IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         The Applicant R.N. and the Respondent J.J. are the parents of two young sons: M.M.A.J., born [omitted for publication], and J.E.J., born [omitted for publication]. The parties lived together from 2014 until August of 2020 when they separated. The reasons for their break-up leaves no realistic hope of reconciliation and both parties acknowledge that.

[2]         In October of 2020, the Applicant took the children and went to Ontario to be with her family. She says that this was not intended to be a permanent relocation, but the Respondent is skeptical about this. In November of 2020, the Applicant notified the Respondent that it was now her intention to permanently relocate the children to Ontario. She seeks an order permitting her to do so and the Respondent asks for an order compelling the Application to return the children to British Columbia.

[3]         The parties participated by telephone at a Family Case Conference on January 14, 2021 at which time a consent order was made for the Respondent to have virtual parenting time. At that time a one-day hearing was set for an order to be made on the Respondent’s application to prohibit the relocation of the children. At a pre-trial conference held on April 6, 2021, I ordered that the Applicant would be permitted to appear at trial virtually on MS Teams, only to later be reminded that such hearings required the approval of the Office of the Chief Judge. Approval was not granted and the parties participated in a hearing of the Respondent’s Notice of Motion by telephone. Neither party submitted any documents for the hearing.

[4]         At the conclusion of the hearing, decision was reserved and the parties were promised written reasons by no later than June 1, 2021. The distance between the parties and the fact that the outcome of the hearing would leave at least one party in a difficult position were factors that called for greater consideration of this matter, as opposed to simply making an immediate decision.

[5]         Following are the reasons for making the interim order that will be made on this Notice of Motion.

[6]         The Applicant is 31 years of age and the Respondent is 29. The two of them met in 2014 through the Respondent’s mother and they moved in together either in 2014 or 2015. (Each has a different recollection of when they began living together, but nothing turns on that.) Both describe their relationship as “off and on” for the first few years but both agree that they became more committed to one another with the birth of their two children.

[7]         The two children were born just over 18 months apart, with the older son being born on [omitted for publication] and the younger son born on [omitted for publication]. During the time that the parties were together, both parents worked outside of the home. The Applicant has continually worked as an ironworker and the Respondent worked as a community support worker. The Respondent took advantage of her maternity leave benefits and stayed home with the children shortly before and following the birth of each child. She was reaching the end of her maternity leave for the second child when she decided to go to Ontario with the children. She has remained there ever since.

[8]         The Applicant has done the bulk of the child care duties for the children, and has not worked outside of the home since the second child was born. This is not intended in any way to minimize the role that the Respondent has played in the lives of the children, but simply to recognize how the family roles were divided when the parties lived together. The Respondent acknowledged that because the children were so close in age, and so young, caring for the two of them together was challenging for him at times. He agrees that when the two of them were living together, he would sometimes get upset if the Applicant left the home before the youngest child was asleep, especially because the youngest child was colicky and was still being breast-fed.

[9]         The parties’ relationship broke down due to allegations of infidelity on the part of the Applicant. In August of 2020 the Respondent was told by a friend of the Applicant that he might not be the father of the second child, though the Applicant insists that the Respondent is in fact the father of both children. Neither party has asked for any order for paternity testing for the child.

[10]      The Applicant acknowledges some infidelity on her part, though no point was seen in exploring this issue any further, as it has little relevance to the best interests of the children, other than in how the parties react to it. The Applicant says that the Respondent is emotionally and physically abusive and she says that this is the reason why she wants the move the children to Ontario. The Respondent admits that his reaction to learning of the Applicant’s infidelity has caused him to act immaturely, rashly and angrily at times. He has also apologized for such conduct and has seen a counsellor to help him with dealing with the stress from the breakdown of the relationship.

[11]      After the parties separated and before the Applicant moved to Ontario, the Respondent would have parenting time with the children each weekday after work from 4:30 to 7:30 p.m. and on the weekends.

[12]      On September 8, 2020, the Applicant filed an application for guardianship, spousal support and child support. According to an affidavit of service, this was served on the Respondent the following day by another care worker. At some point later on (it is unclear when) the Application was amended with the notation “would like to relocate to Ontario where I have support and my family.” It is not clear from the court file when exactly this was done as the only stamp on the document is from the original application. The Respondent testified that he was never served with the amended application and there is no affidavit of service of that document on the court file. On October 30, 2020, the Applicant filed a request to adjourn this application generally.

[13]      The Applicant testified that she went to Ontario in October of 2020, with the intention on just going for a break. The Respondent says he was told by the Applicant that she would only be gone for two weeks. When she did not return he spoke to her on the phone and she told him that she was extending her visit. It appears clear from the amended application and the request of the file to be adjourned generally that the Applicant had planned to move the children to Ontario sometime before October 30^th.

[14]      The Applicant read into the record a text message exchange she had with the Respondent on October 20, 2021, which read as follows:

[15]      When the children did not return, the Respondent filed a Notice of Motion on December 8, 2020 to prevent the relocation of the children to Ontario. The matter was unable to be resolved at a Family Case Conference held on January 14, 2021, and at that time the presiding judge set a one day hearing for an interim order. It should be noted that this hearing, on which an order is now being made, was intended to be only an interim order and not a final one. What this means is that it is important that some sort of court order be put in place on matters affecting parenting time and where the children will reside, but that a more permanent plan will have to be put in place as to where the children will reside in the long term. The order that will now be made will only set the order of things until either the parties can agree on a more long-term solution to the problem, or until this court can impose one on them.

[16]      Since separating, both of the parties have availed themselves of counselling to help assist them in dealing with the consequences of the ending of their relationship. The Applicant saw a counsellor in Abbotsford before moving to Ontario. The Respondent also had a number of counselling sessions through his employee assistance program. He testified that for the first few sessions, he did not think that he was getting any benefit, but in later sessions, it seemed as if a breakthrough was being made and he felt that the counselling was beneficial.

[17]      This application concerns where the children should reside on an interim basis until a final order can be made. The parties themselves are free to live where they choose, but the Family Law Act prohibits one guardian from changing a child’s residence significantly without the consent of the other guardian or an order of the court.

[18]      The Applicant wants an order allowing the children to live in Ontario with her. She says that such an order is in the best interests of the children because now that she and the Respondent are separated, the children will have a better support network in Ontario than they will in British Columbia. She feels that the move is justified because in her opinion the Respondent is abusive. She says that if she is allowed to relocate the children to Ontario, the Respondent could see the children in Ontario and that she would pay for him to fly there to see them once every three months. She says that he could also continue to have video chats with the children.

[19]      The Respondent asks for an order prohibiting the relocation of the children to Ontario. He notes that if the Applicant is allowed to relocate the children, that will drastically affect his ability to maintain a relationship with the children, gradually eliminating the role he plays in their life. He says that the Applicant is capable of living in British Columbia, as she was doing before unilaterally deciding to move the children. He is not opposed to the children living primarily with the Applicant as long she is living some place where he can exercise his parenting time with the children without having to travel a great distance.

[20]      In cases where parental arrangements are in dispute, section 37 of the Family Law Act requires a court to make such orders based only on a consideration of what is in a child’s best interests. The parties in this case were told that at the conclusion of the hearing. The proper order to be made in this case isn’t the one which benefits either of them, but rather the one that benefits the children. To determine what is in the best interests of a child, section 37 mandates that all of the child's needs and circumstances must be considered, including the following:

[21]      For an order to be in the best interests of a child, it must consider how best to protect the child's physical, psychological and emotional safety, security and well-being. Section 37 goes on to state that the court making the order may consider a person's conduct only if it substantially affects one of the factors listed above.

[22]      If the court is satisfied of all of that, the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise.

[23]      Section 69 goes on to provide, in subsection (6), that for the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including these factors that are listed in the subsection:

[24]      In this case, the Applicant says that she wants to move the children to Ontario because she describes the Respondent as emotionally and verbally abusive. When asked directly, she acknowledged that there has been no physical abuse between the parties other than in an incident that took place over four years ago, and in that incident, it appears that both of the parties let their anger transition to pushing and shoving.

[25]      The Respondent himself acknowledges that he has said stupid and hurtful things to the Applicant for which he has later realized call for an apology. There are several difficulties however, that present themselves when one is asked to label the Respondent as abusive. Firstly, it is not alleged that he has been abusive directly towards the children. It would be fair to label any remarks by the Respondent to the children that are disparaging of their mother as abusive, and the evidence certainly suggests that the Respondent has done this on more than one occasion. The bulk of the Respondent’s inappropriate behaviour appears to be unconnected to the children, and more as a reaction to the hurtful actions of the Applicant.

[26]      Specifically, the Respondent has felt hurt firstly by her infidelity, and by being mocked by her friend about this. Secondly, he feels that he has reason to mistrust the Applicant after being led to believe that her taking the children to Ontario was intended to be short term, only to later discover that the children were not being returned. Whether or not the Applicant took the children to Ontario never intending to return, her amended application and the length of time she took to tell the Respondent that she had changed her mind about this certainly makes her denial appear suspicious.

[27]      It is unfair to characterize the Respondent as verbally abusive by nature, when the instances of his verbal inappropriateness can be attributed to specific causes that are the result of hurtful choices made by the Applicant. This is not to suggest that the Respondent’s inappropriate remarks are justified or excused, or that they should continue. However it is also unfair to suggest that his abusive conduct is at such a level as to justify the Applicant fleeing the province with the children.

[28]      The evidence suggests that the Respondent is aware of his wrongful conduct and realizes that this will have to change if he wants to have a more active role in the life of his children. His acknowledgement in his text message that he “said some stupid stuff” and that it was wrong for him to do so is a step in the right direction. He has also availed himself of counselling available through his employee assistance program. He was reasonable in coming to an arrangement outside of court to provide for the financial support of his family. He also conducted himself civilly and respectfully at the hearing of this matter, both towards the Court and towards the Applicant. (This comment applies equally to both parties who were each very respectful of one another and of the court process.)

[29]      In this case, the evidence suggests that the relocation of the children from British Columbia to Ontario was not made in good faith, as that term is used in section 69 of the Family Law Act. Firstly, the reasons for the proposed relocation suggest that the relocation was done more for the benefit of the Applicant than for the benefit of the children. Any verbal abuse on the part of the Respondent was not directed towards the children and concerned issues between the parties as spouses, not as parents. Even on the Applicant’s evidence, it does not appear to have been at a level that would justify the Applicant fleeing the province with the children.

[30]      Secondly, the proposed relocation is unlikely to enhance the general quality of life of the children. The Applicant left secure employment for an uncertain future. While the children will enjoy the benefit of increased contact with the Applicant’s family, this comes at the price of diminishment of their ability to grow up knowing their father and building a relationship with him. Although the Applicant states that the move will increase her own emotional well-being, this may not be true in the long run. Running from the consequences of one’s choices is not always better than confronting them directly.

[31]      Finally, there is reason to question whether or not proper notice of the proposed relocation was given under section 66. While the Applicant did send formal notice on November 30, 2020, by then she had been in Ontario with the children for over a month. It is possible that this was unintentional and that her decision to convert the trip from a vacation to a relocation was an afterthought. It is equally possible that this was a tactical decision to use self-help rather than following the legal process. The amended application shows that this was something that had previously been contemplated by her. Telling the Respondent that this was only supposed to be a two week visit when that does not appear to be the case only serves to injure trust between two adults who should be contemplating how they intend to co-parent now that they are living separate and apart.

[32]      For these reasons, the Applicant has failed to satisfy the court that the relocation is being made in good faith, as she is required to do under section 69. She has also failed to satisfy the court that she has proposed reasonable and workable arrangements to preserve the relationship between the child and the Respondent. At the commencement of her evidence she was proposing that the Respondent only be permitted to see the children at her home and that his time with the children be supervised. Later in her submissions, she proposed that the Respondent fly to Ontario once every three months to see the children. This is not a case where the Respondent’s conduct merits either supervised parenting time or that it be drastically reduced as the Applicant proposes.

[33]      The application for relocation is denied for these reasons. The Applicant will be afforded a reasonable period of time to return the children to the Abbotsford area, and will have until the end of June to re-establish herself here. If she fails to do so, the Respondent may apply to this court to have the Applicant removed as a guardian of the children until they are returned to British Columbia. This is a drastic remedy that would be imposed only if the Applicant was wilfully non-compliant with the order to return the child, transitioning such non-compliance from a civil matter potentially to a criminal one. In this case the parties present as reasonable people and it is highly unlikely that it would ever come to this.

[34]      The order now being made is an interim order, which will be in place until a final order can be made. The Respondent has never filed a Reply to the Application that he was served with. That Application is currently shown as “adjourned generally” so it will be up to the Applicant to decide if she wants to continue to operate under the terms of the order that is now being made, or if she intends to reopen these proceedings and proceed with her Application. In the latter case, she will be required to serve the Amended Application on the Respondent.

[35]      In the meantime, because the interim order will be in force for some time, and because the parties are currently not operating under any other court orders, this order will be more comprehensive than simply stating that the application prohibiting relocation is granted. The following order is now made: