B.C.B. v. W.D.J.B, 2022 BCPC 89 (CanLII)
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2022 BCPC 89 |
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Date: |
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File No: |
F17480 |
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Registry: |
Port Coquitlam |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
IN THE MATTER OF
THE FAMILY LAW ACT, S.B.C. 2011 c. 25
BETWEEN:
B.C.B.
APPLICANT
AND:
W.D.J.B
RESPONDENT
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE W. LEE
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Counsel for the Applicant: |
L. Allan |
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Counsel for the Respondent: |
A. Letwin |
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Place of Hearing: |
Port Coquitlam, B.C. |
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Date of Hearing: |
May 5, 2022 |
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Date of Judgment: |
May 19, 2022 |
Introduction
[1] B.C.B (“Ms. B.”) and W.D.J.B. (“Mr. B.”) are the parents of a 7-year-old child. For reasons of privacy, I will not refer to the child by her name.
[2] Ms. B. wishes to relocate with the child to Alberta. Mr. B. objects and seeks court orders for shared parental responsibilities and increased parenting time. Those issues are set for trial starting October 3, 2022.
[3] I am dealing with an application by Ms. B. to vary an interim order of Judge G. Smith dated August 23, 2021. This order prevented Ms. B. from travelling with the child outside B.C. and required Ms. B. to offer Mr. B. the first opportunity to care for the child should Ms. B. travel outside B.C. without the child.
The Evidence
[4] I have reviewed the following:
a) Views of the Child Report from Dr. Laura Mills dated June 7, 2021
b) Affidavit of Mr. B. filed November 16, 2021
c) Affidavit of Ms. B. filed November 16, 2021
d) Affidavit of Ms. B. filed April 4, 2022
e) Affidavit of Mr. B. filed April 20, 2022
f) Affidavit of Ms. B. filed May 3, 2022
Background
[5] The parties entered into a written agreement dated October 26, 2016 and filed October 27, 2016. The terms included the following:
a) The child will reside primarily with Ms. B.
b) Mr. B. will have parenting time on alternating weekends from Friday at 5:30 p.m. to Sunday at 5:30 p.m.
c) The parties will each have the ability to receive information about the child from third parties.
d) Ms. B. will have all other parental responsibilities.
[6] The court order made on September 7, 2017, by Judge McQuillan set out Mr. B.’s parenting time as follows:
a) Starting Friday, September 8, 2017, on alternating weekends from Friday at 5:30 p.m. until Sundays at 5:30 p.m.
b) Starting Friday, September 15, 2017, on alternating Fridays from 5:00 p.m. to 7:00 p.m.
[7] The court order made on December 12, 2017, by Judge McQuillan changed the Friday only parenting time schedule to 5:30 p.m. to 7:30 p.m. The alternating weekend (Friday to Sunday) schedule remained in place.
[8] At some point, the parties agreed to move the Friday only parenting time to a Wednesday. I was not told if this was the Wednesday just prior to Mr. B.’s weekend parenting time or the Wednesday following it.
[9] The August 21, 2018 consent order made by Judge McQuillan allowed Ms. B. to travel to Washington with the child for up to 48 hours without Mr. B.’s consent. Ms. B. could also travel internationally with the child without Mr. B.’s written consent if two weeks’ notice is given.
[10] Ms. B. met D.L. (“Mr. L.”) in 2011 and they started to date in 2020. In December 2020, Ms. B. and the child went to Alberta and the child was introduced to Mr. L.
[11] Ms. B. now wishes for the child and her to live with Mr. L. Ms. B. gave Mr. B. notice of an intention to relocate with the child to Alberta on December 18, 2020.
[12] In January 2021, Mr. B. filed applications to prohibit the relocation and to seek orders relating to parenting time and parental responsibilities. In February 2021, Ms. B. filed an application to seek permission to relocate.
[13] After Ms. B. gave the notice of an intent to relocate, she took the child to Alberta for multiple day visits in January, February, March, July and August 2021.
[14] The relocation issue then came for trial before Judge Smith on August 23, 2021. The trial did not proceed because Ms. B.’s legal counsel became ill and had to withdraw. An articled student appeared on behalf of new counsel for Ms. B. to request an adjournment.
[15] Judge Smith adjourned the trial. Counsel for Mr. B. requested as a term of the adjournment that the court prohibit Ms. B. from taking the child outside British Columbia, citing concerns that Ms. B. was travelling with the child during the midst of the COVID-19 pandemic. Judge Smith granted that request, ordering that neither party remove the child from British Columbia without the written permission of the other party. Judge Smith also ordered Ms. B. to notify Mr. B. if she was travelling outside B.C. without the child, in which case Mr. B. had the right to exercise parenting time with the child during Ms. B.’s trip. The parties referred to this as a “right of first refusal”.
[16] On January 13, 2021, Judge McQuillan set down for hearing Ms. B.’s application to set aside Judge Smith’s order preventing Ms. B. from taking the child outside B.C. and the right of first refusal. This hearing came before me on April 6, 2022. The hearing was adjourned at the request of Mr. B. Ms. B. had just retained Ms. Allan as counsel, and was seeking to rely on an affidavit that was only provided to Mr. B.’s counsel shortly before the hearing date.
[17] Affidavit evidence can only be relied upon if prior permission is granted by a judge. I refer to my decision in K.T. v. M.Z., 2022 BCPC 70, where I stated:
[21] Under the Provincial Court (Family) Rules, which were repealed May 17, 2021, Rule 13(3) required the court’s permission before evidence could be given by way of an affidavit. The current Provincial Court Family Rules do not contain an equivalent provision to s. 13(3) of the old Rules. However, Rule 112(1)(i)(iii) does allow a judge at a trial preparation conference to permit affidavit evidence at a trial. Rule 62(m) allows a judge to make a case management order as permitted under Rule 112(1). Rule 61 allows a judge to make a case management order at any time. It is therefore through this convoluted process that I am able to permit the use of affidavit evidence at trial.
[18] In granting the adjournment, I allowed the parties to rely on affidavit evidence and the application came back before me on May 5, 2022.
The Jurisdiction to Change, Suspend or Terminate an Interim Order
[19] Family Law Act s. 216(3) allows a court to change, suspend or terminate an interim order if satisfied that at least one of the following circumstances exists:
a) a change in circumstances has occurred since the interim order was made;
b) evidence of a substantial nature that was not available at the time the interim order was made has become available.
[20] The order made by Judge Smith was based on Ms. B. travelling with the child during the midst of the COVID-19 pandemic. Ms. B. had little opportunity to respond to this allegation as her representation that day was from an articled student sent to seek an adjournment. In any event, there has been a change of circumstances since Judge Smith’s order was made in that the child is now fully vaccinated. I also take judicial notice of the fact that, although COVID-19 remains a medical concern, restrictions have lessened significantly due to vaccinations and the current strain of the virus. Given these circumstances, I am satisfied s. 216(3) allows me to change, suspend or terminate Judge Smith’s order.
The Purpose of Interim Orders
[21] As stated in Kalafchi v. Yao, 2015 BCCA 524 at paragraph 14, interim orders are “intended to preserve the status quo pending the final resolution of the issues between the parties.”
[22] The decision P.D.B. v. A.J.B., 2020 ABQB 298 set out a number of useful considerations when making an interim order to preserve the status quo pending trial:
[18] I draw the following from these cases:
1. the overarching factor is the best interests of the child or children involved;
2. the status quo parenting is a factor in gauging the “best interests” interim parenting arrangement;
3. that includes both the pre- and post-separation status quo;
4. as between those two, the pre-separation status quo will usually be more significant (typically representing a longer period of parenting and the “baseline” for the family);
5. a parent’s agreement, after separation, to a particular interim arrangement, should not be treated as a waiver of the right to seek a different (longer-term) arrangement;
6. the significance of the post-separation status quo may be particularly be diminished where:
a) it is short-lived;
b) it resulted from one parent’s (i.e. unilateral) decision (e.g. moving with the child or children); or
c) it was affected by one parent’s inability, or reduced ability, to parent in the aftermath of the separation (e.g. arranging suitable accommodation and adjusting work schedules);
7. on the other hand, the longer the post-separation status quo, and particularly where it extends beyond the “immediate adjustments” stage, the more significance that status quo may acquire. (For example, in Sorensen v Cooney (cited above), the chambers judge and the Court of Appeal both focused exclusively on the post-separation period, which had run for three years);
8. on that aspect, a party may provide an explanation for apparent delay in applying for a parenting order i.e. other than simply agreement, or acquiescence, to a new status quo; and
9. the status quo parenting (in either period) may be difficult, if not impossible, to determine in a chambers setting e.g. because of conflicting evidence. In such case, it minimizes or even disappears as a factor.
[23] In making an interim order, I must be careful not to disrupt the status quo but the overriding focus remains the best interests of the child.
Analysis
[24] I am satisfied the status quo was established prior to December 18, 2020, when Ms. B. gave her notice of an intention to relocate. Ms. B. and Mr. L. started dating in 2020. The child met Mr. L. in December 2020. Following December 2020, Ms. B. made a number of trips to Alberta with the child. These trips were not indicative of the status quo since they came after the notice of intention to relocate.
[25] I must also consider a number of other matters.
[26] First, other than the right to receive information from third parties, Ms. B. has all parental responsibilities. This includes the right to travel with the child, and to determine how the child is cared for and educated.
[27] Second, since December 2020 Mr. B. has twice given permission for Ms. B. to take the child to Alberta. The most recent trip was from April 14-20, 2022. Based on this, there appears to be no concern that Ms. B. will leave B.C. with the child.
[28] Regarding the trips to Alberta, Mr. B. stated in his affidavit filed April 20, 2022:
23. I have agreed to allow [the child] to travel on a schedule which is similar to the amount of time I would be allowed to see [the child] if she moves to Alberta and is registered in school there. I think [the child] needs to have some idea of the length of time that she is going to have to wait to see me.
…..
26. I do not think it is unreasonable or unfair for me to approximate the same sort of parenting time schedule for travel for [the child] if the Applicant is proposing that [the child] see me on essentially the same schedule if she moves to Alberta. It also maintains the status quo for [the child] which was in place before the Applicant applied to move to Alberta.
[29] The focus for Mr. B. was to demonstrate to the child the effect of one possible parenting time arrangement if relocation is allowed.
[30] Third, the child is home-schooled by Ms. B. By Mr. B.’s own admission, there are challenges in carrying out the home schooling. Mr. B. stated in his affidavit filed April 20, 2022:
39. I have done my best to ensure that [the child] completes her schoolwork when she is with me. That is not, however, always easy. The Applicant is very demanding about [the child’s] schoolwork and [the child] often talks back to me, saying “I’m not doing it like Mommy” and has even refused to do some of her schoolwork when I have asked.
[31] Fourth, the travel restriction was put into place to deal with concerns relating to the COVID-19 pandemic. For the most part, those concerns no longer apply. The child has received two doses of a COVID-19 vaccine and the Public Health Officer warnings against travel in place at the time of the court order no longer exist.
[32] Ms. B. also alleged that she is a better caregiver for the child compared to Mr. B. and as such, the child should be with her during her travels. That is a question better left for trial, as it cannot be resolved based on affidavit evidence alone.
Decision
[33] Taking into account the various considerations set out above, I have concluded that Ms. B. should be permitted to travel with the child outside B.C. on certain terms.
[34] In arriving at this decision, I have placed the greatest weight on the following:
a) The primary purpose of Judge Smith’s order was to respond to the COVID-19 pandemic, which concerns are for the most part no longer applicable.
b) There is no concern that Ms. B. will refuse to return to B.C. with the child.
c) Since 2016, Ms. B. solely held the parental responsibility for the care and upbringing of the child, including the right to travel with the child.
[35] I will permit Ms. B. to travel outside B.C. with the child once per calendar month. It remains important that the child still maintain ties in British Columbia until the relocation issue is dealt with.
[36] For trips by Ms. B. outside B.C. without the child, the right of first refusal will still apply although I will clarify the terms. There has been no change of circumstances relating to the right of first refusal. If Ms. B. intends to travel without the child, the child should be with her father.
[37] Any trips with the child outside B.C. must not affect Mr. B.’s parenting time unless he agrees.
[38] This order is made without prejudice to any further court orders to prohibit or to permit the relocation of the child. In other words, any ties that the child develops to Alberta as a result of this order should not be a consideration for the trial judge when deciding whether to permit or to prevent the relocation.
Order
[39] My order is as follows:
(1) Paragraphs 1 and 6 of the order of The Honourable Judge G. Smith made August 23, 2021 are set aside.
(2) Ms. B. may travel with the child outside British Columbia on the following conditions:
a) The travel outside British Columbia shall not affect the parenting time of Mr. B., unless otherwise agreed to by the parties in writing.
b) Ms. B. may only travel with the child outside British Columbia once per calendar month.
(3) Mr. B. has the right to exercise parenting time with the child during such times when Ms. B. is travelling outside British Columbia without the child. Ms. B. will give written notice to Mr. B. at least seven (7) business days prior to any travel outside British Columbia without the child (the “Trip”). Upon receipt of such notice, Mr. B. will advise Ms. B. in writing within three (3) business days after receipt of the notice whether he will or will not exercise parenting time with the child during the Trip. If Mr. B. fails to notify Ms. B. as required, then he is deemed to have elected not to exercise parenting time with the child during the Trip.
(4) This order is made without prejudice to any further court orders to prohibit or to permit the relocation of the child.
Directions
[40] I direct Ms. Allan to prepare the form of order for approval by Ms. Letwin and to attend to filing the order with the court.
[41] I am no longer seized of this matter.
_____________________________
The Honourable Judge W. Lee
Provincial Court of British Columbia