N.L.S. v. C.R.T., 2017 BCPC 125 (CanLII)
Citation: N.L.S. v. C.R.T. Date: 20170425
Registry: Nanaimo
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
IN THE MATTER OF
THE FAMILY LAW ACT, S.B.C. 2011 c. 25
BETWEEN:
N.L.S.
APPLICANT
AND:
C.R.T.
RESPONDENT
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE GOUGE
Counsel for the Applicant: J. Recalma
Counsel for the Respondent: J. Marrie
Place of Hearing: Nanaimo, B.C.
Dates of Hearing: September 14, 15, October 3, 4, 2016, January 18, 2017
Date of Judgment: April 25, 2017
The Issue
[1] Ms. S. proposes that her daughter, D., move from Nanaimo to Vancouver to reside with Ms. S. D.’s father, Mr. T., opposes the move, and proposes that D. should reside with him in Nanaimo.
Background
[2] D. is the only child of Ms. S. and Mr. T. She will have her seventh birthday next month.
[3] Ms. S. and Mr. T. met in Nanaimo in 2007. After Ms. S. graduated high school in 2008, they travelled a bit before settling in Nanaimo at the end of 2008. They cohabited in Nanaimo from December, 2008 until August, 2012.
[4] In August, 2014, when D. was four, Ms. S. and Mr. T. agreed to a parenting-time schedule under which D. would spend alternate weeks with each parent. That schedule has continued in effect, with occasional variations to accommodate holidays and special events, until now.
[5] Until April, 2016, D. lived in Nanaimo and Ladysmith. The two communities are about 40 km apart.
[6] Ms. S. is an insurance broker. From December, 2014 to April, 2016, she worked at a brokerage in Ladysmith. In April, 2016, she was offered, and accepted, employment with a brokerage in Vancouver. Depending on the route chosen and traffic volumes, the journey by car and ferry from Nanaimo to Ms. S.’ new home in Vancouver takes two to three hours. From April to September, 2016, D. travelled weekly between her parents’ homes, spending alternate weeks in Nanaimo and Vancouver. That ceased to be viable at the end of August, when D. was enrolled in school in Nanaimo. Since the beginning of September, Ms. S. has exercised her parenting time at her mother’s home in Nanaimo. Because of Ms. S.’ employment obligations in Vancouver, she has been unable to fully utilize her parenting time, and D. has spent part of that time with Ms. S.’ extended family in Nanaimo.
[7] Mr. T.’s extended family live in the Nanaimo area. Ms. S. has extended family in Nanaimo and Vancouver. D. has strong relationships with extended family in both cities.
[8] Mr. T.’s first language is French, although he is fluent in English. For that reason, he arranged for D. to be enrolled in [omitted for publication], which is a francophone school in Nanaimo. D. attended kindergarten there in 2015 – 2016, and now attends grade 1 there. Mr. T.’s strong preference is that she remain in that school. He explains that French-immersion schools teach the French language, but not the French culture, and that he wishes D. to be raised in that culture. Ms. S. is not fluent in French. She would prefer that D. be enrolled in a French-immersion school, because, she says, D. is more comfortable in English than in French.
[9] On October 19, 2015, this Court ordered the preparation of a report under the authority of section 211 of the Family Law Act SBC 2011, c 25. Unfortunately, that report was not completed until September 13, 2016. Mr. Grootendorst, the author of the report, states:
D. is loved and well cared for in both homes and both parents recognize the importance of the other in D.’s life. … It is clear that D. has a close and loving relationship with her mother; however, she has lived primarily in the Nanaimo area all of her life and has a close and loving relationship with her father and both sets of grandparents there.
For those reasons, Mr. Grootendorst recommends that D. reside at her father’s home in Nanaimo.
[10] I asked Ms. S. if she agrees with the assertion that D. is loved and well cared-for in Mr. T.’s home. She replied:
I guess it would depend on the day and the situation with Mr. T., in the past history that we’ve provided. But for the most part, yes I think he loves her and is providing her a well-cared home.
The “past history” to which Ms. S. referred is discussed under the heading “Evidence of Family Violence”, below.
Evidence of Family Violence
[11] In her written submissions, Ms. Recalma identified family violence as a central issue in this case. For that reason, a detailed review of the evidence relevant to that issue is necessary.
[12] Mr. T. responded badly to his separation from Ms. S. He sent many text messages to Ms. S. They are vulgar and abusive. Some of them contained statements in which Mr. T. expressed an intention to commit suicide. During her evidence in chief, in relation to those statements, Ms. S. said:
I took him seriously the first time. The other times I always had a thought in my mind and fear of it in my mind, but at that point because it was such a frequent thing I was just used to him saying that and all the other stuff in there. This was just a regular occurrence. And that’s why I got the no-contact order made.
[13] During her evidence in chief, Ms. S. described a number of troubling incidents. One of them occurred on July 13, 2013. Ms. S. described it in the following terms:
I was over at [Mr. T.’s] house helping him with his English, and he had taken my cell phone. Supposedly, he must have taken my cell phone out of my purse or something, because I had to go back to get it, and when I went back to get it he had taken my phone from me and hidden it in his yard. I couldn’t find it. He wouldn’t help me look for my phone, he just wanted to talk. And I took my car, pulled it forward to use the headlights because it was dark at this point. D. was in the car. I was looking for it, and I could just hear her crying and I couldn’t find it, so I just went in the car and sat. She was really upset, asking why Daddy wouldn’t let us leave. I redirected it to where we were playing a scavenger hunt. And then I got out again to try and find it and a text came through and the light shone, so I found it …. I grabbed it, and then I went to go to run to get back in my car. That’s when he noticed I was about to get into my car. He pushed me out of the way. I ended up landing into a truck and hitting my head; got a bruise, not a big deal. I -- he had then stole my keys and then took off running down the street in his socks. And then I got in the car, began to console D. She was crying again, “Why won’t Daddy let us leave?” Then I was saying we were playing hide and go seek now and it was fun. And she laughed and we were calm at that point. And then he came back, calmed down and trying to talk, and then she asked “Daddy, can we go home?” And he broke down and gave us our keys and we went home.
[14] In the summer of 2013, Ms. S. attended a music festival. Mr. T. sent her a number of text messages, which made it apparent that Mr. T. was on the festival grounds and covertly observing Ms. S.’ activities.
[15] In late October, 2013, Mr. T. sent Ms. S. a number of text messages, expressing frustration and referring to self-harm. On the evening of November 2, 2013, Mr. T. attended at Ms. S.’ apartment building and rang her doorbell. She declined to admit him. He spent most of the night outside her apartment building, periodically ringing her doorbell and sending her a number of odd text messages. In one of them, he said that he had a handful of pills, and that he intended to swallow them in an attempt to commit suicide. Ms. S. called her mother for help. Her mother called the police, who arrested Mr. T. under the authority of the Mental Health Act and took him to hospital for assessment. The psychiatrist on duty concluded that Mr. T. was indulging in attention-seeking behaviour, and did not represent a threat to himself or anyone else. He was discharged from the hospital within an hour or so, without treatment. The police file was closed. Ms. S. consulted the Ministry of Child & Family Development about the incident. The Ministry referred Mr. T. to a counselling program, which he completed in early 2014.
[16] One day in the summer of 2014, Ms. S. and Mr. T. arranged to meet at Ms. S.’ home so that Mr. T. could take D. overnight while Ms. S. attended a friend’s birthday party. Mr. T. appeared to be irritated when he arrived, and wanted to talk. Ms. S. put D. in Mr. T.’s car and walked away from the conversation toward her friend’s car. Mr. T. pursued her in his vehicle in a dangerous manner. Ms. S. got into her friend’s car and they drove to the friend’s home, pursued by Mr. T. An argument ensued. Ms. S. described the denouement in the following terms:
So I went and talked to him again to maintain and talk and see. He calmed down. We kind of reasoned and he seemed fine and then he apologized, acknowledged his errors on his actions and we agreed that he was fine and he took D. and left.
[17] On May 31, 2015, there was a confrontation between Ms. S. and Mr. T. at Mr. T.’s home, when Ms. S. attended there to drop off D. for a visit. After D. entered the house with Mr. T., Ms. S. became concerned about Mr. T.’s demeanour. She returned to the door with the intention of taking D. away. She tried to push open the front door of the house. Mr. T. pushed back. Mr. T. bit Ms. S. on the arm. She says that he hit her on the elbow with his face. He says that she elbowed him in the face. Ms. S.’ mother intervened and took D. to the car. During her evidence in chief Ms. S. described her interaction with D. as they drove away:
I tried to console D., but she pushed my head away and said, “You should have just left me there with Dad like all the other times. He would have been fine. He would have been fine.” And she didn’t want to talk to me. And --- but she calmed down by time we got to the house.
The following exchange ensued between Ms. Recalma and Ms. S.:
Q. You’ve said that that D. told you “Why didn’t you leave me there like all the other times”. Were there ever difficult transitions with Mr. T.?
A. Lots.
Q. Were they physical?
A. No.
Q. What were they? How were they difficult?
A. Other than the two police reports, as I stated, the two times he pushed me. But before, no, there was no physical violence at all. There was just a lot of arguing, name calling, he just wanted to talk. Just wanted to talk.
[18] Ms. S. described one other incident for which no date is given in the evidence. On that occasion, Mr. T. followed Ms. S., D. and Ms. S.’ mother to a shopping mall. When Ms. S. parked her vehicle, Mr. T. stood in front of it, preventing the vehicle from leaving, until Ms. S.’ mother shouted to attract the attention of passers-by. He then stepped aside and they were able to leave.
My Interview With D.
[19] At an early stage of the trial, I suggested to counsel that it would be useful for me to meet with D. Mr. T. supported that idea. Ms. S. opposed it. I decided that an interview would be useful. In her written closing submissions, Ms. Recalma says:
Ms. S. opposed this interview while Mr. T. agreed with the interview. Respectfully, this evidence is not properly before the court. I note that my friend and I were not present to observe this evidence. Although Your Honour provided a brief synopsis of Your Honour’s interview with D., I respectfully submit that it is not possible to make submissions on this evidence.
[20] Parental consent is not a precondition to an interview of the kind which I conducted: Peskett v. Peskett, [1979] BCJ No. 1432; 1979 CanLII 549 (BC SC), 14 RFL (2d) 134; L.E.G. v. A.G., [2002] BCSC 1455; 2002 BCSC 1455 (CanLII), [2002] BCJ No. 2319. In the latter case, Justice Martinson said at paragraph 4 “… the court's discretion to interview a child, even in the absence of consent, is based on its parens patriae jurisdiction (an inherent power to act in the best interests of children), and its statutory duty to act in the best interests of children …”. The parens patriae jurisdiction is an element of the inherent jurisdiction of the superior courts, which this court does not possess: E.G.S. v. Spallumcheen Band Council, [1988] BCJ No. 3268; British Columbia (Director of Child, Family & Community Services) v. L.W.C. 2016 BCPC 311; [2016] BCJ No. 2133. However, jurisdiction to conduct such interviews is, in my opinion, conferred by:
a. Section 202 of the Family Law Act, which empowers this court, “… having regard to the best interests of a child …” to “… give any … direction that it considers appropriate concerning receipt of a child’s evidence …”;
b. Rule 20(2) of the Provincial Court (Family) Rules BC Reg 417/98, which empowers a judge to “… permit any other means of proof instead of that required by these rules …”;
c. Rule 20(8) of the Provincial Court (Family) Rules, which empowers a judge to “… give directions on any procedural matter that is not provided for in these rules or an enactment …”.
In Jespersen v. Jespersen, [1985] BCJ No. 2440; 1985 CanLII 838 (BC CA), 48 RFL (2d) 193, Justice Macfarlane said at paragraphs 31 - 32:
… those private interviews are often undertaken not for the purpose of obtaining statements of preference from the child, but to obtain a better idea of the nature of the child. It is helpful to a judge considering the difficult question arising in custody cases to know the child as well as he can. It is customary that neither counsel nor the parents attend such an interview and I do not think that is wrong. More latitude must be given in custody matters when the best interests of the child are in issue than in other proceedings where the issues are more provocative as between the parties.
I should say that in my experience it was usual to have a court reporter present during such private interviews so a transcript of what was said in the judge's Chambers could be made available to the Court of Appeal if that was necessary. I am not sure whether that practice is a good one or not because I agree with Mr. Justice Lambert that it is important in these cases to get an impression of the child in a relaxed atmosphere and without other people present. What the practice ought to be in such cases if the issue is raised about it will have to await the decision in another case after full argument.
See also More v. Primeau, 1977 CanLII 2637 (ON CA), [1977] OJ No. 913; 2 RFL (2d) 254 at paragraph 22. Relying on those authorities, I decline to give effect to Ms. Recalma’s objection. As will be seen, my interview with D. provided me with an impression of her which assists me in the adjudication of the issue in this case.
[21] Accompanied by the clerk of the court, I had lunch with D. at a local restaurant on October 4, 2016. Ms. S. brought D. to the courthouse to meet me. D. exhibited age-appropriate anxiety on parting from her mother, but all signs of anxiety disappeared as soon as Ms. S. was out of sight. Thereafter, D. presented as a happy, talkative child who rapidly engaged in conversation with the clerk and me. She exhibited no signs of psychological trauma and was quite fearless. I asked her a few questions about school, home life and extended family, but her answers were monosyllabic. I suspect that is because she was aware of the conflict between her parents, and did not wish to discuss it. I thought it best to refrain from pressing those enquiries, and the conversation passed to other subjects, mostly about films from the Disney studio. In the end, I was left with two specific impressions and one general impression.
a. English is clearly D.’s first language, although her French comprehension is very good.
b. D. regards Nanaimo as home. Vancouver is a place which she visits, and enjoys, but it is not home to her.
c. D. is a healthy, happy child who feels safe in her world. From this, I infer that she has been well parented.
I provided counsel and the parties with a brief oral report of the interview, in open court, immediately after the interview. The report was substantially in the terms outlined in this paragraph.
[22] I note that my observation of D.’s personality and sense of security is congruent with Ms. S.’ assessment; i.e.
She’s a very happy, loving [child] and very infectious laughter. She’s a very smart girl, very keen.
and with that of Kelly Shaw, a child protection worker who conducted an investigation arising from Mr. T.’s suicide threats; i.e.
… she was lovely. Very sweet, talkative, very articulate, actually for a three … [year-old child] …
In her closing submissions on behalf of Ms. S., Ms. Recalma said:
D. is meeting all of her milestones in terms of age and stage of development, if not surpassing them in some areas.
The Statute
[23] The governing provisions are sections 69(4) – 69(7) of the Family Law Act SBC 2011, c 25:
(4) If an application is made under this section and the relocating guardian and another guardian do not have substantially equal parenting time with the child,
(a) the relocating guardian must satisfy the court that
(i) the proposed relocation is made in good faith, and
(ii) the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life, and
(b) on the court being satisfied of the factors referred to in paragraph (a), the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise.
(5) If an application is made under this section and the relocating guardian and another guardian have substantially equal parenting time with the child, the relocating guardian must satisfy the court
(a) of the factors described in subsection (4) (a), and
(b) that the relocation is in the best interests of the child.
(6) 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 [notice of relocation];
(d) any restrictions on relocation contained in a written agreement or an order.
(7) In determining whether to make an order under this section, the court must not consider whether a guardian would still relocate if the child's relocation were not permitted.
Because each parent has had substantially equal parenting time over the past two years, subsection 5 places on Ms. S. the onus of proving that the proposed relocation is in D.’s best interest.
[24] Section 69 of the Family Law Act is found in Part 4 of the statute. Part 4 also includes sections 37 and 38, which provide (underlining added):
37(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.
(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following:
(a) the child's health and emotional well-being;
(b) the child's views, unless it would be inappropriate to consider them;
(c) the nature and strength of the relationships between the child and significant persons in the child's life;
(d) the history of the child's care;
(e) the child's need for stability, given the child's age and stage of development;
(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;
(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;
(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.
(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.
(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.
38. For the purposes of section 37 (2) (g) and (h) [best interests of child], a court must consider all of the following:
(a) the nature and seriousness of the family violence;
(b) how recently the family violence occurred;
(c) the frequency of the family violence;
(d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member;
(e) whether the family violence was directed toward the child;
(f) whether the child was exposed to family violence that was not directed toward the child
(g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence
(h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring
(i) any other relevant matter.
Applying the Statute
[25] I am satisfied that Ms. S.’ application is made in good faith. Her career opportunities are significantly better in Vancouver than they are on Vancouver Island. She believes sincerely that D. would be happier and more successful in her care.
[26] I am not satisfied that Ms. S. has proposed reasonable and workable arrangements to preserve D.’s relationships with Mr. T. and with D.’s extended family in Nanaimo. The inevitable consequence of Ms. S.’ move to Vancouver is that D.’s relationship with one of her parents will change fundamentally. One parent will become a weekend and holiday parent, and the other will become the sole primary caregiver. Indeed, that has already happened. Because, since September, 2016, Ms. S. has not been able to fully avail herself of her parenting time under the existing arrangement, her role in D.’s life has been significantly diminished. If D. moves to Vancouver, the same thing will happen to Mr. T.
[27] Ms. S. says that it would be in D.’s interest to move to Vancouver because:
a. Ms. S. lives in Vancouver, and she thinks that D. should be with her mother.
b. Ms. S. has extended family in Vancouver, to whom D. is strongly attached.
c. Vancouver is a large and sophisticated city, which offers better educational and recreational opportunities for children than Nanaimo.
d. Ms. S. earns a much higher income in Vancouver than she could earn on Vancouver Island, with the result that D. will enjoy a higher standard of living in Vancouver than she would on Vancouver Island.
I am not aware of any reason to think that mothers are generally more important to daughters than fathers. The evidence in this case provides no reason to think that Ms. S. is a better parent or a more important attachment figure for D. than Mr. T. If D. moves to Vancouver, she will have much less parenting time with her father. If she remains on Vancouver Island, she will have much less parenting time with her mother. There is no basis on which I could conclude that one is more important than the other. D. does have strong attachments to Ms. S.’ extended family in Vancouver, but she has equally strong attachments to Mr. T.’s extended family and to other members of Ms. S.’ extended family who live on Vancouver Island. It is true that the opportunities for children in Vancouver are different than those on Vancouver Island, but I do not think that they are necessarily better. A large city offers more varied and sophisticated opportunities for children, but offers fewer opportunities for unstructured and unsupervised activities with peers. I am not aware of any evidence to indicate that children who grow up in cities are happier or more successful than children who grow up in small towns. Ms. S. does not say that she will return to Vancouver Island if I refuse permission to relocate. As a consequence, D. will enjoy the benefit of Ms. S.’ enhanced income-earning potential wherever D. lives. Shortly put, for every advantage which might accrue to D. in Vancouver, there is a corresponding and equally important advantage which would accrue to her on Vancouver Island.
[28] The factors identified by Ms. S. are, in my view, equally balanced on either side. I think that D. could have a happy and successful childhood in the home of either parent. However, I think that three factors tip the balance in favour of Vancouver Island:
a. D. has lived her whole life on Vancouver Island. It is familiar and comfortable territory for her. She enjoys her visits to Vancouver, but it is not home for her.
b. D. has been enrolled in [omitted for publication] for almost 2 years, and appears to be doing well there. Changes of school, with the consequent need to settle into a new peer group, can be difficult at D.’s age.
c. D. is a happy, well-adjusted, secure child, who has obviously been well parented by both parents. If things are going well for her, and they are, it would be unwise to make any unnecessary changes in her life.
In some of the early jurisprudence, it was said that there should be no presumption in favour of the status quo. That observation arose from section 69(7), quoted above, which was construed to mean that the court should not consider the possibility that the custodial parent might decide not to move if she were forbidden to take the child with her. That possibility does not arise in this case - Ms. S. has already moved to Vancouver, and plainly does not intend to return to Vancouver Island if I refuse leave for D. to move to Vancouver. Similarly, Mr. T. does not intend to move to Vancouver if I grant such leave. The parties have put only two scenarios before the court: (i) the status quo; or (ii) D. moves to Vancouver to live with Ms. S. In that circumstance, it is my duty to choose between the two, and to make that choice solely by deciding which offers the most benefits to D. Stability, consistency and continuity are factors of importance to children, and are proper matters to take into account when making that decision: Family Law Act, section 37(2)(e); CMB v. BDG 2014 BCSC 780; [2014] BCJ No. 871; 45 RFL (7th) 313 at paragraphs 79 – 109; Hefner v. Hefner 2016 BCSC 1504; [2016] BCJ No. 1742 at paragraphs 59 – 65; Bonar v. Bonar 2016 BCSC 2065; [2016] BCJ No. 2327 at paragraphs 67 – 73.
[29] The family violence of which Ms. S. complains was less serious than one sees in many cases. Except for the curious incident in which Ms. S. alleges that Mr. T. struck her elbow with his face, no blows were struck. No lasting injuries were sustained.
[30] There are no reported incidents of family violence in the past 2 years.
[31] There are only two reported incidents of physical violence.
[32] I refer to the issue of “coercive and controlling behaviour” at paragraph 39, below.
[33] There is no evidence of any family violence directed toward D., although she was present for, and observed, incidents of violence between her parents.
[34] There is no evidence to support an inference that Mr. T.’s conduct had any lasting adverse effect upon D. In describing the two most serious incidents, Ms. S. says that D. was upset, but recovered quickly (paragraphs 12, 16, above). Ms. S.’ account of the incident described in paragraph 16 is particularly telling. D. seems to have had a much more calm and mature response to that incident than either of her parents. There is no suggestion in the evidence that D. is now anything other than a happy, well-adjusted, highly functioning little girl.
[35] Mr. T. has completed counselling, to which he was referred by the Ministry of Child & Family Development. Since he completed that program, the incidence of family violence has greatly diminished, and the risk now appears to be small.
[36] The history of family violence has not prevented Ms. S. and Mr. T. from successfully cooperating in parenting D. since September, 2014. There is no reason to think that they may fail to do so after the relocation issue is decided.
[37] As explained above, I think that D.’s safety, security and sense of well-being will be better preserved in Nanaimo than in Vancouver.
[38] Ms. Recalma, on behalf of Ms. S., submits that the incidents described in the evidence support an inference that Mr. T. is a less suitable custodial parent than Ms. S. I decline to draw that inference for the following reasons.
a. Ms. S. did not espouse it in her evidence. On the contrary, she says that D. is loved and well cared-for in Mr. T.’s home: see paragraph 9, above.
b. If Ms. S. believed that Mr. T. is not a suitable person to fill the role of custodial parent, her decision to agree to the shared parenting arrangement which has been in place since September, 2014 was grossly irresponsible, and calls into question her parental judgment.
c. Ms. S. was perfectly willing to leave D. in Mr. T.’s care, on a week-on, week-off basis, until the spring of 2016, when Ms. S. was offered employment in Vancouver. No relevant factor has changed since that time.
[39] Ms. Recalma says that Ms. S. agreed, in August, 2014, to the week-on, week-off parenting schedule because she was intimidated by Mr. T., and that she has been generally coerced and controlled by him. I reject that submission for the following reasons:
a. There is no shred of evidence to support that assertion. In particular, Ms. S. did not say, in any part of her evidence, that she felt intimidated or coerced by Mr. T.
b. I asked Ms. S. why she agreed to the parenting schedule. She replied:
I felt that having the week-on, week-off may establish some more consistency, some more routine, to give [Mr.T.] an idea of what it’s like to be a full-time parent, to be hands on, to take her to school, to, you know day care at that time, to take her to dentist and doctors’ appointments; giving my ability to further pursue my career with the week off that I had; having her comfortable away from me for a week.
The reader will observe that her answer contains no suggestion of coercion or intimidation.
c. Ms. Recalma’s submission is inconsistent with my observation of Ms. S. in the witness box. She presents as a well-educated, articulate, confident professional woman, and not as one who is easily intimidated.
d. Ms. Recalma did not confront Mr. T. with the proposition during his cross-examination, as she ought to have done if the argument was to be made. If Ms. Recalma had suggested to Mr. T. that it was his intention to intimidate Ms. S., or that she was, in fact, intimidated by him, he might have been able to point to subsequent events or statements inconsistent with that proposition. Because the suggestion was not made, he was deprived of that opportunity.
[40] Ms. Recalma also says that no inference should be drawn from Ms. S.’ agreement to the week-on, week-off parenting schedule because Ms. S. was not represented by counsel when the agreement was made. Ms. Recalma is simply mistaken about that. On August 10, 2015, the parties appeared in open court on a family remand day. Ms. Karla Shupe appeared as counsel for Ms. S. Mr. T. had the assistance of Mr. Joe Simpson, as duty counsel. Ms. S.hupe and Mr. Simpson are very experienced and able members of the Nanaimo bar, who practice exclusively in the area of family law. Ms. S.hupe informed my colleague, His Honour Judge MacCarthy, that the parties had reached agreement on an interim order for parenting time and parental responsibilities. She then recited the terms agreed for the record. The week-on, week-off parenting arrangement was one of those terms.
Disposition
[41] Ms. S.’ application to relocate D. to Vancouver is dismissed.
The Honourable Judge T. Gouge
Provincial Court of British Columbia