IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           M.B. and C.B.B. are before the court today both seeking the primary residence of their six year old son, J.B., and an allocation of parenting time and responsibilities.  Mr. and Ms. B cohabitated between April 2009 and May 2013.  J.B. was born on [omitted for publication].  On December 27, 2013, M.B. and C.B.B. entered into a Separation Agreement which gave C.B.B. parenting time with J.B. five days per week and M.B. parenting time two days per week.  Both M.B. and C.B.B. have since established new relationships.  Over time, M.B.’s parenting time with J.B. increased.  By December 2015, M.B. and C.B.B. shared substantially equal parenting time with J.B.  In the spring of 2016, C.B.B. gave M.B. notice of her intention to move to [omitted for publication], B.C. to reside with her new partner, B.J.  M.B. told C.B.B. he would oppose her relocating J.B.  In June 2016, C.B.B. separated from B.J. and advised M.B. she had changed her mind about moving to [omitted for publication].  C.B.B. reconciled with B.J. and in August 2016 moved to [omitted for publication] with J.B. without M.B.’s knowledge or consent.  Up until this time, J.B. had lived his entire life in Houston, B.C., with his parents and their respective extended families.

[2]           On October 21, 2016, Judge Birnie ordered C.B.B. to return J.B. to Houston, B.C.  Since then, J.B. has resided in Houston with M.B. and C.B.B. has had parenting time with J.B. every second weekend and on such days and at such times as the parents from time to time agreed.

[3]           The issues before the court are:

[4]           On May 19, 2016, M.B. filed an Application to Obtain an Order in which he sought with respect to J.B.: (a) guardianship; (b) contact; (c) parenting time; (d) allocation of parenting responsibilities; (e) an order prohibiting C.B.B. from relocating J.B. from Houston to [omitted for publication], B.C.

[5]           On August 23, 2016, M.B. filed a Notice of Motion for an order prohibiting C.B.B. from relocating J.B. and requiring his immediate return to Houston, B.C.

[6]           On August 23, 2016, M.B. filed an Affidavit in this matter, attaching exhibits “A” to “M”.

[7]           On August 29, 2016, Kyla Alliston, paralegal in the employ of legal counsel for M.B., filed an affidavit attaching as Exhibit “A”, a letter from [omitted for publication] concerning J.B. and Exhibit “B”, J.B.’s Student Information Verification.

[8]           On September 1, 2016, M.B.’s August 23, 2016 Application came before Judge Jackson in the Smithers Provincial Court.  M.B. was represented by Mr. DeWolf and C.B.B. was represented by Ms. L. Locke, acting as duty counsel.  Judge Jackson granted C.B.B.’s request for an adjournment.

[9]           On September 22, 2016, C.B.B. filed an Affidavit with the Court, to which she attached Exhibits “A”, “B” and “C”.

[10]        On September 27, 2016, C.B.B. filed a Reply to M.B.’s May 19, 2016 Application to Obtain an Order.  In her Reply, C.B.B. disagreed with M.B.’s application in its entirety.  C.B.B. counterclaimed for guardianship, parenting time, and allocation of parenting responsibilities with respect to J.B.  C.B.B. also sought child support and retroactive child support.

[11]        On October 6, 2016, M.B. filed an Affidavit with the Court in response to C.B.B.’s September 22, 2016 Affidavit, attaching Exhibits “A” to “E”.

[12]        On October 13, 2016, M.B.’s August 23, 2016 Application came before Judge Struyk in the Smithers Provincial Court.  M.B. was represented by Mr. DeWolf and C.B.B. was represented by Ms. J. Reed.  The matter was adjourned to the Judicial Case Manager to schedule a hearing of the application.

[13]        On October 19, 2016, M.B. filed a Reply to C.B.B.’s September 27, 2016 Counterclaim.  In his Reply M.B. agreed that C.B.B. have guardianship of J.B.  In all other respects, M.B. disagreed with C.B.B.’s application.  M.B. reiterated his application to have J.B. reside primarily with him in Houston, B.C.

[14]        On October 21, 2016, M.B.’s August 23, 2016 Application came before Judge Birnie in Smithers Provincial Court.  On that date, Judge Birnie made an interim order requiring C.B.B. to return J.B. to the Houston area by October 29, 2016.  Judge Birnie further ordered that if C.B.B. returned to Houston, then M.B. and C.B.B. would share parenting time with J.B.  If C.B.B. chose to remain in [omitted for publication], then J.B. would reside with M.B. and C.B.B. would have reasonable parenting time.

[15]        On January 16, 2017, M.B. filed a Form 4 Financial Statement.

[16]        The parties agree that all affidavits filed in these proceedings to date are before me.

[17]        This matter came on for trial on June 13, 14 and August 3, 2017.  I heard evidence from C.B.B., B.J., M.B., and A.S.  I received into evidence the following exhibits:

[18]        At the conclusion of the Respondent’s case, I invited Mr. Hutchinson to recall C.B.B. to address evidence with which she had not been confronted.  He declined to do so.

[19]        At the conclusion of the trial, I heard submission of counsel and received legislation and case law provided in support of their respective arguments.  I have reviewed and considered all the materials.  [Cite cases]  I echo the words of Madam Justice Fisher in Hadjioannou v. Hadjioannou, 2013 BCSC 1683 at p. 22:

[20]        M.B. and C.B.B. were in a spousal relationship between April 2009 and May 20, 2013.  They began cohabitating in April 2009 and were married on July 7, 2012 in Houston, B.C.  They separated on May 20, 2013, and never reconciled.

[21]        M.B. and C.B.B. are the biological parents of J.B., born [omitted for publication].

[22]        On December 27, 2013, M.B. and C.B.B. entered into a comprehensive separation agreement, a copy of which was marked Exhibit 1 in these proceedings.  In this separation agreement, M.B. and C.B.B. acknowledge their common wish to share child-related responsibilities and to minimize the effect of their separation on J.B.: Exhibit 1, p. 1, Recital G and p. 2, para. 1.

[23]        With respect to J.B., M.B. and C.B.B. agreed, among other things, to the following terms:

[24]        Paragraph 18 of the Separation Agreement sets out a comprehensive list of parental responsibilities, all of which the guardians must exercise in J.B.’s best interests.  Those parental responsibilities include making decisions where J.B. will reside and with whom he will reside and associate.  It also includes decisions as to where he will go to school.  Paragraphs 19 and 20 of the Separation Agreement state:

[25]        Within a month of separating from M.B., C.B.B. began residing in an intimate relationship with P.A.  C.B.B. and J.B. lived with P.A. and his two children until October 4, 2015, when P.A. died in a motorcycle accident.

[26]        When they first separated, C.B.B. had parenting time with J.B. during the work week and M.B. had parenting time with J.B. every Saturday and Sunday.  Gradually, M.B.’s parenting time with J.B. expanded to include Friday, Saturday and Sunday.

[27]        J.B. attended the Strong Start preschool program at [omitted for publication] school in Houston commencing September 2015.  He was also registered in [omitted for publication] School’s Kindergarten class commencing September 2016.

[28]        On November 20, 2015, C.B.B. commenced a relationship with B.J., who resides on a farm on [omitted for publication], near [omitted for publication], B.C, approximately 46 kilometres east of Prince George, B.C.

[29]        B.J. is 41 years old and has three children of previous relationships.  B.J.’s son C.J. is 16 years old and resides with his mother in Parksville, B.C.  B.J.’s sons X.J. and L.J., ages 13 and 11 respectively, live with their mother in Hudson Hope, B.C.  B.J. has parenting time with his sons on his farm at least once per month, with extended visits during the summer, spring and Christmas school breaks.

[30]        In March 2016, C.B.B. told M.B. she was considering moving.  He told her he was opposed to her relocating J.B. from Houston.

[31]        In mid-April 2016, C.B.B. learned she was pregnant with B.J.’s child.  At that time she decided to move to the Farm to live with B.J.  In her September 20, 2016 Affidavit C.B.B. stated she later developed complications with her pregnancy.

[32]        On April 24, 2016, C.B.B. advised M.B. in writing of her intention to relocate J.B. to [omitted for publication].  A copy of this notice is attached as Exhibit “E” to M.B.’s August 23, 2016 Affidavit.  Upon receiving the notice, M.B. told C.B.B. he opposed her relocating J.B. to [omitted for publication].

[33]        In May 2016, C.B.B. and B.J. became engaged to be married.

[34]        M.B., through legal counsel, prepared and filed the May 19, 2016 Application opposing C.B.B. relocating J.B. to [omitted for publication].  M.B.’s previous legal counsel (Mr. Blanche of Giddings & Company) attempted to serve C.B.B. with a copy of the May 19, 2016 Application by registered mail, however, it was returned to his office indicating C.B.B. had not picked it up.

[35]        Before M.B.’s counsel could effect service of the May 19, 2016 Application, C.B.B. advised M.B. she had changed her mind about moving.  On June 4, 2016, C.B.B. sent M.B. a text message indicating she had ended her relationship with B.J. and that she no longer intended to relocate to [omitted for publication].  C.B.B.’s text message stated:

[36]        C.B.B. testified that she and B.J. were fighting about her smoking while she was pregnant.  She became angry and they started a text message fight and she over-reacted.

[37]        A copy of this text message is attached as Exhibit “F” to M.B.’s August 23, 2016 Affidavit.

[38]        As a result of receiving this message, M.B. did not proceed with his May 19, 2016 Application at the time.

[39]        Shortly after sending M.B. the text message reproduced above, C.B.B. reconciled with B.J. and resurrected her decision to move to [omitted for publication] to live with B.J.  She did not advise M.B. she and B.J. had reconciled nor did she tell him she intended on relocating J.B. to [omitted for publication].

[40]        M.B. began to suspect that C.B.B. and B.J. and reconciled.  M.B. asked her not to have J.B. around B.J. until she was sure about the relationship.  C.B.B. nevertheless took J.B. to B.J.’s farm in June 2016 and refused to tell M.B. of J.B.’s whereabouts: Exhibit G of M.B.’s August 23, 2016 Affidavit.

[41]        C.B.B. began moving her belongings into B.J.’s residence in July 2016 and they began living together in August 2016.  Between the time C.B.B. met B.J. on November 20, 2015, and the time she moved to the Farm in August 2016, C.B.B. and B.J. spent most of their time together at the Farm.  C.B.B. says she would go to the Farm for a few days, almost every week.  Every so often, B.J. also came to visit C.B.B. in Houston.

[42]        M.B. believed C.B.B. intended to move to [omitted for publication] with J.B. and retained legal counsel to address his concerns.  On July 16, 2016, M.B. hand delivered to C.B.B. a letter from his legal counsel, then Mr. Zachary Blanche of Giddings & Company, advising C.B.B. that if she intended to move J.B. to [omitted for publication], she would need to provide M.B. with a new letter informing him of when she intended on moving.  Mr. Blanche also confirmed that M.B. would oppose any attempt by C.B.B. to move J.B.: Exhibit “H”, M.B.’s August 23, 2016 Affidavit.

[43]        On August 18, 2016, C.B.B. filed a Notice of Family claim in the Supreme Court of British Columbia, Prince George Registry: Exhibit 7, Tab 7, Exhibit B.  C.B.B. sought among other things: (a) an order for divorce; (b) an order respecting a child; and (c) an order relating to family property and family debt.  With respect to the proposed arrangement for parenting, C.B.B. proposed the following:

[44]        The divorce proceedings C.B.B. initiated are presently stalled.  C.B.B. said they did not go further than the judicial case conference.

[45]        When he swore his August 23, 2016 Affidavit, M.B. had not received any notice from C.B.B. of her intention to relocate J.B. to [omitted for publication].  He realized C.B.B. had moved when he found the rental home in which she had been living vacant and subsequently received the Notice of Family Claim (Form 3) setting out C.B.B.’s new address as “[omitted for publication]”.

[46]        Up until the time C.B.B. relocated him to [omitted for publication], J.B. had spent his entire life in Houston, B.C.

[47]        While residing in [omitted for publication] with J.B., C.B.B. returned J.B. to Houston to have parenting time with M.B. for two to three days every week.  This is a distance of roughly 353 km and takes roughly four to four and one-half hours to drive.

[48]        M.B. says that after P.A. died, J.B. came to live with him for a time.  M.B. took time off work so he could care for J.B.  After about three weeks, C.B.B. began to have visits with J.B.  Gradually C.B.B.’s time with J.B. increased until she and C.B.B. had roughly equal parenting time.  Between December 2015 and July 2016, M.B. had parenting time with J.B. as follows:

[49]        As set out above, M.B. filed the August 23, 2016 Notice of Motion seeking an order requiring C.B.B. to return J.B. to Houston, B.C.

[50]        C.B.B. enrolled J.B. in [omitted for publication] Elementary School for September 2016, without M.B.’s knowledge or consent.

[51]        On October 21, 2016, Judge Birnie ordered C.B.B. to return J.B. to Houston by October 29, 2016, which she did.  Since this order, J.B. has been living primarily with M.B. in Houston, B.C.  J.B. spends every second weekend with C.B.B. at B.J.’s farm.  M.B. and C.B.B. often meet in Fraser Lake, B.C. to transition J.B.

[52]        For the past ten months, J.B. has been residing primarily with M.B. and his new partner, A.S.  They live in a four bedroom home on eight acres on the outskirts of Houston B.C., a community in which M.B. has lived since he was four years old.

[53]        C.B.B. has parenting time with J.B. every second weekend.  She has also had parenting time on the Easter weekend and during the 2017 school summer break.

[54]        C.B.B. now lives with B.J. on his 317 acre farm (the “Farm”) bordering the [omitted for publication] River.  The Farm is near [omitted for publication] and approximately 46 kilometers from downtown Prince George, B.C.  It is accessible via a forest service road.  B.J.’s parents also live on the Farm intermittently and are currently building a residence approximately 200 meters from B.J.’s residence.  B.J. has lived on the Farm for 12 ½ years.  There he keeps a herd of 17 yaks and four horses, a dozen chickens, two dogs and two cats.  In her September 22, 2016 Affidavit, C.B.B. describes B.J.’s farm as follows:

[55]        B.J. describes himself as a multi-facetted contractor.  He has worked in commercial transport for 19 years and his primary occupation is hauling logs, five days per week from November to March and three days per week in the summer.  B.J. also has the contract for maintaining the Forest Service Road by which is farm is accessed.  Although some Forest Service Road maintenance is done in the summer, much of the work is in the spring and fall.  In the winter, B.J. must also plough and sand.  In the summer, B.J. works on the farm, haying, tending his livestock and harvesting wood for winter.  The farm also produces a hay crop which B.J. harvests to feed his animals and to sell.  He also sells some meat, eggs and animal fibre.  B.J. performs his own maintenance on the farm buildings and repairs on his equipment, which include a Champion grader, International sand and plough truck, dump truck, excavator, a 215 Caterpillar excavator and two tractors.

[56]        C.B.B. and B.J.’s infant son, C.E.J. was born at full term on December [omitted for publication].  J.B. is gentle with and loving to C.E.J. and looks forward to seeing his little brother.  J.B. has not expressed any jealousy or frustration with C.E.J.; rather, tries to play with him.

[57]        B.J., his parents and his sons have developed a good relationship with J.B.  B.J. coordinates his sons’ visit to the farm to coincide with J.B.’s.  The children play games such as charades and hide-and-seek.  J.B. is closest to L.J. because they are closer in age.

[58]        Since moving to the Farm, C.B.B. obtained training as an environmental monitor and is now a certified collection technician for water and ground samples.  C.B.B. also guides other environmental monitors who take samples quarterly.  This engages C.B.B. every three months for two to five days.  When she works, C.B.B. earns $300 per day.  In the future C.B.B. plans to enrol in University of Northern British Columbia and complete four year degree in environmental studies.

[59]        It is apparent to me that B.J. and C.B.B. work very hard.  When driving the logging truck, B.J. gets up between 2:00 and 4:00 a.m. and returns home between 2:00 and 4 p.m. in the afternoon.  B.J. estimates that when hauling logs he works 12 to 13 hours per day and sleeps for a minimum of nine hours per day.  B.J. also spends five to six hours working on the Farm each weekend.

[60]        C.B.B. cares for C.E.J., who is now six months old, and J.B. when he is present.  She takes responsibility for the household chores and helps tend the animals.  C.B.B. says her household, including J.B. when he is present, wakes early and goes to bed early.

[61]        J.B. enjoys the outdoor farm live, including helping his mother and B.J. with the various chores on the Farm, such as sweeping and gathering wood.  J.B. is particularly fond of those chores which are animal related, such as collecting eggs, feeding the cat and bottle feeding the calf.  J.B. also enjoys recreational activities such as riding his bike and swimming in the [omitted for publication] River, which is 700 yards from the Farm.  Sometimes J.B. goes swimming in the pool in Prince George.  C.B.B. also takes J.B. to the farmers market.  If J.B. were to live on the Farm, C.B.B. would enrol him in a swimming club in Prince George and on a baseball team in [omitted for publication] River.

[62]        If J.B. were to live with C.B.B. and B.J. he would attend the [omitted for publication] Elementary school.  It is a small school which J.B. attended for six to eight weeks in the fall of 2016, before Judge Birnie ordered his return to Houston, B.C.  The school offers classes from Kindergarten to Grade 7.  It has only 39 students in total.  Kindergarten, Grade 1 and 2 are in one class.  There were three students in J.B.’s 2016 K to 2 class.  B.J. and C.B.B. say that for the brief time he was there, J.B. found going to the [omitted for publication] Elementary School a positive experience.

[63]        The [omitted for publication] Elementary School is 12 kilometres from the Farm.  The bus stop is at the end of the drive way which C.B.B. says is a 10 minute drive from the farmhouse.

[64]        B.J. says there is satellite internet and cellular phone service at the Farm, although no television or video games.  B.J. has a laptop which has access to Skype.  Although the Farm has no landline, and both B.J. and C.B.B. have cellular phones.  They say there is no impediment to J.B., while at the farm, contacting his father by Skype or phone.  M.B., however, says that given his difficulties he has experienced trying to contact C.B.B. he believes the cellular service at the Farm is sporadic.  C.B.B. described the cell service on the Farm as inconsistent and “patchy”; sometimes they get one bar, sometimes two, sometimes none.

[65]        The Farm is not serviced by public utilities; however, B.J. generates electricity with solar panels and a backup diesel generator.  He has a 300 gallon propane tank which supplements the wood heat used to heat the residence in winter.

[66]        B.J.’s older boys visit once per month during the school year, and for extended periods during the school holidays.  This means there are times when there are five children in the Farmhouse, which has only two bedrooms.  C.B.B. says they get by with extra mattresses.  Since she has moved to the Farm, most members of C.B.B.’s extended family in Houston have come to visit her.

[67]        M.B. and A.S. testified there were times when J.B. returned from C.B.B.’s care in a condition indicating he has gone several days unbathed and without fresh clothing.  J.B. has mentioned to M.B. the Farm has an outhouse, no bathtub and that “mommy doesn’t have a washing machine and . . . does laundry in the sink.”  J.B.’s comments indicate the Farmhouse is without indoor plumbing.  Although B.J. or C.B.B. reference the availability of a natural spring on the farm, neither testified the Farmhouse did have indoor plumbing.

[68]        C.B.B. is partially dependent on B.J. for her livelihood.  B.J. earns an annual income of $46,000 to $50,000 per year.  After paying for child support, motor vehicles, equipment, fuel, Farm and livestock expenses, B.J. is left with very little income for household expenses.  C.B.B. says the expenses relating to transitioning J.B. from the Farm to Houston was never an issue for her.  C.B.B. receives $825 per month from P.A.’s pension plan as a survivor benefit for herself and J.B.  Until November 2016, M.B. paid C.B.B. child support.  Since then M.B. pays C.B.B. $100 per month to help her with transitioning expenses.  C.B.B. pays for her own cell phone, but does not otherwise contribute to the Farm or household expenses.

[69]        C.B.B. and B.J. often travel to Houston to transition J.B. as well as to spend time with C.B.B.’s large extended family, with whom she has a close relationship.

[70]        C.B.B. and B.J. regularly attend the [omitted for publication] River Gospel Chapel and when he is on the Farm, J.B. accompanies them.

[71]        C.B.B. would like to raise J.B. on the Farm.  She believes there are more opportunities for J.B. in the Prince George area academically, although J.B. would attend [omitted for publication] Elementary School for his primary education.  C.B.B. favours the small class size which the [omitted for publication] Elementary School has to offer.

[72]        In his direct and affidavit evidence M.B. expressed the following concerns about C.B.B.’s parenting of J.B.:

[73]        Not surprisingly, C.B.B. says M.B.’s concerns are without merit.  In particular, she denies: (a) abusing alcohol; (b) driving while under the influence of alcohol; (c) smoking in J.B.’s presence; (d) frequently introducing J.B. to men she is dating.  She describes M.B.’s attempts to have her tell him of J.B.’s whereabouts in June 2016, as “a demanding control tactic” she finally “stood up to”: Exhibit 7, Tab 7.  C.B.B. also says that when she sent M.B. the June 4, 2016, text, she was angry with B.J. and over-reacted.  She did not intend M.B. to conclude that B.J. was mean to J.B., because in fact B.J. was very good to J.B.

[74]        Notwithstanding the foregoing, M.B. has no serious concerns for J.B.’s well-being while in C.B.B.’s care, be it at the Farm or in a vehicle.  Initially, M.B. was alarmed about B.J. because of the virulence of C.B.B.’s June 4, 2016 text message.  M.B. has since come to know B.J., and those concerns have abated.

[75]        M.B. resides with A.S. in a four bedroom home situated on eight acres located on [omitted for publication] Road, a three minute drive from Houston, B.C.  J.B. has his own bedroom.  M.B. and A.S. have no other children.  M.B. has provided the court with photographs of their home and its environs.  J.B. loves animals and M.B. and A.S. have one dog and three cats.

[76]        M.B. resides in the same community as J.B.’s paternal and maternal grandparents, aunts and uncles and cousins.  M.B. has set out the name of those relatives in his Affidavit sworn August 23, 2016: Exhibit 7, Tab 5, pp. 5-6.  J.B. spends much time with M.B.’s relatives and some time with C.B.B.’s relatives, all of whom reside in Houston.  J.B. has also developed a bond with A.S.’s family, who live in Terrace.  They often stay with at the [omitted for publication] family cabin on the river.  A.S.’s sister is moving to Smithers and J.B. has become friends with A.S.’s nephew N., who is six.

[77]        M.B. and A.S. have a number of friends in Houston who also have children.  J.B. is a friend with many of those children.  He has also developed friends with some of his classmates.

[78]        M.B. is an entrepreneur.  He owns, in whole or in part, Aurora Towing Ltd. a Houston tow-truck company.  He has a Class 1A licence and estimates he has driven two million miles in his career.  He also has other businesses, such as a snow removal and landscaping business.  He also has a bobcat, dump truck and trailer he rents.  A.S. also works at [omitted for publication] four days per week.

[79]        When M.B. is working, A.S. or M.B.’s mother (H.M.) cares for J.B.  A.S. has a good relationship with J.B., and spends time with him in various activities, including gardening and baking cookies.  J.B. has a few little household chores, such as feeding the animals, tidying his room and putting away his laundry. 

[80]        Although he works hard, M.B. spends quality time with J.B. each day.  He wakes J.B. in the morning, feeds him breakfast, packs his lunch and drives him to school.  When his schedule permits, M.B. picks J.B. up after school and takes him home.  Sometimes they stop off for ice cream or treats if J.B. had a good day at school.  M.B. is always home for dinner.  He spends one-on-one time with J.B. after dinner, playing with him, reading him bedtime stories, and caring for his personal hygiene, such as bathing, teeth brushing, etc.

[81]        M.B. and J.B. spend time together engaged in a host of recreational activities, both indoor and outdoor, in winter and summer.  These include biking, quading, seadooing, camping, hiking, tobogganing, sledding, cross-country skiing, swimming, bowling, baseball, or going to Steelhead park to play hide-and-seek.  M.B. sometimes outfits J.B. in a hardhat, reflector vest, gloves and boots and takes him to work in his tow truck which J.B. enjoys.  J.B. also likes to assist with outdoor chores such as watering and lawn maintenance.

[82]        Although a small community of 1,500 people, Houston has a swimming pool, bowling alley, baseball diamond, soccer pitches and hockey arena.

[83]        J.B. attended Kindergarten in [omitted for publication] Elementary School in Houston in 2016-2017.  If he were to remain living with his father, J.B. would attend Grade [omitted for publication] at this same school.  J.B. has friends in Houston, who he sees regularly.  He has schoolmates who are both his friends and relatives.

[84]        In her affidavit and oral evidence C.B.B. expressed the following concerns about M.B.’s parenting of J.B.:

[85]        In her affidavit C.B.B. states: “I reflect deeply on the safety concerns I have concerning M.B.’s parenting, yet I choose to allow him to have his parenting time as he wants.”  The safety concerns she particularizes in her affidavit are minor incidents which occurred over five years ago.  M.B. denies any such incidents occurred.

[86]        When asked at trial, C.B.B. said she had no concerns about J.B.’s safety and well-being when he is with M.B.

[87]        M.B. acknowledges he works full-time, but maintains he is more than capable of taking care of J.B. on a full-time basis.  He denies elevating his work over his family.  He states:

[88]        By all accounts J.B. is a happy, inquisitive little boy who loves the outdoors and outdoor activities and animals.  He also loves music, cooking and gardening.  He does, however, show signs of apprehension such as when he attempts a new recreation activity and anxiety by chewing on his coat collar and mittens.

[89]        C.B.B. says that since J.B. left the Farm he is no longer his usual polite self.  He is more rebellious, a little angry; he has lost respect for authority and rules.  She has noticed he has behavioural issues; he has tried to kick her when he is frustrated.

[90]        J.B. is struggling in school and may have a learning disability.  M.B. and A.S. have met with J.B.’s teacher and the school principal to discuss requisitioning a psychological-educational assessment.  J.B. also appears to have speech difficulties and needs to be assessed by a speech language pathologist.  I understand J.B. is scheduled to see the speech language pathologist when she returns from her extended holiday.

[91]        Until C.B.B. moved to the Farm, she and M.B. worked reasonably well in co-parenting J.B.  Their conflict was minimal and manageable.  The text messages forming part of the trial exhibits show M.B. and C.B.B. were usually respectful and supportive of each other.  Moreover, they appear to have ordinarily trusted one another with J.B.’s care and well-being.

[92]        B.J. has seen J.B. with his father and agrees they are well-bonded and connected.

[93]        C.B.B. says that she has not communicated with J.B.’s school in Houston because she relies on M.B. to keep her updated.  

[94]        The Family Law Act (“FLA”) provisions relating to relocation are set out in s. 46 and Division 6.  Section 46 only applies if there is no written agreement or order respecting parenting arrangements which apply in respect of a child.  In this case, the parties have a Separation Agreement.  Accordingly, the provisions of Division 6 of the FLA are engaged.  For ease of reference have reproduced Division 6 below.

[95]        The Court must interpret the FLA consistent with the applicable principles of statutory interpretation.  In Bell Express Vu Limited Partnership v. Rex, 2002 SCC 42 (CanLII), the Supreme Court of Canada held that a contextual approach must be taken to statutory interpretation.  Courts are to consider the entire context of statutory words and phrases and read them in harmony with the object of the legislation.  

[96]        The following passage from Driedger on the Construction of Statutes, 3^rd ed. (1994) is often cited:

[97]        Also relevant is s. 8 of the Interpretation Act, RSBC 1996, c 238, which states:

[98]        I understand from Mr. Hutchinson’s submissions, C.B.B. concedes that she was obligated and failed to provide M.B. with further written notice of her intention to relocate J.B. after having texted M.B. that she was not moving.  I note, however, her affidavit filed September 22, 2016 (Exhibit 7, Tab 7), at paragraphs 27, 32 to 34, C.B.B. discusses matters relating to the issue of providing notice of her intention to relocate.  I will address this issue in the event it remains alive.

[99]        M.B. received C.B.B.’s notice of her intention to relocate J.B. from Houston to [omitted for publication] on April 24, 2016.  As a result he engaged counsel who commenced legal proceedings to oppose the move.  On June 4, 2016, C.B.B. notified M.B. in no uncertain terms she had changed her mind about moving to [omitted for publication] to live with B.J.  She referred to B.J. in that text as a “freak” who turned “full psycho” on her.  She said she felt like a fool thinking of taking J.B. away from his family.  (Exhibit 7, Tab 5, pp. 3, 32, 33.)  Although C.B.B. and B.J. reconciled after a week, she never disclosed this fact to M.B.

[100]     Upon receiving C.B.B.’s June 4, 2016 text message, M.B. quite reasonably notified his counsel that it was unnecessary to continue the legal proceedings opposing C.B.B.’s move because she had changed her mind.

[101]     When he divined that C.B.B. had reconciled with B.J. and planned to move with J.B. to live in [omitted for publication], M.B. hand delivered to her a letter from his counsel dated July 16, 2016, advising C.B.B. that if she intended to move, she needed to provide him with written notice of that intention and he would oppose any attempt to relocate J.B.

[102]     C.B.B. says she took Mr. Blanche’s July 16, 2016 letter to a local lawyer (not Mr. Hutchinson) who advised her to ignore it and apply for a divorce.  With this advice, C.B.B. relocated and commenced divorce proceedings in Prince George Supreme Court Registry.  C.B.B. said the lawyer she consulted advised her she did not have to give M.B. further notice of her intention to move to [omitted for publication].

[103]     Upon considering the principles of statutory interpretation set out above, I find that in the circumstances C.B.B. was required to give M.B. written notice of her intention to relocate J.B. after June 4, 2016.  To rule otherwise would render Section 66 meaningless, contrary to the principles of statutory interpretation.  A parent seeking to relocate could simply serve notice on the other parent, and before the 60 days expired, rescind the notice.  The non-relocating parent would be misled into believing the relocation was no longer an issue and fail to oppose the relocation in a timely manner.

[104]     M.B.’s records indicate that since P.A. died in October 2015, that M.B. and C.B.B. maintained a shared parenting regime.  In her cross-examination C.B.B. agreed that M.B. had J.B. 40 to 50% of the time.  In his closing submissions, Mr. Hutchinson submitted that in 2016, the parties’ parenting time with J.B., if not equal, was substantially equal.

[105]     Since he was returned to Houston by court order, J.B. has lived primarily with M.B.  C.B.B. has parenting time with J.B. every other weekend and as agreed on school holidays.

[106]     I find that from October 4, 2015, the date on which P.A. died, until Judge Birnie ordered J.B. returned to Houston, M.B. and C.B.B. had substantially equal parenting time.  After November 1, 2016, the parties did not have equal parenting time because J.B. was primarily in M.B.’s care.

[107]     Because the parties had equal parenting time, C.B.B. must satisfy the court the criteria set out in s. 69(5) of the FLA as reproduced above.

[108]     Section 69(5) requires C.B.B. to show her proposed relocation of J.B. was made in good faith.  Section 69(6) of the FLA sets out some of the factors a court must consider as to whether a proposed relocation is made in good faith.  Mr. Hudson submits C.B.B.’s proposed relocation was not made in good faith with respect to all the factors set out in s. 69(6).  I will address each in turn.

[109]     C.B.B. relocated to [omitted for publication] to live with B.J. on his Farm in the summer of 2016, because she loved him and was pregnant with his child.  They continue to live together on the Farm with their six month old son, C.E.J.

[110]     El Feky v. Tohamy, 2010 ONCA 647(CanLII) was a relocation case before the Ontario Court of Appeal.  At para. 33, Chief Justice Rosenberg defines good faith in the context of the Family Law Act, RSO 1990, c F.3, to mean “acting honestly and with no ulterior motive.  

[111]     In L.J.R., Mr. Justice Bretton made the following observations with respect to s. 69(6):

[112]     In Pepin v. McCormack, 2014 BCSC 2230 (CanLII), Mr. Justice Ken stated at para. 69:

[113]     I accept C.B.B. relocated for the reasons she espoused and not for any ulterior motive such as trying to frustrate M.B.’s parenting time with J.B.

[114]     I find  C.B.B.’s relocation to the Farm has and is likely to continue to enhance C.B.B.’s quality of life based on the following evidence:

[115]     I find C.B.B.’s relocation to the Farm has increased her emotional wellbeing and will likely continue to so.  I also find C.B.B. has benefited from the financial and educational opportunities that have and will become available as a result of her relocation.

[116]     The question of whether the proposed relocation is likely to enhance J.B.’s quality of life is thorny.  Counsel for C.B.B. refers to cases which suggest a happy parent makes for a happy child.  I accept the premise that J.B. would benefit from circumstances which enhanced his parent’s emotional well-being.  Still, I question whether J.B.’s best interests are so inextricably tied to C.B.B.’s.  In any event, as Madam Justice Prowse states in Stav v. Stav (cited in De Jong v. Gardner, 2013 BCSC 1302 at para. 83), “that could be said about either of the parents in this case and does not further the analysis.”

[117]     C.B.B. decided to move to [omitted for publication] and live with B.J. on the Farm in mid-April 2016 when she discovered she was pregnant with his child.  She resiled from this decision when she and B.J. fought over her smoking while pregnant.  They quickly reconciled and C.B.B. resurrected her plans to live with B.J. and take J.B. with her.  C.B.B. testified although she did not tell M.B. of her renewed plans to move to the Farm with J.B. she maintains M.B. knew she was moving because she assumed he saw her stuff in her truck.

[118]     I do not believe C.B.B. honestly believed she had right to relocate J.B. to [omitted for publication] without M.B.’s consent or a court order, otherwise she would have simply told M.B. of her plans.  Moreover, I am persuaded that C.B.B.’s refusal in June 2016 to tell M.B. where she had taken J.B. was a deliberate attempt to conceal the fact she had reconciled with B.J. and was returning to the Farm. (Exhibit 7, Tab 5, p. 4, para. 23, exhibit G)  I reject C.B.B.’s assertion she was simply standing up to M.B.’s “demanding control tactics”. (Exhibit 7, Tab 7, p. 6, para. 30)  The evidence before this court, including M.B. and C.B.B.’s text messages entered as exhibits, do not depict M.B. as someone who was demanding or controlling.

[119]     I do not believe that C.B.B. had serious safety issues with M.B.’s parenting as asserted in her affidavit sworn September 22, 2016: Exhibit 7, Tab 7, p. 6.  Her many requests to have M.B. care of J.B. for extended periods contradicts such this claim.  Moreover, C.B.B. testified on June 13, 2017, that she had no concerns about J.B.’s safety and wellbeing when he is with his father.

[120]     The lawyer C.B.B. says she consulted in the summer of 2016 is known to this court as a senior member of the family bar.  I do not believe that such a lawyer, if fully informed of the circumstances, including the existence of the Separation Agreement, would tell C.B.B. she could relocate J.B. to [omitted for publication] without notice to M.B., without his consent or without a court order.

[121]     A parent who wishes to relocate cannot gain an advantage by simply relocating in advance in the spirit that it is better to seek forgiveness than ask permission.  There are consequences for failing to comply with the relocation provisions in the FLA.  (See. L.J.R. v. S.W. R., 2013 BCSC 1344, paras. 73 fwd)

[122]     M.B. and C.B.B. had a Separation Agreement requiring them to consult about where J.B. will reside and with whom he will reside and associate:  Exhibit 1, paras. 18 and 19.  Although there is no express provision prohibiting a parent from relocating J.B., by doing so without M.B.’s knowledge or consent, C.B.B. breached the consultation provisions of the Separation Agreement.

[123]     Section 69(6) provides an enhanced definition of “good faith”.  It encompasses far more considerations than C.B.B.’s motives for relocating.  In assessing all the factors set out in s. 69(6) I do not find C.B.B. acted in good faith when she relocated J.B. to the Farm in August 2016.  She uprooted J.B. from his community in which he has lived with his family, extended family and friends since birth.  He was scheduled to commence Kindergarten in [omitted for publication] Elementary School in September 2016.  His classmates would likely have been some of the children with whom he attended the Strong Start program.  In moving J.B., C.B.B. significantly diminished his contact with M.B., with whom he had a close and loving relationship, as well as with his extended family.  As Justice Bretton noted in D.G.S. v. J.D.S., 2014 BCSC 183 (CanLII), at para. 89:

[124]     I agree with Mr. Hudson, that C.B.B. did not relocate with J.B. in order to enhance J.B.’s interests, although I would add, except to the extent J.B.’s interests would be enhanced indirectly by C.B.B.’s improved financial and emotional circumstances.

[125]     I find the comments of Madam Justice Smith, referred to by Justice Kent in De Jong v. Gardner at para. 85 apposite:

[126]     I do not believe that C.B.B. gave due consideration to the impact relocating J.B. to the Farm would have on his emotional well-being or to the potential effect it would have on his relationship with his father and extended family who have a significant role in his life.  C.B.B. justified her actions on the basis she maintained the parenting time schedule set out in the Separation Agreement.  By the Summer of 2016, however, that schedule had been modified with the result that M.B.’s parenting time had increased to the point it was substantially equal to that of C.B.B.  Also, C.B.B. did not seem to give due consideration to the impact on J.B. of having to commute for eight to ten hours each weekend.

[127]     Although I do no not find C.B.B. to have acted in good faith when she moved J.B. to the Farm in the summer of 2016, I find the significance of her failure to comply with the Family Law Act legislative relocation provisions and the Separation Agreement has diminished with time.  C.B.B.’s efforts to ensure M.B. have parenting time after she relocated J.B. to the Farm did much to mitigate this misconduct.  The relocation issue is now properly before the Court, with both parties present and represented by counsel. 

[128]     Although I do not find C.B.B.’s relocation to [omitted for publication] in August 2016 was made in good faith, this is not dispositive of the issue.  In A.J.E. v. E.A.E., 2013 BCSC 2160 (CanLII), at para. 37, Madam Justice Harris held that even where the court finds a relocating parent has not acted in good faith it does not mean the proposed relocation is not in the best interests of the child.  She states, “In all cases the court must determine if the proposed relocation is in the child’s best interest.”  Similarly, in C.M.B. v. B.D.G., 2014 BCSC 780 (CanLII), Madam Justice Fleming concluded:

[129]     Section 69(5)(b) requires C.B.B. to propose reasonable and workable arrangements to preserve the relationship between J.B. and M.B., and other persons who have a significant role in his life.  When C.B.B. relocated J.B. to the Farm in the summer of August 2016, she facilitated M.B. having parenting time with J.B. for two to three days per week, and sometimes longer.  I understand C.B.B. is willing for M.B. to have parenting along the lines set out in the August 18, 2016 Notice of Family Claim, with some modifications.  I understand C.B.B.’s current proposal for parenting time is as follows:

[130]     Given the parties are separated by a lengthy drive, C.B.B.’s proposal to preserve the relationship between J.B. and M.B. is reasonable and workable.  As her counsel points out, C.B.B.’s proposal is not perfect, but in the circumstances, no arrangement can be.  In Hansen v. Ferguson, 2015 BCSC 588, Madam Justice Fisher noted at para 54 that the law does not require a perfect parenting plan, only one that it is reasonable and workable.

[131]     Sections 69(3) and (5) of the FLA and Separation Agreement (para. 18) require C.B.B.’s proposed relocation of J.B. to the Farm to be in J.B.’s best interest.  To make this determination, I must consider the factors set out in s. 37(2), which state:

[132]     There is no doubt M.B. and C.B.B. love J.B. deeply and have a positive and supportive relationship with him.

[133]     I do not have any concerns as to J.B.’s health and emotional well-being while in M.B.’s care.

[134]     I have the following minor concerns about J.B.’s health and emotional well-being in C.B.B.’s care, including:

[135]     There is no Section 211 of the FLA report in this case.  I have received hearsay evidence from both parties that J.B. is happy when in their care.  Beyond accepting this is likely true from each of their perspective, I do not consider it appropriate to consider J.B.’s views.  He is not yet six years old and is already showing signs of anxiety.  It is too weighty a decision for him to grapple with.

[136]     M.B. and A.S. testified that J.B. is often unhappy at the prospect of going to go the Farm and they try and rally his enthusiasm.  I accept this may be because there is something else J.B. wants to do in Houston at the time or is simply not looking forward to a lengthy car ride.  M.B. says that J.B. does become excited at the prospect of seeing C.E.J.

[137]     M.B. and C.B.B. are the most significant persons in J.B.’s life.

[138]     Although J.B. is developing bonds with B.J.’s family, they are nascent.  J.B. now has a little brother as a result of C.B.B.’s relationship with B.J.  I have no doubt he loves his little brother and I expect their relationship will develop and flourish over the years.

[139]     On the evidence before me, I find that J.B.’s relationship with his extended family in Houston is far stronger than his fledgling relationship with B.J.’s family. 

[140]     J.B. also has a strong bond with M.B.’s partner, A.S.

[141]     Throughout his young life J.B. has been cared for by M.B. and C.B.B., their respective partners, and extended family.  From October 2015 to October 2016, C.B.B. and M.B. shared parenting relatively equally.  Since November 2016, M.B. has been J.B.’s primary care giver and C.B.B. has had parenting time every second weekend.

[142]     On [omitted for publication], J.B. will be six years old.  Since birth he has had to cope with a significant number of transitions.  In particular:

[143]     C.B.B. proposes that at the end of this month, J.B. return to live with her full time on the Farm, re-enrol in [omitted for publication] Elementary and spend alternate weekends and blocks of holiday time with M.B.

[144]     Although J.B. presents as a happy and reasonably adaptable little boy, common sense teaches us there is a limit to how many transitions a child can endure before destabilizing.  J.B. appears to have stability in his present circumstances.  In Merriman v. Merriman, 2016 BCSC 1505 (CanLII), Justice Tindale held that in all things being equal, the child’s need for stability in that case tipped the balance against relocation.

[145]     M.B. and C.B.B. both have the capacity, interest, commitment and love to effectively exercise their parenting responsibilities to J.B.  

[146]     C.B.B. argues because she does not have to work outside the home, she is available to parent J.B. when he is not in school.  She says because of his multiple business interests, M.B. has little time for J.B.  M.B. argues that because C.B.B. does not work she is dependent upon the man in her life to support her, and that man has changed three times since J.B. was born.

[147]     There has been much time spent in these proceedings addressing C.B.B.’s smoking and drinking.  As M.B. does not smoke and rarely drinks, his habits in that regard are not in issue.  I am not persuaded that C.B.B. or B.J. drink enough to be a factor in the decision I have to make.  As to smoking, if C.B.B. does smoke in J.B.’s presence, then it must stop.

[148]     M.B. has divested himself of some of his work obligations in order to have more time with J.B.  In his October 6, 2016 Affidavit, M.B. said he had recently quit his job as a heavy equipment operator at [omitted for publication] to focus on [omitted for publication], which gives him more time at home.  M.B. says it is because he owns his own business he has flexibility in his work schedule.  As much as possible he reserves long distance towing jobs and other projects for the times when J.B. is with C.B.B.  M.B. wakes J.B., feeds him breakfast and takes him to school.  M.B. is always home for dinner and often picks J.B. up after school.  When he is at home, M.B.’s time is devoted to J.B.  During his parenting time when J.B. is present and not in school, M.B. engages in a variety of indoor and seasonal outdoor activities with him.

[149]     Although C.B.B. does not work outside the home, she has responsibility for a new born baby, farm chores, and household duties without modern conveniences or apparently, even indoor plumbing.  C.B.B. says that on the farm, they get up early, work hard and go to bed early. 

[150]     I am troubled by the fact that C.B.B. does not call J.B. while he is at M.B.’s residence.  I question if the cell service at the Farm is as robust as B.J. claims.  I am also confused by the inconsistent information M.B. has received concerning communicating with J.B. by electronic media when he is at the Farm.

[151]     There is no evidence of family violence.

[152]     In this case, I am heartened by the fact that from the time they separated until C.B.B. relocated J.B. to the Farm, the parties parented J.B. pursuant to a Separation Agreement without having to seek assistance from the court.  Still, I am somewhat troubled by C.B.B.’s lack of candour and her reluctance to have M.B. go to the Farm to drop off J.B.  Nevertheless, I am confident that in the future M.B. and C.B.B. will cooperate with one another for J.B.’s best interests.

[153]     There are no other civil or criminal proceedings relevant to J.B.’s safety, security or well-being.

[154]     Neither M.B. nor C.B.B. nor their respective partners have demonstrated any bitterness or spitefulness in these proceedings.  To the contrary, I found the parties to be reasonably fair and supportive of one another.  In this respect they must be commended for their civility as this is critical to effectively co-parenting J.B.

[155]     If M.B. and C.B.B. continued to live within a reasonable commute, I have no doubt they would have continued to share parenting time with J.B. as they had done in the past.  Now they live 353 kilometres apart and they can no longer share parenting time equally.  J.B. has to go to school.  To do so, he has to live primarily with one parent or the other.  It is unfair and unsafe to require J.B. to spend ten hours a week in a car transitioning between Houston and Prince George.

[156]     In his closing submissions, Mr. Hutchinson said:

[157]     I agree, except that J.B. is not a young man, he is a little boy, not yet six years old, who is starting grade [omitted for publication] this September.  He is showing signs of anxiety.  He appears to have a learning disability and needs the assistance of a speech therapist.  In my view, J.B.’s need for stability and emotional well-being would be seriously disrupted by a further relocation.  J.B. is settled and thriving in M.B.’s care in Houston and I do not believe it in his best interest to be relocated to the Farm.

[158]     I find that it is in J.B.’s best interest to reside in Houston in this father’s care with C.B.B. having parenting time with J.B. as set out below.

[159]     I allow M.B.’s application for guardianship, an allocation of parenting responsibilities and an order that J.B. reside primarily with him in Houston, B.C.

[160]     I allow C.B.B.’s application for guardianship, parenting time and an allocation of parenting responsibilities.

[161]     I dismiss C.B.B.’s application to set aside the Separation Agreement, except as modified by this order.

[162]     I adjourn M.B. and C.B.B.’s respective applications for child support.

[163]     I make the following orders: