Citation:	C.M.(1) v. C.M.(2)
	2022 BCPC 4
Date:		20220105
File No:		17978
Registry:		Quesnel

 

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

IN THE MATTER OF

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

 

 

 

 

BETWEEN:

C.M.(1)

APPLICANT

 

AND:

C.M.(2)

RESPONDENT

 

 

 

 

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE M.J. BRECKNELL

 

Counsel for the Applicant:		J. Rempel
Counsel for the Respondent:		H. Zetzsche
Place of Hearing:		Quesnel, B.C.
Date of Hearing:	July 4-7, 2021, and September 2, 2021
Date of Judgment:		January 5, 2022

INTRODUCTION

FAMILY HISTORY

LITIGATION HISTORY

a)   the Parties were recognized as guardians of the Children;

b)   the Parties are obliged to discuss and advise the other of any significant matters concerning the Children and to try to reach a consensus on those matters;

c)   the Parties were each permitted to obtain information about the Children from third parties;

d)   in the event either of the Children required emergency medical care the Party exercising parenting time would make the decision and immediately inform the other Party;

e)   the Parties would equally share parenting time with the Children and vary it as they saw fit from time to time;

f)     [C.M.(1)] would have contact with [A.M.L.M.] on the same schedule as his parenting time with the Children;

g)   [C.M.(1)] would pay child support to [C.M.(2)] for the Children and [A.M.L.M.] in the amount of $297 per month commencing on February 1, 2020;

h)   [C.M.(2)] would be entitled to apply for and receive any child tax benefits;

i)     the Parties would exchange income tax information for the previous tax year by June 1 of each year;

j)     the Parties were not to be under the influence of alcohol, marijuana or a controlled substance during parenting time or contact; and

k)   Neither Party would change the residence of the Children without the other Party’s approval.

(The January 2020 Order).

a)   each Party would have a minimum of a 4 day weekend of parenting time with the Children and contact with [A.M.L.M.];

b)    the exchange location for the weekend parenting time would be in Kamloops, BC;

c)    the Parties would equally share Christmas and Spring break school vacations;

d)   the Parties could change the parenting time schedule and exchange locations as agreed between them; and

e)   the issue of the relocation of the Children to North Vancouver be set for a four day trial.

PRE-SEPARATION LIFESTYLE

POST SEPARATION LIFESTYLE

THE PARTIES’ HEALTH

a)   commencing April 2019 she took a stress leave. In early May 2019 she made a suicide attempt by taking pills. She has been under the care of doctors since then;

b)   While she was in [omitted for publication] she was under the care of a doctor who prescribed anti-anxiety medication for a time which she has now stopped. She is also taking a prescription for ADHD. She remains under the care of a doctor in North Vancouver and has received a referral to a psychiatrist but has not yet been seen; and

c)   she now only uses marijuana recreationally and when the Children are not present. She has stopped using cigarettes, but vapes. She is a social user of alcohol.

THE PARTIES AS PARENTS

a)   In May 2021 he made insulting comments about the Children’s grandmother, J.M., when the Children were talking to C.M.(2). C.M.(1) described it as a one-time thing because he was frustrated;

b)   Driving with a friend on a rural property when the friend lost control of the vehicle, it crashed, he died and C.M.(1) was seriously injured and hospitalized. The Children were with C.M.(1) that day but not in the vehicle. She believes C.M.(1) was drinking alcohol that day and acting recklessly. The Children were very upset by what happened to C.M.(1);

c)   C.M.(1) has had a turbulent relationship with S.B. at times in the past that included heated verbal disputes and S.B. striking him. C.M.(1) acknowledged that those past behaviours occurred and were worrisome.

THE CHILDREN’S HEALTH

THE CHILDREN’S PERSONALITIES

a)   E.J.M.M. is a helpful and caring person with big feelings;

b)   S.P.M.M. is a funny and determined little guy. He loves to be outdoors and has a very close relationship with her daughter L.;

c)   The Children have a strong relationship with D.B. and S.B. There are lots of activities for the Children at the D.B. and S.B. home and S.B. helps them with school work.

PRESENT PARENTING TIME ARRANGEMENTS

a)   many of the long weekends throughout the year;

b)   a portion of the school Christmas Break, Spring Break, and Summer Break;

c)   most of the exchanges of the Children take place in Kamloops at a time and location arranged in advance between the Parties. On some occasions one Party may drive the entire distance between [omitted for publication] and North Vancouver; and

d)   electronic contact.

CHILDREN’S PRESENT ROUTINE

FUTURE PLANS FOR THE CHILDREN

C.M.(1)

a)   All long weekends including school professional development and non-instructional days;

b)   One half of Christmas Break, all of Spring Break, and a majority of the Summer Break;

c)   Exchange to occur in Kamloops as early on the first day and as late on the last day as is reasonable for the Children.

C.M.(2)

a)   they would have daily contact with their sister, A.M.L.M., and regular contact with their grandmother, J.M., and their aunt, M.D.;

b)   they would be closer to her father as West Kelowna is only a four hour drive from the North Vancouver compared to a six hour drive from [omitted for publication];

c)   there are more activities available for the Children in North Vancouver including many sports that are active all year round, children’s festivals, and skiing at three nearby mountains;

d)   there are many attractions in the Lower Mainland as well as the ocean, beaches, and boats;

e)   they would have access to cultural activities within her traditional Indigenous territory including fish harvesting, language lessons, dancing and drumming.

A.M.L.M.

C.M.(2)’S EDUCATION AND RELATED EMPLOYMENT

a)   it offered programming that would allow her to transfer her credits from her earlier education where other universities would not;

b)   by transferring there she could reach her educational goals quicker than if she attended other universities;

c)   a degree would permit her to work at a higher level in the early childhood education field and provide more opportunities with higher salaries;

d)   Capilano provides course content that would allow her to attain a degree and qualify her to attend other universities to obtain a Master’s degree. She was not certain what kind of grade point average she must maintain at Capilano in order to qualify for acceptance at those other universities including the University of British Columbia or Simon Fraser University.

INDIGENOUS HERITAGE

EXTENDED FAMILY

a)   His mother and step father, S.B. and D.B. who live on a rural acreage at [omitted for publication]. S.B. is a senior executive with the local school district and has been heavily involved in the care of the Children since their births. Since C.M.(2)’s move to North Vancouver, S.B. has assisted C.M.(1) in the Children’s care and transportation for school and other activities when he has to be at work. D.B. is self-employed in the silviculture and construction industries and his business ventures keep him working long hours most days. He sees the Children occasionally;

b)   His sister, B.M., her partner and her children, L. age 6 and J. age 2, live in [omitted for publication], a short drive south of [omitted for publication]. She is a nurse who works on a casual basis at the local hospital. The families see each other on at least a weekly basis. B.M. has cared for the Children many times both before and since the separation. The Children and their cousins get along well;

c)   His sister A.B.;

d)   His brother K.B. who lives in Edmonton, AB;

e)   His cousin C.G., her partner, A., and her five children who live on a country acreage in a rural area west of [omitted for publication]. Two of her children are about the same age as the Children. They see each other monthly. The Children enjoy going to the rural property because there are animals and nearby lakes; and

f)     His cousin A.S., her partner, J.S., and her three children, two who are now adults, and S.S., age 10. S.S. and the Children have play dates twice a month and see each other more in the summer.

a)   Her mother and stepfather, J.M. and G.D. who live in the [omitted for publication] area of Vancouver. Her mother works as an executive assistant for the [omitted for publication] and her stepfather is retired from the restaurant industry. They have been in a relationship for over 30 years and have resided in the same home during most of that time;

b)   Her father, M.M. who lived in [omitted for publication] until 2012 and now lives in West Kelowna, BC with his partner. His contact with the Children is mostly through telephone and gift giving and the occasional in person visit;

c)   Her sister, M.D. who is a visual artist and lives with her parents in Vancouver;

d)   Her sister S.F. who is an entrepreneur and lives in Victoria, BC;

e)   Her grandmother, M.S. who lives an assisted living facility in [omitted for publication]. She is a retired school teacher;

f)     Her aunt L.S. and her partner and their adult children who live in [omitted for publication]; and

g)   Her aunt R.A., her partner, T., and their three children, V., M.J., and E. who live in [omitted for publication]. One of the daughters is A.M.L.M.’s age and the others are older.

EXTENDED FAMILY RELATIONSHIPS

a)   J.M. and G.D. – J.M. has never lived in [omitted for publication]. She had past alcohol abuse issues. She was mean to C.M.(2) and they had a very turbulent relationship for many years. For many years J.M. wanted the family to move to Vancouver. She only came to [omitted for publication] one time, for his wedding to C.M.(2) but left before the reception;

b)   M.M. – M.M. used to live in [omitted for publication] and he was involved with the Children. He now lives in the Okanagan. They do have occasional contact at holiday times and he calls the Children on special occasions. He comes to [omitted for publication] occasionally to see his mother M.S.;

c)   M.D. – she lives with her mother and father, J.M. and G.D.;

d)   S.F. – S.F. is eight years older than C.M.(2) and lives in Victoria where she operates a vintage clothing business and is a tax preparer;

e)   M.S. – The Children see her occasionally but that has been curtailed during Covid;

f)     L.S. – She had regular contact with the Children since her move to [omitted for publication] in 2014. L.S. agreed to supervise his parenting time with the Children in 2019 when that was required due to allegations against him;

g)   R.A. – she and her partner and their children would see the Children at family events. R.A. and her partner also see the Children at school because they are school district employees;

h)   T. and S. – they have a new baby and visits have been limited due to Covid. There are plans for more visits.

ALTERNATE CAREGIVERS

S.B.

a)   she has been very involved with the Children from their birth and has assisted the Parties in the past with regard to their care, teaching, and transportation;

b)   she sees the Children on a daily basis because she often picks them up from school and cares for them until C.M.(1) gets off work and on many mornings she cares for them before they go to school;

c)   the Children have regularly spent time at her residence including many overnights. When they are with her they play at a variety of activities, ride their bicycles, get rides on a side-by-side ATV, walk to a nearby lake and explore her property and the provincial park it borders on;

d)   in the past she and C.M.(1) had challenges in their relationship. They were mostly due to the Parties poor financial planning, leaving her and her husband to financially assist in paying bills and providing groceries for the Parties and the Children. Her relationship with C.M.(1) is now stable because he has returned to acting in a financially responsible fashion; and

e)   she accepts that both of the Parties are suitable to parent the Children.

a)   although S.B. has a close and loving relationship with the Children her past interactions with C.M.(1) indicate that she has micromanaged his life and that causes friction between them; and

b)   S.B. has to allow C.M.(1) the opportunity to interact with the Children without everything having to be to her liking.

B.M.

a)   she sees the Children at least once per week and often picks them up after school so they can play with her children;

b)   she has been part of the Children’s lives since they were born and they have a strong bond with her children. L. and S.P.M.M. are very close and enjoy a number of activities together; and

c)   the Children have a very strong bond with their grandparents, D.B. and S.B. The Children are helped with their school work by S.B., and the D.B. and S.B. home has lots of indoor and outdoor activities that the Children enjoy.

M.D.

a)   she is 27, a high school graduate and is self-employed as a freelance artist. She resides with her parents in the [omitted for publication] area of Vancouver. She lives with her parents because;

                                                      i.        it is expensive to live on one’s own in Vancouver,

                                                   ii.        she assist her father with his medical appointments, and

                                                   iii.        she is Italian and such arrangements are not uncommon in their culture.

b)   she had little contact with C.M.(2) before she moved to Vancouver, except on occasions when the Parties and the Children came to visit. She and C.M.(2) did have regular contact through social media. She has only been to [omitted for publication] on one occasion; for the Parties’ wedding;

c)   since C.M.(2)’s move to North Vancouver they see each other about once a week for Sunday dinners at her parents’ home. They also keep in contact on a daily basis through texts or social media;

d)   she has no driver’s licence and relies on her retired father for some of her transportation needs. She can also get around the Lower Mainland using ride sharing services or public transit. Travel time from her home to C.M.(2)’s home would be 10 to 15 minutes by car in good traffic conditions and 20 to 30 minutes in congested traffic. She has no idea how long it would take to get between the two homes by bus;

e)   she has some mental health issues but feels that most people of her age deal with the same concerns and it is not a big deal. She had some suicidal ideations in the past but never considered acted upon them. She has had different prescriptions in the past to deal with that and she is now on a stable medication. She has Obsessive Compulsive Disorder and has taken medication for that in the past. She also suffers from agoraphobia;

f)     from her perspective C.M.(2) is stressed with everything that is occurring but is making a good home for A.M.L.M., is doing well in school and also works. C.M.(2) does get anxious from time to time but handles it well with help from A.M.L.M. and her. It is not crippling and only lasts for an hour or so;

g)   C.M.(2)’s home is usually really clean. A.M.L.M. tells her that she likes living in North Vancouver because she has her own bedroom which she did not have in [omitted for publication];

h)   she has been with C.M.(2) when the Children are with her. C.M.(2) takes the Children and A.M.L.M. to many fun places and they engage in lots of activities. She also sees them at the weekly family dinners when they are with C.M.(2);

i)     she and E.J.M.M. have talked and he has said a lot of bad things about [omitted for publication] including being left alone in a car, and left alone with S.P.M.M. when [C.M.(1)] is visiting other people. E.J.M.M. tells her he wants to live in Vancouver and that he misses A.M.L.M.;

j)     C.M.(2) and their mother, J.M., did not get along for many years; mostly due to J.M.’s drinking problem. J.M. has now been sober for a decade and things between them have improved greatly. C.M.(2) and J.M. are both “status” Indigenous persons but they don’t discuss it much when she is present; and

k)   she is aware that the Children would attend school very near to where C.M.(2) lives in North Vancouver. She and C.M.(2) have discussed the possibility of her providing before and after school care for the Children and that she may have to help them get ready for school.

a)   C.M.(2)’s anxious behaviour is like a panic attack that includes anxiety, breathing heavily, shaking, and crying. It can last for about an hour but is not drastic and she shakes it off. She has only seen it one or two times while they are together since C.M.(2) moved;

b)   she assists her father in getting to his appointments. There was some suggestion in the past that he may be suffering from the early stages of dementia but that is not been confirmed;

c)   her suicidal ideation and thoughts of self-harm were not frequent and have ceased since she began a new prescription medication. She has not seen a psychiatrist but remains in regular contact with her doctor; and

d)   she has no experience in caring for young children.

J.M.

a)   J.M. is 61 and works at the [omitted for publication] as an executive assistant to the Chief Executive Officer;

b)   J.M. and C.M.(1) did not like each other. J.M. did not like C.M.(2) living in [omitted for publication] and C.M.(1) did not like how J.M. treated C.M.(2) in the past;

c)   although her relationship with J.M. was turbulent for many years it has slowly improved over time. Between February and June 2020 they had multiple conversations that resulted in apologies and reconciliation; and

d)   she believes J.M.’s drinking problems were associated with her personal history and the history of how Indigenous persons were treated with prejudice in Canada. J.M. and her two sisters were part of the 60’s scoop and lived in foster care throughout most of her formative years. That caused her to lean heavily on alcohol for many years but she has been sober for the past three years.

CHILD SUPPORT

THE LAW

Family Law Act

a)            Best interests of child

37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following:

(a) the child's health and emotional well-being;

(b) the child's views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child's life;

(d) the history of the child's care;

(e) the child's need for stability, given the child's age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs;

(i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child's safety, security or well-being.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.

b)            Parental responsibilities

41 For the purposes of this Part, parental responsibilities with respect to a child are as follows:

(a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;

(b) making decisions respecting where the child will reside;

(c) making decisions respecting with whom the child will live and associate;

(d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location;

(e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity;

(f) subject to section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child;

(g) applying for a passport, licence, permit, benefit, privilege or other thing for the child;

(h) giving, refusing or withdrawing consent for the child, if consent is required;

(i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;

(j) requesting and receiving from third parties health, education or other information respecting the child;

(k) subject to any applicable provincial legislation,

(i) starting, defending, compromising or settling any proceeding relating to the child, and

(ii) identifying, advancing and protecting the child's legal and financial interests;

(l) exercising any other responsibilities reasonably necessary to nurture the child's development.

c)            Parenting time

42 (1) For the purposes of this Part, parenting time is the time that a child is with a guardian, as allocated under an agreement or order.

(2) During parenting time, a guardian may exercise, subject to an agreement or order that provides otherwise, the parental responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child.

d)            Changes to child's residence if no agreement or order

46 (1) This section applies if all of the following circumstances exist:

(a) no written agreement or order respecting parenting arrangements applies in respect of a child;

(b) an application is made for an order described in section 45 (1) (a) or (b) [orders respecting parenting arrangements];

(c) the child's guardian plans to change the location of that child's residence and the change can reasonably be expected to have a significant impact on that child's relationship with another guardian.

(2) 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.

e)            Division 6 – Relocation

Definition and application

65 (1) In this Division, "relocation" means a change in the location of the residence of a child or child's guardian that can reasonably be expected to have a significant impact on the child's relationship with

(a) a guardian, or

(b) one or more other persons having a significant role in the child's life.

(2) This Division applies if

(a) a child's guardian plans to relocate himself or herself or the child, or both, and

(b) a written agreement or an order respecting parenting arrangements or contact with the child applies to the child.

f)     Notice of relocation

66 (1) Subject to subsection (2), a child's guardian who plans to relocate himself or herself or a child, or both, must give to all other guardians and persons having contact with the child at least 60 days' written notice of

(a) the date of the relocation, and

(b) the name of the proposed location.

(2) The court may grant an exemption from all or part of the requirement to give notice under subsection (1) if satisfied that

(a)notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child, or

(b)there is no ongoing relationship between the child and the other guardian or the person having contact with the child.

(3) An application for an exemption under subsection (2) may be made in the absence of any other party.

g)            Resolving issues arising from relocation

67 (1) If notice is required under section 66 [notice of relocation], after the notice is given and before the date of the relocation, the child's guardians and the persons having contact with the child must use their best efforts to cooperate with one another for the purpose of resolving any issues relating to the proposed relocation.

(2) Nothing in subsection (1) prevents

(a) a guardian from making an application under section 69 [orders respecting relocation], or

(b) a person having contact with the child from making an application under section 59 [orders respecting contact] or 60 [changing, suspending or terminating orders respecting contact], as applicable, for the purpose of maintaining the relationship between the child and a person having contact with the child if relocation occurs.

h)            Child may be relocated unless guardian objects

68 If a child's guardian gives notice under section 66 [notice of relocation] that the guardian plans to relocate the child, the relocation may occur on or after the date set out in the notice unless another guardian of the child, within 30 days after receiving the notice, files an application for an order to prohibit the relocation.

i)     Orders respecting relocation

69 (1) In this section, "relocating guardian" means a guardian who plans to relocate a child.

(2) On application by a guardian, a court may make an order permitting or prohibiting the relocation of a child by the relocating guardian.

(3) Despite section 37 (1) [best interests of child], the court, in making an order under this section, must consider, in addition to the factors set out in section 37 (2), the factors set out in subsection (4) (a) of this section.

(4) If an application is made under this section and the relocating guardian and another guardian do not have substantially equal parenting time with the child,

(a) the relocating guardian must satisfy the court that

(i) the proposed relocation is made in good faith, and

(ii) the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life, and

(b) on the court being satisfied of the factors referred to in paragraph (a), the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise.

(5) If an application is made under this section and the relocating guardian and another guardian have substantially equal parenting time with the child, the relocating guardian must satisfy the court

(a) of the factors described in subsection (4) (a), and

(b) that the relocation is in the best interests of the child.

(6) For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following:

(a) the reasons for the proposed relocation;

(b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities;

(c) whether notice was given under section 66 [notice of relocation];

(d) any restrictions on relocation contained in a written agreement or an order.

(7) In determining whether to make an order under this section, the court must not consider whether a guardian would still relocate if the child's relocation were not permitted.

j)            If relocation permitted

70 (1) If the court makes an order under section 69 [orders respecting relocation] that permits a child's relocation, the court may make any of the following orders:

(a) subject to subsection (2) of this section, if the order made under section 69 affects an agreement or order that allocates parenting arrangements between the relocating guardian and another guardian, an order under section 45 [orders respecting parenting arrangements] or 47 [changing, suspending or terminating orders respecting parenting arrangements], as applicable;

(b) any order necessary to ensure that the relocating guardian complies with the terms of the order permitting relocation, including an order to do one or more of the following:

(i)give security in any form the court directs;

(ii)transfer specific property to a trustee named by the court.

(2) In making an order under subsection (1), the court must seek to preserve, to a reasonable extent, parenting arrangements under the original agreement or order.

Case Law

a)   Brenner v. Yager, unreported, December 7, 2020 Quesnel Registry # 17204, BCPC;

b)   M.H. v. A.M., 2018 BCPC 401;

c)   S.M.K. v. S.K., 2017 BCSC 1242;

d)   C.B.B. v. M.B., 2017 BCPC 245:

e)   Bonar v. Bonar, 2016 BCSC 2065;

f)     T.M.L. v. C.J.S., 2016 BCPC 117;

g)   L.J.R. v. S.W.R., 2013 BCSC 1344

h)   Merriman v. Merriman, 2016 BCSC 1505.

a)   Duggan v. White, 2019 BCCA 200;

b)   L.A. v. D. T., 2019 BCPC 181;

c)   B.E.M. v. J.T.B., 2017 BCPC 174;

d)   A.J.D. v. E.A.E., 2013 BCSC 2160;

e)   S.S.L. v. J.W.W., 2010 BCCA 55.

SUBMISSIONS

C.M.(1)

a)   section 69(5) applies in this case because of the January 2020 Order which provided for equal parenting time for each of the Parties even though C.M.(2)’s relocation to Vancouver has had the practical effect of the Parties not having “substantially equal parenting time”;

b)   the case law sets out a variety of analyses on the concept of “good faith” to determine whether it is made out in a particular set of circumstances. In this case, when considering the totality of her reasons for relocating, C.M.(2) has not demonstrated good faith as described in Section 69(4). The Court should not be satisfied that C.M.(2) has met the requirements of Section 69(4)(a) particularly given that she has substantially less parenting time since her move;

c)   C.M.(2) has just recently re-established a relationship with her mother, J.M., after many years of estrangement;

d)   C.M.(2)’s reasoning that attending Capilano would enable her to pursue her educational goals more quickly does not bear up to scrutiny. She could have pursued her educational goals remotely from [omitted for publication] at Prince George or even Capilano. Given the Covid pandemic C.M.(2) took her courses at Capilano remotely which could have been done from [omitted for publication];

e)   there is no independent evidence that C.M.(2)’s course of study could not have been achieved in northern BC. Her decision to move to Vancouver was based on many years of wanting to get out of [omitted for publication] and not for the benefit of the Children;

f)     C.M.(2) has just recently began to explore her Indigenous culture. Prior to the separation, she and C.M.(1)’s were not significantly involved in exploring their ancestry. Her suggestion that it is beneficial for the Children to become immersed in her cultural background does not recognize that the Children have Indigenous ancestry on C.M.(1)’s side of the family that should be pursued as well;

g)   Vancouver and [omitted for publication] enjoy very different lifestyle opportunities and despite C.M.(2)’s view, the Children’s general quality of life will not be enhanced by a move from their present home. [omitted for publication] is where the Children have lived their entire lives and they have close and integrated contacts with both extended families;

h)   the Children had past anxiety related issues that required professional assistance. There is a strong possibility that those issues could re-emerge if their lives are disrupted by a move. In addition, C.M.(1)’s relationship with A.M.L.M. has deteriorated since she moved to Vancouver. A similar result could occur if the Children were relocated. By contrast, C.M.(1) has ensured that the Children’s relationship with C.M.(2) has remained strong;

i)     in her present course of study, with her educational, employment, and parenting responsibilities for A.M.L.M., C.M.(2) has found it necessary to reduce her course load. Adding the responsibility for two more younger children could further interfere with her ability to be successful in her education; and

j)     although C.M.(2) has financial assistance from her First Nation the relocation to the Vancouver area does not provide any increased financial stability because of the cost of living is far greater than in [omitted for publication]. It is likely she will have to move after her education is complete because she will no longer have the financial support she enjoys now. Overall there is no financial betterment resulting from the move.

a)   Health and well-being - the Children are healthy and emotionally well. They did have some previous professional assistance to deal with anxiety related issues but the Parties agree that is not required now. The Children have a family doctor and dentist in [omitted for publication];

b)   Views - there is no evidence of the Children’s views aside from E.J.M.M. telling various people that he wants to be in Vancouver and others that he wants to remain in [omitted for publication]. S.P.M.M. has not expressed any views. A Section 211 report was not sought;

c)   Nature and strength of relationships –

                                                      i.        The Children’s primary relationships are with their parents. Both Parties have been significantly involved in the Children’s care and upbringing and neither criticize the parenting ability or capacity of the other;

                                                   ii.        The Children have a close relationship and regular contact with both Parties’ extended family members in [omitted for publication] that would continue if they remain in the community;

                                                   iii.        The Children have reduced contact with A.M.L.M. as a result of C.M.(2)’s decision to move her to Vancouver and separate the siblings which was not in the Children’s best interests;

                                                   iv.        The Children have had a limited relationship with C.M.(2)’s mother, stepfather and stepsister. They have only been to [omitted for publication] once and did not come to assist C.M.(2) when she had a mental health crisis at the separation. The Children have had limited contact with their Vancouver relatives over the years; and

                                                   v.         J.M. has a good job and financial resources that would have allowed her to travel to [omitted for publication] to build a relationship with C.M.(2) and the Children but she made no effort to do so before the separation and up until C.M.(2)’s move to Vancouver.

d)   History of care – Prior to the separation the Parties shared parenting responsibilities and parenting time. From May 9, 2019, until January 2020, C.M.(1)’s parenting time was curtailed. From January to July 2020, the Parties resumed equal parenting time. Since C.M.(2)’s move to Vancouver C.M.(1) has had the majority of parenting time. The Children have always primarily resided in [omitted for publication];

e)   Need for stability given age and stage of development – The Children’s anxiety issues may return if they are removed from their known environment in [omitted for publication]. It is not in their best interests, given their ages, to disrupt their lives and remove them from the extended family resources they are familiar with (see Bonar, Merriman, C.B.B., M.H. and T.M.L.);

f)     Ability to exercise parental responsibilities – both Parties are good parents who are capable of exercising their parental responsibilities. However, there are some differences in how those responsibilities may be exercised depending on where the Children primarily reside;

g)   Not relevant;

h)   Not relevant;

i)     Appropriateness of an arrangement that would require the guardian’s cooperation - the Parties have largely cooperated ensuring that the needs of the Children been met since the separation. They have facilitated a reasonable arrangements for the care of the Children despite their differing views on where the Children should reside the majority of the time; and

j)     Not relevant.

C.M.(2)

a)   during the relationship she was the primary caregiver for the Children, including having them at the day care she worked at except, for approximately one year, when S.P.M.M. was younger and C.M.(1) was on Employment Insurance;

b)   commencing with the January 2020 Order the Parties entered into a shared parenting regime;

c)   the Parties had several discussions about relocating from [omitted for publication] during the relationship and although C.M.(1) opposed moving to the Lower Mainland he was open to moving to the Okanagan. Based on those discussions she obtained a job offer in Kelowna in June 2019 at a much higher salary than her existing job in [omitted for publication]. C.M.(1) opposed that move so she chose to pursue higher education in the field of early childhood education and was accepted at Capilano in the fall of 2020. She acquiesced to C.M.(1)’s refusal to permit her to move the Children until the Court determined the matter;

d)   in determining the issue of “good faith” as it pertains to the issues of:

                                      i.        relocation - the Court should consider the decisions of F.E.M. and Duggan and endorse that C.M.(2)’s choice of Capilano was both reasonable and well thought out;

                                    ii.        enhance general quality of life – C.M.(2)’s evidence of the income she could earn with limited education as compared to both the income and career opportunities available by improving her education is compelling and well reasoned and are very similar to the circumstances in Duggan. The Court should conclude that her efforts would result in a general enhancement of the quality of her life, financially, educationally and emotionally and through that the general quality of life of the Children.

                                   iii.        Other advantages of relocation for the Children include: a) they would be reunited full time with C.M.(2) who would be able to arrange her work and school schedule to accommodate them; b) they would be reunited with their older sister A.M.L.M.; c) they would attend a school with an advanced education program; d) they could take advantage of opportunities available in a big city; e) they would be reintroduced to C.M.(2)’s immediate family and e) they would learn about their Indigenous heritage;

e)   C.M.(2) has obtained stable and appropriate accommodation for the Children near where they would be attending school. There would be a period of transition and adjustment for the Children but she is confident that she would be able to have them adapt to a new routine and a new home;

f)     C.M.(1) has only recently obtained his own residence having previously lived in a suite in the D.B. and S.B. home. He previously had steady daytime employment until he was laid off and now works long hours as a Class I driver. He has not demonstrated that his residence and employment status is stable; and

g)   C.M.(2) has proposed a reasonable parenting time schedule for C.M.(1) including numerous long weekends, spring break, half the summer school break and half of the Christmas school break.

a)   Health and well-being - the Children are healthy and happy;

b)   Views – The evidence suggest the Children enjoy being with each of the Parties and extended family;

c)   Nature and strength of relationships – extended family for each of the Parties live in [omitted for publication] but C.M.(1) is not fostering time between the Children and C.M.(2)’s family;

d)   History of care – Prior to the separation, except for one year, C.M.(2) was the primary caregiver;

e)   Need for stability given age and stage of development – C.M.(1)’s evidence was that when C.M.(2) first moved to Vancouver the Children initially missed her and A.M.L.M. but they adapted quickly and they are now doing well in school and no longer require the assistance of the CDC. Based on the observations of both Parties there is nothing to suggest that the Children could not handle another move from [omitted for publication] to Vancouver similar to the circumstances described in B.E.M.;

f)     Ability to exercise parental responsibilities – both Parties are good parents who are capable of exercising their parental responsibilities. A.M.L.M. is excelling at school while living with C.M.(2) and there is nothing to indicate that the Children would not do as well under her care and attending a new school;

g)   Not Relevant;

h)   Impact of any family violence on the Children’s safety security or well being – C.M.(1) was reckless when caring for the Children which lead to his friend’s death and his serious injuries in a motor vehicle accident. C.M.(1) and his mother S.B. have engaged in violent behaviour in the past;

i)     Actions of the person responsible for family violence – C.M.(1) has done nothing to address his anger management issues which could affect the Children’s emotional well-being as they observe such behaviour;

j)     Appropriateness of an arrangement that would require the guardian’s cooperation - no comment; and

k)   Civil or criminal proceedings - no comment.

a)   C.M.(1) has done nothing to promote the Children’s Gitxsan heritage;

b)   since moving to Vancouver C.M.(2) has reunited with her maternal family and has been reintroduced to her Coast Salish heritage through her education and employment;

c)   she lives on the unceded territory of the Coast Salish people and is in contact with relatives in the Squamish Nation;

d)   she and A.M.L.M. are learning the Squamish language and about their history;

e)   the Children would be able to about their Indigenous heritage including beadwork, dancing, drumming, fishing and smoke houses; and

f)     the importance of learning about Indigenous heritage was a factor considered in B.E.M. and L.A.

DISCUSSION

Relocation

[31] In evenly balanced shared parenting situations, careful and transparent analysis of the evidence and reasoning is especially important, if courts are to encourage joint parenting following separation and discourage jockeying for position by the parent in a favoured position (very often mothers because of their historic role in the family) who wants to avoid being frozen in a current situation by the co-operative approach generally thought ideal for young children […]

[32] This approach takes the focus away from the time factor that bedevils so much of family post-separation litigation… Far more significant is the role each parent has played in the children’s lives; which parent has taken primary responsibility for their health, safety, education and overall welfare; which parent deals with the mundane but necessary arrangements of their lives – clothing, haircuts, extracurricular activities, gifts for friends, doctors’ and dentists’ appointments, contact with their extended family; and which parent has the best perception of the emotional needs of the children. In sum, what it is that each parent contributes to the children, as care-giver. Only when those contributions are made clear will an understanding be reached as to what arrangements will work best for the children going forward. The analysis of the parent’s role is fundamental to the determination of a primary care-giver, whether continued shared parenting is in the children’s best interests, and where they should live.

[33] I note that in this assessment of each parent’s contribution to the care of their children, it is inevitable the court will be required to assess the resources available to each, in personal and economic terms that permit them to make those contributions, and the potential effect on those resources in each proposed scenario. As many courts have noted, this may require an assessment of a parent’s emotional and economic prospects because children’s interests are necessarily intertwined with those of their parents.

[78] In my view, the analysis mandated by the FLA would seem to foreclose any presumptive disposition based on an existing parenting arrangement given the extensive list of factors that must be considered before concluding what parenting arrangement is in the best interests of the child. It would seem to create a complete code for the required analysis, one that differs in some respects from the common law test. For example, in Gordon v. Goertz the Court limited any consideration of the reasons for the “custodial” parent’s move to “only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child”, while s. 69 (6) of the FLA expressly requires the reasons for the proposed move to be considered. […]

Good Faith

A state of mind consisting in (1) honesty in belief of purpose, (2) faithfulness to one's duty or obligation.

Connotes an honest and reasonably held belief. If the belief is honest but not reasonably held, it cannot be said to constitute good faith. But it does not follow that it is therefore bad faith. To constitute bad faith actions must be knowingly or intentionally wrong.

a)   Nearer to family – C.M.(2) has immediate family in the Vancouver area and the Okanagan as well as extended family in the [omitted for publication] area;

b)   Exploring her cultural roots – although she did little to connect with her Indigenous community during her time in [omitted for publication] she has taken steps to do so since moving including reaching out to her extended clan relations, taking language lessons, and taking steps to have the Children recognized and included in a First Nation to obtain their “status;”

c)   Better financial or educational opportunities – C.M.(2) is pursuing a career goal and working at the same time. If successful in her education path she will be qualified as an elementary school teacher several years down the road. In the meantime her financial situation is very modest;

d)   Enhanced general quality of life – There was no better evidence that the Children’s quality of life would be improved if they moved to North Vancouver over continuing to live in [omitted for publication]. Both options have pluses and minuses because they are very different communities with very different lifestyles available;

e)   Increasing emotional wellbeing – C.M.(2) presented little in the way of evidence that her emotional well-being has been enhanced by her move except that there is some distance between her and C.M.(1) reducing the tensions between them. She appears to have some difficulty with anxiety and an ability to manage all of her duties and obligations to A.M.L.M. her employment and her education;

f)     Section 69 (6) (c) and (d) – C.M.(2) did give notice of her intention to relocate. On August 28, 2019, the Court granted a Final Order prohibiting the Parties from changing the residence of the Children and A.M.L.M. from [omitted for publication] without the approval of both Parties.

Children’s Best Interests

a)   Health and emotional well-being – The Parties agree that the Children are physically and emotionally well. Since the summer of 2020, C.M.(1) has assumed the role of arranging for their routine health appointments. Although the Children have had some past needs for assistance from the CDC those issues are now addressed. C.M.(1)’s concern that a change of residence for the Children might cause a reoccurrence of their anxiety issues was not supported by any objective evidence but neither was C.M.(2)’s evidence that they would adapt quickly to a change;

b)   Views – The only evidence of the Children’s views were conflicting conversations E.J.M.M. had with family members about wanting to remain in or leave [omitted for publication]. There was no evidence about the circumstances surrounding such comments or when they were made. S.P.M.M. has not expressed any view on the topic. Given his age, canvassing E.J.M.M.’s views in a more formal matter, such as a Views of the Child Report, may have been of assistance;

c)   Nature and strength of relationships - As in most healthy parent/child relationships, the Children’s closest and deepest bonds are with the Parties. They also have a close bond with their sister, A.M.L.M., although that closeness may have been affected by the reduced frequency of their contact with her since C.M.(2)’s move to Vancouver.

They also have close relationships with their many relatives in the [omitted for publication] area who they see on a regular basis depending on how close they are to those persons, everyone’s schedules and the various Covid-19 protocols in place. I am satisfied that C.M.(1) will ensure the Children will have time with all the extended family in the [omitted for publication] area during the time he has the Children in his care. I am also satisfied that C.M.(2) will ensure the Children will have regular contact with her immediate family and the extended Indigenous family she becomes introduced to in the future;

d)   History of care – From the time each of the Children were born until the separation, both Parties participated in caring for the Children but C.M.(2) cared for them more by virtue of her working at the Children’s day care. For six months following the separation C.M.(2) had the vast majority of the Children’s care. For the first half of 2020 the Parties equally shared the parenting time until C.M.(2) moved from [omitted for publication]. For the last 18 months C.M.(1) has been the Children’s primary caregiver;

e)   Need for stability given age and development – The Children were born and raised in [omitted for publication]. They had a somewhat unstable upbringing until the separation. The Parties acknowledge that their lifestyle during their relationship was less than ideal with many moves and poor financial management.

That situation was disrupted by the circumstances of the separation and a six month hiatus in C.M.(1)’s parenting of the Children until the alternating weekly schedule of care was instituted. It was further disrupted by C.M.(2)’s relocation from [omitted for publication]. However, the Children appear to have adjusted to these various changes.

C.M.(2) has maintained her North Vancouver residence for over a year and it is a comfortable and suitable home for the Children. C.M.(1) lived in a less functional residence until the spring of 2021 but he moved to a residence that is also a comfortable and suitable home for the Children.

C.M.(2) proposes to change the Children’s school and after school care in a new community, thereby separating them from their friends and the extended family with which they are familiar. Her proposal may permit more time for the Children with their sister, and a plan to spend more time with her family in the Vancouver area. But how the contact between the Children, her family in Vancouver and extended family in the Coast Salish community would be accommodated is quite speculative at this time.

Some examples of the speculative nature of C.M.(2)’s plans for the Children’s care include; how A.M.L.M. would have time to care for them given her involvement in her studies and being a teen, how M.D. would be able to get from her home to C.M(2)’s when her assistance was required, and J.M.’s willingness, availability, and capacity to provide care in the face of the Court not having the benefit of her evidence;

f)     Ability to exercise responsibilities – The Parties acknowledge that both are capable of exercising their day-to-day parenting responsibilities to ensure the Children are loved, properly fed, and housed. The Parties have been able to cooperate for the most part when addressing issues concerning the Children;

g)   Impact of family violence – C.M.(2) submission that the past volatile relationship between C.M.(1) and S.B. should be of concern to the Court is worthy of consideration. However, the evidence indicates that such turmoil was well in the past and there was no evidence that any of those incidents were witnessed by the Children;

h)   Person responsible for family violence – not applicable given the above finding;

i)     Appropriateness of cooperation – discussed in f) above;

j)     Civil or criminal proceedings – not applicable.

a)   Education and out of school care – The Children attend the same day care that they have been going to for several years when they are not cared for before or after school by S.B. and B.M. while C.M.(1) is at work. C.M.(1) presented no evidence about where the Children’s school is in relation to either where he or S.B. lives.

C.M.(2) has identified an elementary school very close to where she lives where the Children would attend if they reside with her. She hopes that the Children would be accepted at a day care near to where she lives or where she works. Until such a placement was available she said she would rely on A.M.L.M., M.D., and J.M. without setting out how that would be achieved;

b)   Work Hours – C.M.(2) said that she has flexibility that will allow her, with the help of others, to take the Children to and pick them up after school. That flexibility seems somewhat limited given her evidence regarding her educational path, course load pressures and work requirements.

C.M.(1)’s work hours often require him to start early and sometimes work long hours. In those circumstances he must get the Children up early and to S.B.’s home to be cared for until their school day starts. He did not provide any specifics on how he would arrange his work schedule so it does not conflict with his parenting time regardless of the outcome of this case;

c)   Extracurricular Activities – Both Parties described activities that they can have the Children participate in when they are caring for them. Those activities should be encouraged depending on parenting time scheduling. The type of activities available to the Children are very different between the Metro Vancouver area and [omitted for publication]. The Children should get to enjoy all that both communities have to offer regardless of how much time they spend with each Party within their financial abilities;

d)   Indigenous heritage - I accept that neither Party spent much time or displayed outward interest in their own Indigenous heritage while they were together. Since her move to North Vancouver C.M.(2) has taken concrete steps to reconnect with her Indigenous roots through her family, her studies, and her employment. This has been aided by the fact she lives in the geographic area of her Indigenous community.

C.M.(1) has not demonstrated similar steps in reconnecting with his Indigenous extended family and community. That may be because his Indigenous family roots are in a community 600 kilometers from where he was raised and now lives.

The circumstances here are much different from those in L.A. where the child was born and lived his entire six-year life in an Indigenous community from which one parent wanted to remove him. C.M.(2) has just started her exploration of her ancestral and cultural roots and her connections are in their infancy.

Parental Responsibilities

Parenting Time

a)   Weekends – At least one long weekend per month including most of the statutory holidays. There would be additional time on weekends if there is a non-instructional day or professional development day;

b)   Cultural Events – As C.M.(2) becomes more involved in her Indigenous cultural life there will be events and occasions such as potlatches, feasts, funerals, and other ceremonies that she will want to experience with the Children. Those events should be accommodated;

c)   Spring Break – C.M.(1) has limited vacation entitlement that needs to be scheduled. C.M.(2) has educational and employment commitments that have to be considered. However, it might be appropriate for her to have all of the Spring Break with the Children unless C.M.(1) can confirm that he can get time off work during that time in which case the Spring Break in any given year could be shared or one Party could have the Children for the entirety of Spring Break in alternate years;

d)   Christmas Break – there are many ways to share Christmas Break between the Parties so long as each gets Christmas Day with the Children in alternate years. They might consider a schedule that accommodates the Children’s and the Parties’ needs and the vicissitudes of the weather at that time of year;

e)   Summer Break – In light of C.M.(1)’s work schedule in the summer months and his limited vacation entitlement, C.M.(2) should have the majority of the summer break with the Children. The schedule I suggest would give the Children several days at home in [omitted for publication] at the end of and just before the beginning of the school year, two extended blocks of time with C.M.(2) and a block of time in between with C.M.(1). That would give him the opportunity to make the necessary arrangement with his employer for specified time off;

f)     Exchange Location – Until the uncertainty surrounding highway infrastructure is clarified the Parties will have to be flexible about an exchange location. They may also want to consider the use of third party surrogates known to the Children to provide additional flexibility;

g)   Electronic Communication – the Parties should invest in the necessary technology and data plans to allow the Children regular and frequent communication with them and all other extended family members regardless of where the Children are from time to time; and

h)   Medical and Dental Plans – The Parties will immediately provide to the other the details of any medical and dental plans provided them through their employment and will maintain the Children on those plans. That will permit any plans to be applied to the expenses of the Children’s medical and dental care.

DECISION

a)   41(a) –C.M.(1) and C.M.(2) will make day to day decisions affecting the Children when the Children are residing with them;

b)   41(d) – C.M.(1) will make final decisions respecting the Children’s education and extracurricular activities;

c)   41(e) – C.M.(2) will make final decisions concerning the Children’s cultural and linguistic heritage including their Aboriginal identity and membership in an Indigenous First Nation;

d)   41(f) – C.M.(1) will make final decisions concerning the Children’s routine medical, dental and other health related treatments.

 

 

_______________________________

The Honourable Judge M. J. Brecknell

Provincial Court of British Columbia