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P.F.D. v. C.A.M., 2021 BCPC 138 (CanLII)

Date:
2021-05-06
File number:
F18515
Citation:
P.F.D. v. C.A.M., 2021 BCPC 138 (CanLII), <https://canlii.ca/t/jg2fx>, retrieved on 2024-03-28

Citation:

P.F.D. v. C.A.M.

 

2021 BCPC 138

Date:

20210506

File No:

F18515

Registry:

Abbotsford

 

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

IN THE MATTER OF

THE FAMILY LAW ACT, S.B.C. 2011 c. 25

 

 

 

 

BETWEEN:

P.F.D.

APPLICANT

 

AND:

C.A.M.

RESPONDENT

 

 

 

 

ORAL REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE G.J. BROWN



 

Counsel for P.F.D.,

appearing by teleconference:

N. Cooper

Counsel for C.A.M.,

appearing by videoconference:

A. Gray

Place of Hearing:

Abbotsford, B.C.

Date of Hearing:

January 11, 21, March 17, April 7, 2021

Date of Judgment:

May 6, 2021


[1]         THE COURT: These are my reasons for judgment in the matter of P.F.D. versus C.A.M.

Introduction

[2]         This case concerns the best interests of two children: N. who is five, and H. who is three. The father, P.F.D., seeks to enforce court orders prohibiting the relocation of the children from the Fraser Valley to Kelowna, and he ultimately wants shared parenting time. The mother, C.A.M., wants an order allowing the children to be relocated to Kelowna.

[3]         The case is a problematic one in that the mother has already contravened interim court orders by moving the children to Kelowna where her fiancé resides. She has been the children's primary caregiver, but they were raised in the Lower Mainland and most of their extended family is there.

[4]         On an interim basis, the father was granted court-ordered parenting time with the children every other weekend as well as FaceTime/phone visits, but the mother's move and other factors have completely disrupted the father's parenting time. Between June of 2020 and January of 2021, Mr. D. had no in-person visits with the children. Between October 3rd of 2020 and January 4th of 2021, he was not able to speak with the children. He has not seen them on Father's Day for two years in a row.

[5]         When Mr. D. does exercise his parenting time, he has to visit the children at his mother's home in Chilliwack because he has been living on a mezzanine above his automotive detailing business. Housing has been an issue for him.

Issues

[6]         Although Mr. D. has been characterized as a pushover, he steadfastly opposes the change of the children's residence from the Fraser Valley to Kelowna. He submits the move is not in the children's best interests and he challenges the reasons for the move. Mr. D. seeks that both parents be named guardians, which is not opposed, but he also seeks parenting time on a three day/four day split in favour of Ms. M.

[7]         Ms. M. seeks to change the children's residence to Kelowna and to set aside interim orders prohibiting the move. These parties have no prior final orders or agreements, so s. 46 of the Family Law Act applies. I have often wondered why parties in this position cannot take advantage of the more comprehensive relocation provisions in Division 6 of the FLA, especially where there are informal parenting arrangements in place, but my role is not to question the legislation but simply to apply it.

[8]         These moving cases are always troubling. As Master Keighley said in the case of L.L.J. v. E.J., 2013 BCSC 1233:

Almost inevitably, someone’s heart is broken no matter what the outcome of the application.

[9]         The only thing I can say here is that I am deciding on a move to the Okanagan which is not as great a distance as in many relocation cases.

[10]      I am governed only by the children's best interests. I reiterate that the mother's position is fraught with difficulties, as she moved the children in contravention of interim orders and the father's parenting time has been abysmal. That said, Mr. D. acknowledges that Ms. M. is a good mother and she has been the primary caregiver.

[11]      His own application for equal parenting time is a bit of a hurdle as he has had housing issues and he has rarely had the children overnight, although the latter problem is not one of his own making. He does have the support of his parents in Chilliwack and he expects to secure housing shortly.

Background

[12]      Mr. D. and Ms. M. were in an eight year marriage-like relationship and they separated on January 27, 2019. N. is five and was born on [omitted for publication] and H. is three and was born on [omitted for publication].

[13]      Ms. M. was the primary caregiver of the children but Mr. D. indicated he cared for the children in the morning as he worked afternoons. He described N. as very much a "daddy's boy" during the relationship.

[14]      Mr. D. now works at his automotive detailing business in Abbotsford, B.C. and Ms. M. has a pet food company with business in the Lower Mainland, Kelowna and elsewhere.

[15]      The children were raised in the Abbotsford and Chilliwack area and most of the extended family lives in that region. Following separation, Mr. D. did not have a fixed parenting time schedule and he rarely had overnight visits. He also has a 10-year-old son, C., who lives nearby and visited N. and H.

[16]      Shortly after separation, Ms. M. entered into a new relationship with a 23-year-old man named B.B. Mr. B. lives in Kelowna, and he and Ms. M. have been engaged since July 27, 2019.

[17]      Mr. D. has received text communications from Ms. M. of her possible break up with Mr. B. in both April and September of 2020, however, they appear to have reconciled. They travelled to Alberta, and Mr. D. is concerned that the children travelled with them in contravention of interim orders.

[18]      On June 27, 2019, Ms. M. sent a series of texts discussing the move from the Lower Mainland to Kelowna. She gave notice to her landlord in the Lower Mainland and left that property around August 1, 2019.

[19]      Mr. D. became increasingly concerned that his parenting time with the children was being curtailed, and in June of 2019 the children celebrated Father's Day with Mr. B., not Mr. D. On Father's Day in 2020, Mr. D. again had no parenting time although Ms. M. was in the Lower Mainland area during that period.

Order Prohibiting Relocation

[20]      After considering Ms. M.'s plans to move with the children to Kelowna, Mr. D. applied for and obtained an order on August 8, 2019, prohibiting relocation of the residence of the children outside the Greater Vancouver Regional District, including Abbotsford and Chilliwack. This order was in the form of a protection order.

[21]      In a separate order on the same date of August 8, 2019, Mr. D. was granted parenting time on alternating weekends, but he was to exercise the parenting time at his mother's residence in Chilliwack. Ms. M. had a lawyer, whereas Mr. D. was then self-represented.

[22]      On August 20, 2019, a further order was granted, by consent, requiring notice to the other parent for any travel with the children outside the Lower Mainland for more than 24 hours. There was also an order that if either party was unavailable to care for the children during their parenting time, the other party had first right to care for the children. Both parties had counsel by this juncture.

[23]      By December of 2019, Mr. D. had many reasons to believe that Ms. M. had moved with the children full-time to Kelowna. Ms. M. always referred to "coming down to Abbotsford." A truck driver confirmed with Mr. D. that he had moved her belongings to Kelowna. That information is based on hearsay, but Facebook posts suggested Ms. M. was living full-time with Mr. B. and the children in Kelowna.

[24]      For her part, Ms. M. indicated that she had been residing in Kelowna part‑time even before the August 2020 orders, but she also maintained an address with her mother in Abbotsford.

[25]      Mr. D. did not get Christmas parenting time for 2019 until January 5, 2020. At this time, many inquiries from Mr. D.'s counsel about the location of the children went unanswered.

[26]      Due to COVID-19 concerns, the parties did agree to temporarily suspend Mr. D.'s in-person parenting time in March of 2020. N. has some breathing issues. However, Mr. D. felt Ms. M. continued to make little effort to facilitate communication with his children. Between June 15, 2020 and October 15, 2020, Mr. D. was only able to secure one phone visit on October 3, 2020. He had called more than 40 times to speak with the children, but Ms. M. said she had troubles with her phone. Mr. D. was able to have Facebook calls with the children but no more than three times per month.

[27]      Mr. D. had no idea where the children lived, and his last in-person visit with the children was in June of 2020.

Finding Ms. M. In Breach

[28]      On November 30, 2020, I presided over an interim application and I made a finding that Ms. M. had breached the August 8th and August 20th, 2019 orders by relocating the children to Kelowna. I ordered that she pay Mr. D. $500. Nothing I have read or heard in this present proceeding would cause me to reconsider that finding. Simply put, Ms. M. flagrantly breached the court orders prohibiting both relocation of the children and travelling with them without notice.

[29]      Ms. M. now concedes the children have been living in West Kelowna since the summer of 2020.

[30]      In my November 30, 2020 order, I granted Mr. D. extensive Christmas holiday parenting time which was again to occur at his parents' home in Chilliwack unless he secured appropriate housing. He was still living on a mezzanine above his auto detailing business. Ms. M. was responsible for transporting the children to at least Hope, B.C.

[31]      The father's Christmas holiday visits ordered by me on November 30, 2020 did not occur for various reasons. He was told by Ms. M. that her grandmother wanted one last Christmas with the children. Thereafter, Ms. M. took the position that the Provincial Health directives did not allow travel between households, although Mr. D. lived alone and he and his mother were part of his core bubble. Mr. D.'s lawyer asserted court-ordered parenting time was essential travel (as of December 2020 and January 2021) and I agree.

[32]      Sometime after December 11, 2020, Mr. D. was advised that Ms. M.'s entire household was sick and that N. was unable to travel. Mr. D. ultimately relented and gave up his in-person visits under my order. He only had one phone FaceTime visit on January 4, 2021. Again, his last in-person visit was back in June of 2020.

[33]      After a court appearance on January 11, 2021, Ms. M. did offer to pay for accommodation for Mr. D. if he wished to go to Kelowna to see the children. Mr. D. declined.

Ongoing Problems with Father's Parenting Time

[34]      On January 21, 2021, I adjourned the trial of this matter midstream to allow for further affidavit material, but Ms. M. was subject to a penalty. When this trial was originally scheduled, it was agreed that evidence could be adduced by affidavit with cross‑examination and updates to occur viva voce. I permitted this approach as it is allowed under Rule 13(3) of the Provincial Court (Family) Rules.

[35]      In my order of January 21, 2021, I ordered in-person parenting time for Mr. D. every second weekend with Ms. M. being responsible to transport the children to Chilliwack. I also ordered FaceTime visits for the father every day. The in‑person parenting time was to occur at the homes of Mr. D.'s mother or sister unless he had suitable housing.

[36]      Once again, the parenting time did not occur as court ordered. Mr. D. did get in-person parenting time from January 29 to 31, 2021. He took the children to Sumas Mountain and built a fire with a female friend, Ms. S. Ms. M. was concerned about the fire given N.'s asthma, and she felt Ms. S. was not part of Mr. D.'s bubble.

[37]      The February 12, 2021 in-person weekend visit did not occur as the Coquihalla Highway was impassable. Mr. D. was also in the process of being evicted from his shop.

[38]      The February 26, 2021 weekend visit did not proceed as ordered. On February 26th, Mr. D. preferred only daytime parenting time as he was cleaning out his shop. On February 27th, Mr. D. received a message from Ms. M.'s father that he was an hour late, which is denied, but communication broke down after that.

[39]      The in-person visit on March 12, 2021 did not occur because Ms. M. was not willing to drop the children off at the home of Mr. D.'s mother unless he was present. No visit happened the next day because the children had a poor sleep. On March 14, 2021, Mr. D. drove all the way to Kelowna to see the children, but when he called Ms. M. she never responded until the Monday morning.

[40]      Under my last order, Mr. D. only got 10 of a possible 54 FaceTime visits. Allegations are made both ways about poor communication and not answering the phone.

Domestic Violence

[41]      Ms. M. alleged that Mr. D. choked her in January of 2019 and she says that she chose not to proceed with criminal charges. Mr. D. only acknowledges that there was a heated exchange and some tapping and flicking with his fingers. He did agree to leave the family home following the incident.

[42]      Ms. M. further alleges that in the same time period Mr. D. held H. upside down by her feet. Mr. D. steadfastly denies that the incident occurred, and he notes that no agency such as the Ministry intervened to restrict his visits with the children.

Financial Circumstances

[43]      As previously discussed, Mr. D. was operating his auto detailing business in Abbotsford and he lived in a mezzanine above the business. I note he pays child support for his older child, C., but nothing for N. and H. Mr. D.'s business will be, or has now, relocated and he hopes to secure housing very shortly.

[44]      Ms. M. runs a pet food business called [omitted for publication]. That business sells pet food primarily to [omitted for publication] in Kelowna, but Ms. M. previously conducted that business from the Fraser Valley where she had other clients. Ms. M. submits that it is far preferable for her to have in‑person contact with [omitted for publication] in Kelowna, and she can attend her sublet space there to stock her product.

[45]      At this time, Ms. M. only works about one day per week, making treats, attending [omitted for publication], and doing the books. There is an email wherein Ms. M. claims to have sold the company, but she says she took on a partner who manages the business in the Lower Mainland. Ms. M. was also concerned about the competition from Ms. S., Mr. D.'s friend, in the Lower Mainland. However, it appears that Ms. S. no longer sells raw dog and cat food in 2021.

[46]      Ms. M. obviously relies on the income received by her fiancé.

Current Circumstances and Positions

[47]      Ms. M. concedes that she has been living in West Kelowna since August 1, 2020. She resides there with the children and Mr. B. Her family lives in a nice house where each child has their own bedroom and there is a large yard. The home is owned by Mr. B.'s mother so they pay no rent, only utilities and maintenance.

[48]      According to Ms. M., Mr. B. has a good relationship with the children. He is in construction, earning $2,900 per month. As well, he receives an ICBC settlement of almost the same sum each month.

[49]      N. is on a waitlist for kindergarten in Kelowna, and he started school in January of 2021 through eSchoolBC. H. will attend [omitted for publication] in September of 2021 if the move is permitted.

[50]      Ms. M. believes that Mr. D. is opposed to the move largely because of her relationship with Mr. B. She also submits that Mr. D. was not an involved parent and his housing has not been appropriate for the children.

[51]      Mr. D. submits that he has been systematically cut out of the children's lives. Since Ms. M.'s move to Kelowna, he has had very few visits in person or electronically. He never knew her address until recently, and he did not consent to N. being enrolled in kindergarten in the Kelowna area. He has not been kept apprised about the children's dental issues.

[52]      Mr. D. recognizes Ms. M. is a good mother, although he has raised concerns about her ability to keep her house clean and to follow through with the children's vaccinations.

[53]      Mr. D. indicates he soon will have suitable housing for the children. He says he was much more involved in parenting N. and H. than he was with his older son, C. C. and N. have a tight bond.

[54]      Mr. D. gave evidence that the children were very fond of his parents who lived in Chilliwack, but that contact has virtually stopped. Mr. D.'s parents, his sister and her family all live in the Lower Mainland, as does Ms. M.'s parents, her sister and her brother. Moreover, his son C. lives in the Lower Mainland.

Determining Parenting Arrangements and the Relocation Issue

[55]      Ms. M. seeks a court order to relocate with the children to Kelowna and, by implication, she seeks primary residence.

[56]      Mr. D. opposes the relocation and he seeks guardianship orders along with shared parenting time.

[57]      Section 46 of the FLA governs the relocation issue because there are no agreements or court orders respecting parenting arrangements, other than the interim orders addressing relocation. The other prerequisites set out in s. 46(1) are met here because there are outstanding applications for parenting arrangements, and the mother's plan to move to Kelowna can reasonably be expected to have a significant impact on Mr. D.'s relationship with the children.

[58]      Consequently, I must determine the parenting arrangements that would be in the best interests of the children under s. 46(2) which states:

To determine the parenting arrangements that would be in the best interests of the child in the circumstances set out in subsection (1) of this section, the court

(a) must consider, in addition to the factors set out in section 37 (2) [best interests of child], the reasons for the change in the location of the child's residence, and

(b) must not consider whether the guardian who is planning to move would do so without the child.

[59]      When determining the best interests of the children, s. 37(2) requires me to examine the children's health and emotional wellbeing, their views (they are too young in this case), the nature and strengths of the relationships between the children and others, the history of their care, and their need for stability. I must also examine the abilities of the guardians to exercise their parental responsibilities, the impact of family violence, and the appropriateness of arrangements that require the guardians to cooperate.

[60]      The B.C. Court of Appeal case of Duggan v. White, 2019 BCJ No. 1010 considers s. 46 and s. 37 of the FLA. It is amply clear that a court must consider the reasons for the move under s. 46(2)(a), and the reasons for the move ought not to be considered through the lens of necessity. However, the reasons for the move should at least meet the standards of reasonableness and good faith.

[61]      Our Court of Appeal in Duggan goes on to indicate that a presumption in favour of the status quo can lead to an incomplete analysis of the best interests of the children. If a judge mistakenly relies on a parent's willingness to stay behind for the sake of the children, the status quo often becomes too attractive an option.

[62]      I must point out that the Duggan case is referring to the status quo for the children prior to a move. That should not become a default position. In the case at bar, however, Ms. M. created a new status quo by moving the children in breach of court orders. That new status quo, in my view, is highly problematic.

[63]      Importantly, the Court of Appeal in Duggan also followed the approach that a blended analysis is required where a plan to relocate children comes before the court together with an initial application to determine parenting arrangements. That is the case here. I ought not to decide the relocation issue independently from the overall question of parenting arrangements.

[64]      Based on the FLA and the case law, I will be conducting a blended analysis of Ms. M.'s plan to relocate the children to Kelowna with a determination of the parenting arrangements which serve the best interests of N. and H.

[65]      Concerning Ms. M.'s reasons for moving the children to Kelowna, I conclude that they do not meet the standard of good faith or reasonableness. Ms. M. flagrantly breached the order granted August 8, 2019 prohibiting relocation of the children's residence outside Greater Vancouver. She also breached a second order granted August 20, 2019, requiring notice to travel with the children outside the Lower Mainland.

[66]      Ms. M. moved part-time to Kelowna as early as August of 2019 and the evidence suggests she was living full-time in Kelowna with the children and her fiancé as early as December of 2019. In her affidavit, filed January 21, 2021, Ms. M. concedes that she has been living with the children in the Kelowna home since August 1, 2020.

[67]      Mr. D. did not know the address in West Kelowna until very recently, despite numerous inquiries by his counsel. Mr. D. was not consulted about enrolling N. in kindergarten in Kelowna, or enrolling H. in daycare there.

[68]      Following the principles in L.J.R. v. S.W.R., 2013 BCSC 1344, endorsing the new status quo in Kelowna would avoid inevitable turmoil that will be caused by having to re-establish the children in the Fraser Valley. However, parties seeking to relocate children cannot gain advantage by carrying out the relocation in advance of or in contravention of court orders.

[69]      Matters were made worse here because Mr. D.'s role as a father greatly diminished once the children moved to Kelowna. He has not seen the children for Father's Day two years in a row, and his only in-person visits occurred in June of 2020 and January of 2021. The virtual visits have been minimal. It is true that the father reluctantly gave up some visits but, in general, the children's move to Kelowna has only ensured that his role as a parent was marginalized.

[70]      I was especially unimpressed with the mother's lack of follow-through with the father's parenting time under the November 30, 2020 and January 21, 2021 orders. I fail to understand why Ms. M. would not drop off the children at his parents' home on March 12, 2021, even if he was not present. Lack of communication cannot explain all of these visitation problems.

[71]      Ms. M.'s decision to move the children to Kelowna was not a reasonable one. The move served her interests more than the best interests of the children. She wanted to live with her boyfriend, who became her fiancé, but she effectively cut off the father and extended family. I appreciate that Ms. M. has secured a nice home for the children in Kelowna. She also lives there rent free and her fiancé has a decent income. However, there was no evidence to suggest that Ms. M. was having housing struggles in the Lower Mainland or that the children were languishing. Of course, Mr. D. should have been paying child support. I was concerned that Ms. M. herself referred to two possible breakups with her fiancé.

[72]      I note that Ms. M. was able to conduct her pet food business from the Fraser Valley, and it is very much a part-time venture in any event. No financial documents were provided to show the profitability of the pet food business.

[73]      When I examine the children's health and emotional well-being, their need for stability, and the history of their care, I accept that Ms. M. was the primary caregiver. However, these children were raised in the Lower Mainland. Mr. D. played a significant and active role in their lives, and N. was daddy's boy until the father's parenting time unravelled with the move. N. also has a bond with half half brother, C.

[74]      The steps taken by Ms. M. have completely disrupted the children's bond with Mr. D. In fact, she appears to have replaced Mr. D. with her fiancé as a father figure, despite Mr. D.'s many requests for visits and information about the whereabouts of his children.

[75]      When I analyze the nature of the relationship between the children and significant others, I again conclude that Ms. M.'s move to Kelowna eroded the children's relationship with the father and the extended family in the Lower Mainland. That extended family includes grandparents on both sides.

[76]      It was my hope that the orders of November 30, 2020 and January 21, 2021 would have re-established some regularity of visits for the father but that was not the case. Reasons for lack of visits ranged from pandemic restrictions to inability to communicate, but the unsanctioned move to Kelowna resulted in a father who rarely saw his children. A visit in June 2020 and January 2021 is wholly unsatisfactory.

[77]      I recognize that Mr. D. was not the primary caregiver and housing has been an issue for him. However, with the assistance of his mother, he attempted to sustain as strong a bond with the children as was possible in these trying circumstances.

[78]      I do not see domestic violence as a major factor. Mr. D. was never charged with an offence and the Ministry was never involved. Mr. D. does not present as a forceful person. If anything, Mr. D. has sometimes been reluctant to enforce his parenting time.

Conclusion

[79]      Taking into account all the evidence and the best interests of the children, Ms. M.'s application to relocate the children to Kelowna is denied. I appreciate that the children will need some time to transition back to the Fraser Valley, especially given housing and schooling issues. The children's residence in the Lower Mainland should be re-established by June 30, 2021.

[80]      In my analysis above, I did not consider whether Ms. M. would move or remain in Kelowna if the children's relocation was not permitted, as that consideration is not allowed under s. 46(2)(b) of the FLA. However, I must act in the best interests of the children when making my orders, and my orders first contemplate Ms. M. returning to the Lower Mainland and assuming her role as the primary caregiver.

[81]      Mr. D. will have parenting time every second weekend from Friday at 3:00 p.m. to Sunday at 6:00 p.m., to be extended by holidays, professional development days. I envision this parenting time increasing over time as he re-establishes routines with the children. Mr. D. will also have parenting time for one half of the summer holiday, Christmas holiday and spring break.

[82]      In the event Ms. M. does not return to the Lower Mainland when the children return there, Mr. D. will have much more parenting time than first anticipated. With the assistance of extended family, I am confident that such a parenting arrangement will serve the children's best interests. In this scenario, counsel will have leave to appear before me for directions.

[83]      Mr. D. has missed a huge amount of parenting time but counsel concede that three weeks of make-up parenting time is workable.

Orders

[84]      Based on the above analysis, this is my final order:

[85]      Upon the court being advised that the name and birth date of each child is as follows: N.D., born [omitted for publication]; H.D., born [omitted for publication] (the children).

[86]      The court is satisfied that C.A.M. and P.F.D. are the guardians of the children under s. 39(1) of the Family Law Act (FLA).

[87]      Under s. 40(2) of the FLA, the guardians will share equally all parental responsibilities for the children as set out in s. 41 of the FLA.

[88]      C.A.M.'s application to relocate the residence of the children to Kelowna is dismissed.

[89]      Under s. 64(1) of the FLA, as of June 30, 2021, C.A.M. will return the children to the Lower Mainland, and neither party will change the residence of the children from the Lower Mainland of British Columbia, which includes Abbotsford and Chilliwack.

[90]      In the event C.A.M. returns to the Lower Mainland by June 30, 2021:

a)   The children will primarily reside with her.

b)   P.F.D. will have parenting time every second weekend from Friday at 3:00 p.m. to Sunday at 6:00 p.m. If the day preceding or following the weekend is a holiday or professional development day, the parenting time will include that extra day.

c)   P.F.D. will have parenting time for one half of the summer school holiday, one half the Christmas school holiday, and one half of the school spring break with the dates to be arranged between the parties by text or email.

[91]      In the event C.A.M. does not return to the Lower Mainland by June 30, 2021, the children will reside primarily with P.F.D. and the parties are at liberty to apply for further orders before Judge G.J. Brown.

[92]      P.F.D. will have compensatory parenting time for three weeks, to be exercised by March 1, 2022 and arranged between the parties by text or email.

(REASONS FOR JUDGMENT CONCLUDED)