianship. Out of abundance and caution, I will consider whether there has been a material change of circumstances. In view of A.’s intended move to Fort St.

John and the consequent impact that this will have on the children’s life and associations with extended family as well as the likely reduction of the respondent’s contact with the children, it appears to me that a material change in circumstances has been established. [ 49 ] I must then consider what is in the best interests of the children, having regard to all of the relevant circumstances relating to the children’s needs and the ability of the respective parents to satisfy them.

I am required to balance the benefits derived from the children’s continued care in the custody of A. against the desirability of maintaining generous contact between the children and their father and extended family. [ 50 ] It is clear that the children are closely bonded to A. While the children love their father and enjoy their access visits with him, I believe that the best interests of the children require that the relationship with their psychological parent ( Gordon v. Goertz , supra, paragraph 121 ), the mother, be preserved. [ 51 ] This is not a joint parenting situation as in S.S.L. v. J.W.W., supra.

There, the parties agreed that joint guardianship and joint custody should continue. It fell into the second category of circumstances described by Huddart, J.A. at para. 22 in that case. [ 52 ] This trial concerns two young children whose primary residence has been with A. throughout. In addition, A. has been the de facto custodial parent, notwithstanding the provisions of Exhibit 1, and she now seeks an order granting her sole custody. A.

Application of Family Relations Act Section 24(3) and (4) [ 53 ] With respect to Sections 24(3) and (4) of the Family Relations Act , the mother’s former use of cocaine, her work as a prostitute and her subsequent use of marihuana does not substantially affect the factors set out in those sections. I am impressed by the resilience of the mother in overcoming her drug habit and completing her nursing degree given her circumstances. She has moved on from that lifestyle to become a hard working member of society and an excellent mother.

In this development she has not always had the support of her spouse and in fact has had to deal with his lifestyle issues. It is not to the credit of G. to bring to mind her previous lifestyle, in which he benefited, by calling her a whore during an argument following their separation. B. The Applicant’s Motive for Relocating [ 54 ] As stated by Saunders, J.A. in Nunweiler , supra, I must consider A.’s motive for relocating in the context of assessing A.’s ability to meet the needs of the children. In considering that motive, I accept her evidence that her financial wellbeing will be enhanced by the move.

She will have an opportunity for paid professional training with the expectation of future increased earning power. Her living arrangements with her fiancé are such that the financial pressures existent in Kelowna will be alleviated. In addition her work

schedule will be from 7:00 a.m. to 3:00 p.m., Monday through Friday. She will not have to seek overtime work and thus will be able to spend more time with the children. Her expenses will decrease, since she and Mr. Triple will be sharing household expenses. This will permit her to place the children in ongoing activities such as swim lessons, dance and reading clubs. Those opportunities for the children are severely limited in Kelowna due to financial pressures. I am satisfied that A.’s ability to meet the needs of the children is significantly enhanced should she relocate to Fort St. John.

This, of course, directly affects the children’s welfare. [ 55 ] I must also consider the need to respect A.’s decision to live and work where she chooses barring any improper motive. In that regard, counsel for G. suggests that A. does have an improper motive, namely, to do and say whatever is necessary to remove herself and the children from Kelowna. To this end, counsel submits that she has fabricated the urination incident and he also points to the restriction A. placed on D.B.’s contact with the children and the restricted access he now must endure.

As indicated above, I find that the urination incident did occur. I also accept A.’s evidence that D.B.’s contact with the children was curtailed as a result of her concern, perhaps misplaced, for the wellbeing of the children while in D.B.’s care. In addition, I accept A.’s evidence that D.B.’s interaction with the day care staff was problematic and not beneficial. It could have resulted in the removal of the children from that day care had A. not acted. I reject the suggestion of improper motive advanced on G.’s behalf.

Other factors in determining whether the move is in the children’s best interests per Burnyeat, J. in One v. One , supra

a) The parenting capabilities of and the children’s relationship with the parents and their new partners [ 56 ] There is no question concerning the parenting capability of A. She has been their prime care giver since birth and has done everything necessary to ensure their well being. G. also has some parenting ability but his history has been to rely on others to do most of the child rearing. Both parents have a good relationship with the children. The evidence satisfies me that both A.’s fiancé and G.’s partner A. have a good relationship with the children.

b) Employment, security and prospect of the parents and their partners [ 57 ] As I have stated above, A. has improved employment and advancement prospects in Fort St. John whereas in Kelowna, her chances for advancement are limited. In addition, her fiancé Mr. T., has a well paying position in Fort St. John which he is unlikely to duplicate in Kelowna. G. has full time employment in Kelowna as does Ms. D. On the whole, I find that A.’s prospects of employment and financial security would be significantly enhanced by the move.

c) Access to and support of extended family [ 58 ] A.’s father and wife and A.’s half sister M. live in Kelowna. B. has developed a close relationship with M. D.B., the children’s grandmother, resides in Kelowna as well. The children do have friends in this area. A.’s grandfather and an assortment of other relatives reside in Fort St. John. The evidence is to the effect that those relationships are not very close at least until this point. On the whole, the children’s ties to extended family are closer in Kelowna.

d) The difficulty of exercising the proposed access and the quality of the proposed access if the move is allowed

[ 59 ] There is no doubt that the distance between Kelowna and Fort St. John will pose a considerable challenge to G. and A. should A. and the children move. Driving time is lengthy and air fare is expensive. Both frequency and duration of access would be affected. [ 60 ] I accept A.’s evidence that she would be prepared to facilitate contact between the children and G. She has agreed to meet G. half way should they decide to drive the children to an access visit. In addition she has agreed to participate in the cost of airfare should that option be utilized.

e) The effect of the move on the children’s academic situation [ 61 ] Due to the age of both children, this factor is not significant in this case.

f) The psychological and emotional well being of the children [ 62 ] The children have always been in the care of their mother. While they also have a good relationship with G., it is clear from the evidence that they rely on A. for not only their basic needs but also for guidance and emotional support. In my view, their psychological and emotional well being would be compromised if they were removed from their mother’s care.

g) The disruption of the children’s existing social and community support and routine [ 63 ] I find that a move to Fort St. John would have little impact on the children in this regard due to their age and the economic reality of their life in Kelowna. Outside of day care and B.’s school attendance, there is little evidence that the children have formed significant attachments to social and community supports.

h) The desirability of the proposed new family unit for the children [ 64 ] The evidence leads me to the conclusion that given the good relationship that Mr. T. has with the children and the new family unit’s improved financial condition should they relocate to Fort St. John, that this new family unit would be beneficial for the children.

i) The relative parenting capabilities of either parent and their respective ability to discharge parenting responsibilities [ 65 ] The mother A. has demonstrated that she is a good responsible parent. She has assumed leadership of the family unit and there is no suggestion that she does not properly parent the children. G., on the other hand, left the bulk of parenting to A. prior to separation. Since separation, he has been an interested parent and has exercised access when employment permits.

It is clear, however, that should the children reside with him or remain in his care for significant periods of time, he would rely on his mother or A.D. to provide care for them. That is not a criticism of him, rather an assessment of his probable future conduct based on his history.

j) The children’s relationship with both parents [ 66 ] The evidence satisfies me that the children have a good relationship with both parents. I am sure that they love both of their parents equally. [ 67 ] Separation of siblings is not a factor in these proceedings. The factor of retraining and educational opportunities for the moving parent has already been dealt with in (

b) above. Decision [ 68 ] Keeping in mind that the focus of this trial is the best interests of the children, not the interests and rights of the parents, on balance, I am persuaded that the proposed move is in the best interests of the children and accordingly order that A. be permitted to move the children to Fort St. John. I am also satisfied that A. should be granted sole custody of the children, however, that the parties should share joint guardianship. There will be reasonable and generous access to G. Should the parties fail to agree to a

schedule for access visits, application can be made to have access specified. The travel costs associated with access are to be shared equally by A. and G. [ 69 ] I also order that the children are not to be relocated from Fort St. John without the prior written consent of G. or by order of a court of competent jurisdiction. _____________________________ The Honourable Judge W.W. Klinger CORRIGENDUM – Released June 29, 2012 [1] In Written Reasons for Judgment dated June 27, 2012, an error was found in paragraph 38. [2] Therefore paragraph 38 shall read as follows:

[38] G. argues that A. has progressively executed a plan to remove herself from Kelowna in an effort to begin life anew with Mr. T. In this regard, G. denies gambling and consuming alcohol to excess and denies using cocaine in August of 2010 . I have considered his evidence and I do not believe him. I find that he did in fact use cocaine in August 2010 , that he did urinate on a dresser as described by A., and that he did urinate on his daughter’s head while under the influence of alcohol and cocaine.