IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]            E.G. is eight years old.  R.G. is five years old.  Their parents are A.G. and B.G.

[2]            Pursuant to the September 20, 2023 Order, E.G. and R.G. have time with their father on Fridays from 3 PM to 8 PM, on Saturdays from 9:30 AM to 8 PM and on Sundays from either 9:30 AM or noon to 7 PM. 

[3]            This is an application by A.G. for an order permitting her to move with the children to [redacted for publication].  A.G. also seeks an order for parenting time, parental responsibilities, and child support.

[4]            B.G. opposes the relocation.  He seeks an order for increased parenting time and parental responsibilities.

[5]            The trial of this matter proceeded November 27 to 30, 2023 and concluded January 8, 2024.

[6]            The parties began their relationship in 2008.  At that time, A.G. lived in [redacted for publication] and B.G. resided on the [redacted for publication].  The parties were married on July 31, 2010 at which point A.G. moved to the [redacted for publication].  The parties separated in October of 2022.

[7]            A.G. is 33 years old.  She works remotely as a sales representative for [redacted for publication].

[8]            B.G. is 42 years old. He is a member of the [redacted for publication] Nation. B.G. works in construction and restoration.  B.G. is the lead field technician at [redacted for publication].

[9]            E.G. is in grade two at [redacted for publication].

[10]         R.G. is in kindergarten at [redacted for publication].

[11]         On June 28, 2023 an information was sworn pursuant to s.810.1(1) of the Criminal Code alleging that there were reasonable grounds to believe B.G. would commit an offence listed in that section.

[12]         On January 31, 2024, the Crown proceeded on a new information pursuant to s.810(1)(a) of the Criminal Code alleging that B.B. has reasonable grounds to fear and does fear that B.G. will cause personal injury to K.B.

[13]         B.B. is K.B.’s mother. K.B. was E.G.’s friend. The allegations arise from a time when K.B. and E.G. were playing together and in B.G.’s care.

[14]         On February 1, 2024, B.G. attended court and admitted that there were reasonable grounds for the application.  Accordingly, B.G. was placed on a recognizance for 12 months.  Pursuant to the Recognizance After Allegation, B.G. is to have no contact with a number of individuals including K.B.  In addition, B.G. is not to go to any place where those individuals live, work, attend school, worship or happen to be.  If B.G. sees any of them, he must leave their presence immediately without any words or gestures.

[15]         A.G., B.G. and their children are all members of the [redacted for publication] community. Prior to these allegations, both parties, E.G. and R.G. attended the [redacted for publication]. Since then, only A.G. and the children have been attending the [redacted for publication].

[16]         The people that B.G. is to have no contact with are all members of the [redacted for publication].

[17]         Elders at the [redacted for publication] have recommended to B.G. that he limit his time at the [redacted for publication] and have encouraged him to attend meetings by Zoom.

[18]         A.G. submits that it is in the children’s best interests to reside with her and relocate to [redacted for publication].  She says that there is more support for her and the children in [redacted for publication]. A.G. believes she will achieve financial stability if she moves to [redacted for publication].

[19]         A.G. says that the parties should share parental responsibilities.  She says that E.G. and R.G.’s time with their father is dependent on whether he chooses to move to [redacted for publication].  A.G. has put forth four parenting time plans.  Each plan is dependent on the outcome of these proceedings.

[20]         A.G. seeks child support based on the table amount pursuant to the Child Support Guidelines.

[21]         B.G. submits that it is in the children’s best interests to remain on the [redacted for publication].  He says that A.G. is “not focused whatsoever on the children’s best interests, but her own interests and distorted view of what is in the children’s best interests.”

[22]         B.G. also says that A.G. is minimizing his relationship with the children.  He emphasized that this is contrary to the maximum contact principle. B.G. submits that a week on-week off parenting arrangement and shared parental responsibilities are in the children’s best interests.

[23]         B.G. says an order for child support is dependent on the parenting arrangement determined by the Court.

[24]         Both parties raised issues respecting the credibility and reliability of the other party generally. They also raised the following issues:

[25]         Therefore, I must consider the credibility and reliability of their testimony and the testimony of the witnesses.

[26]         Reliability and credibility are related but distinct topics.  Credibility is an assessment of the trustworthiness of the witness’ testimony.

[27]         Factors to consider in assessing a witness’ credibility include:

[28]         The credibility of a witness must be assessed for its “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable.”

[29]         Reliability considers the accuracy of the witness’ testimony.  This involves the witness’ the ability to observe, recall and recount the events in issue.

[30]         If the witness’ evidence on a point is not credible, it follows it is unreliable.  A credible witness can make honest mistakes.

[31]         There is no requirement that a trier of fact believe or disbelieve a witness’ testimony in its entirety.  On the contrary, a trier of fact may believe none, part or all of the witness’ evidence and may attach different weight to different parts of a witness’ evidence. See Mancinelli v. Mancinelli, 2021 BCSC 94 at paragraphs 26 to 29.

[32]         The trial judge is not required to review all of the evidence in the judge’s reasons for judgement. See E.L. v. M.L. 2021 BCSC 1012 at paragraph 41.

[33]         Moreover, in preparing reasons in a family law case, a trial judge is expected to consider each of the legislative factors in light of the evidence adduced at trial.  However, that is not to say that the trial judge is obligated to discuss every piece of evidence in detail or at all when explaining their reasons.  This would be an unreasonable requirement at the end of a very lengthy trial.  As a result, trial judges may sometimes appear to stress one factor over another and in fact, it may be said that this is inevitable in family law cases, which are heavily dependent on the particular factual circumstances at issue. See Van De Perre v. Edwards, 2021 SCC 60 at paragraph 10.

[34]         A.G. says that she wants to move with the children to [redacted for publication] because she has support in [redacted for publication], the cost of living is lower and the impact of the allegations against B.G. have made life on the [redacted for publication] difficult for her and the children.  

[35]         A.G. also says that she and B.G. have agreed to raise their children as [redacted for publication]. As a result, she says that they have not focused on the children’s [redacted for publication] heritage. 

[36]         A.G. described episodes of family violence and expressed a concern about B.G.’s consumption of alcohol.

[37]         B.B.’s daughter, K.B., accused B.G. of inappropriately touching her.  B.B no longer allows her daughter to play with E.G.  She says that B.G. is “a child molester.”

[38]         B.B attends the [redacted for publication]. She says both the [redacted for publication] congregations “have questions” about B.G.

[39]         S.M.’s daughter, I.M., accused B.G. of inappropriately touching her. S.M. no longer allows his daughter to play with E.G. S.M. says both the [redacted for publication] congregations are aware of the allegations.

[40]         Ms. G. is E.G. and R.G.’s maternal grandmother. She and the children’s maternal grandfather live in [redacted for publication]. She said that they would support her daughter and grandchildren if they were in [redacted for publication]. Ms. G. agreed in cross-examination that the children would miss their father if they moved to [redacted for publication]. She also said that the children’s [redacted for publication] culture is not being “maintained.”

[41]         J.W. is a sexual health education teacher. She has no relationship with the parties or E.G. and R.G. She says that during one of her classes K.B. told her that B.G. inappropriately touched her.

[42]         B.G. describes himself as a [redacted for publication] who attends the [redacted for publication]. He is a member of the [redacted for publication].

[43]         B.G. lives in a trailer on his mother’s property. His mother, M., lives in the cottage on the property. B.G.’s brother, M.G., lives in the main house on the property.

[44]         Prior to the allegations, E.G. and R.G. had overnights with B.G.

[45]         B.G. says his relationship with A.G. “has always been rocky.” He also says that their breakup was difficult and there were lots of arguments and disagreements. B.G. say that the parties separated when they got into an argument, he shoved A.G. and she called the police.

[46]         B.G. says that he has taken the Parenting After Separation course and has learned that the way he interacted with A.G. was inappropriate. He says that he also attended for alcohol counselling.

[47]         In cross-examination, B.G. acknowledged that it would be hard on E.G. and R.G. if he was their full-time caregiver. B.G. also agreed that the [redacted for publication] faith has been the focus of the children’s upbringing.

[48]         M.G. is the children’s paternal uncle.  M.G. says that the children visit him and his family when they are with his brother.  M.G. says that either he, his wife or daughter could take E.G. and R.G. to school or pick them up from school if asked to do so by his brother.

[49]         M.H. is the owner of [redacted for publication].  He says he has known B.G. since childhood.  He says his company has a family first policy.  Accordingly, he says that B.G. could leave work early to pick up the children from school or to take the children to a doctor’s appointment.  In cross-examination, M.H. acknowledged that it would not be ideal if B.G. started work late or left work early. M.H. says that B.G. could take two to three days off each month.

[50]         M. is the children’s paternal grandmother. Prior to the parties separating, M. cared for the children every Tuesday. M. says that she could help her son with pickups, drop-offs, and taking the children to [redacted for publication].  M. acknowledged that A.G. is “a very good mom”.  She described her son as “a very involved dad.”  In cross-examination, M. agreed that during the parties’ relationship A.G. did more of the day-to-day care of the children.  She says that it would be disastrous for the children to be separated from either parent.

[51]         S.R. is the manager at [redacted for publication].  She says there would be no issue with B.G. taking the children to school and then coming to work and leaving early to pick up the children after school.  In cross-examination, S.R. acknowledged that if B.G. worked less hours, he would earn less money.

[52]         M.W. is a friend of B.G.  They have been friends for more than 25 years.  M.W. attends the [redacted for publication]. He says that the allegations made by K.B. and I.M. have caused him to “take a couple steps back” from B.G.  M.W. says that if B.G. asked him, he would take care of E.G. and R.G.  

[53]         I find that all witnesses are credible and reliable. I reject B.G.’s suggestion of bias. Further, I am satisfied that the testimony of the parties and the witnesses are largely consistent with each other.

[54]         With respect to B.G.’s alleged drinking on the way home from work, B.G. says that he would spend approximately 40 minutes to an hour hunting or fishing or picking mushrooms on his way home from work.  In cross-examination B.G. acknowledged that he did not take hunting gear with him nor had he ever brought home any animals or mushrooms.  He also acknowledged that he does have alcohol in his truck.  Finally, B.G. says that he used alcohol as a way to cope during the deterioration of his marriage.  Accordingly, I find that it is more likely than not that B.G. did in fact consume alcohol on his way home from work.

[55]         The Family Law Act, S.B.C. 2011, c. 25 deals differently with relocation depending on whether there is an existing written agreement or order respecting parenting arrangements for the child.

[56]         If there is no written agreement or order respecting parenting arrangements, an application is made for an order described in s.45 of the Family Law Act, and 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 then s.46 of the Family Law Act applies.

[57]         The parties agree that s.46 of the Family Law Act applies in this case because A.G.’s application for an order respecting parenting arrangements indicated an intention to change the children’s residence and was filed prior to the September 20, 2023 Interim Order. That Order was made in the course of these proceedings.

[58]         Accordingly, to determine the parenting arrangements that would be in the best interests of the children, the Court must consider in addition to the best interest factors set out in s.37(2) of the Family Law Act, A.G.’s reasons for wanting to change the children’s residence.

[59]         The Court must not consider whether A.G. would move without the children.

[60]         B.G. submits that maximizing contact between the child and the child’s parents is paramount in the consideration of a child’s best interests. B.G. seems to be suggesting that the maximum contact principle implies that as much contact with both parents as possible will necessarily be in the best interests of the children.

[61]         The 2019 amendments to the Divorce Act removed the maximum contact principle from the Divorce Act. That principle is not contained in the Family Law Act. The Family Law Act provides in s.40 that no particular parenting arrangement is presumed to be in the child’s best interests.

[62]         The maximum contact principle emphasized that children should have as much contact with each parent as is consistent with their best interests. That effectively created a presumption in favour of shared parenting arrangements, equal parenting time or regular parenting time.  The Supreme Court of Canada describes this interpretation as “overreach.” See Barendregt v. Grebliunas 2022 SCC 22 (CanLII) at paragraphs 133 to 135.

[63]          The best interests of a child is the only consideration when making a decision about a child. Parenting arrangements must be consistent with the best interests of a child.

[64]         Children are subjects of the law rather than objects of their parents. E.G. and R.G. are individuals distinct from their parents. See S.S. v. R.S. 2021 2137 (CanLII) ONSC at paragraphs 27 and 39.

[65]         In S.S. v. R.S., Justice Mandha explained at paragraphs 48 to 50:

[66]         In summation, a guardian is not entitled to equal time with a child. There is no presumption of shared parenting arrangements, equal parenting time or regular parenting time. How much time a child spends with a guardian will be determined in accordance with what is in the child’s best interests. 

[67]         E.G. and R.G. have the right to the best possible arrangements in the circumstances of the parties.  It is not B.G.’s time with E.G. and/or R.G. nor is it A.G.’s time with E.G. and/or R.G.  It is E.G. and R.G.’s time with each of their parents.

[68]         Section 37(1) of the Family Law Act provides that the only consideration to be taken into account in making an order for the care of a child is the child’s best interests.

[69]         Under s. 37(2) of the Family Law Act, the court must take into account all of the child’s needs and circumstances including the 10 factors listed in that subsection.  The factors listed in s. 37(2) are non-exhaustive.  A determination of the best interests of a child is to be based on a consideration of the facts of the case and each of the factors listed in s. 37(2).

[70]         Section 37(3) of the Family Law Act provides that an order is not in the best interests of the child unless it protects to the greatest extent possible the child’s physical, psychological and emotional safety, security and well-being.

[71]         Under s. 37(4) of the Family Law Act a court may consider a person’s conduct only if it substantially affects a factor set out in s. 37(2) of the Family Law Act and only to the extent that it affects that factor.

[72]         Under s. 40(4) of the Family Law Act, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed:

[73]         A court may make an order that in the event guardians cannot reach an agreement on a significant decision despite their best efforts, one guardian will be entitled to make those decisions and the other guardian will have the right to apply for directions on any decision the guardian considers contrary to the best interests of the child. See Van Kooten v. More, 2013 BCSC 1076 (CanLII) at paragraph 38 and 39.

[74]         In Young v. Young 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3 at paragraphs 71 to 74, Justice L’Heurex-Dube explained the consideration of the factors that enter in the best interests of the child:

[75]         At paragraphs 80 to 82, Justice L’Heureux-Dube continued:

[76]         The best interests of the child is not simply the right to be free of demonstrable harm.  It is the positive right to the best possible arrangements in the circumstances of the parties.  Children have two fundamental rights when their parents separate: a) the right to social and psychological support by having the most suitable arrangement possible in the circumstances for their care and upbringing and b) the right to economic support.  See Young v. Young at paragraph 111.

[77]         A.G. has enrolled the children in counselling to assist them in dealing with their emotional behaviours and to learn how to speak to adults about sexual abuse.  The parties focused on what each believes would be the emotional impact on the children if the children relocated with A.G. or if only A.G. relocated.  Each parent is of the view that their position best insures the emotional well-being of the children.

[78]         A.G. says the children have told her that they are “happy in the interior and wish to remain there”.  B.G. says it would be hard on the children if he was their full-time care giver.

[79]         The children have strong relationships with both parents.  They also have strong relationships with their maternal grandparents, their paternal grandmother and their father’s extended family.

[80]         Prior to the parties’ separation both parents cared for the children.  As noted by M., during the relationship, A.G. did more of the day-to-day care of the children than B.G. did.  For about the last year, A.G. has been the children’s primary caregiver.

[81]         The children are young and need stability.  Each parent is of the view that their proposal provides the greatest stability for the children.

[82]         A.G. has shown that she can appropriately exercise parental responsibilities. The circumstances that resulted in B.G. entering into a recognizance cause me to be concerned about B.G.’s ability to exercise parental responsibilities on a full-time basis.

[83]         B.G. acknowledges that he has involved the children in the parental conflict.  He says that the children have heard him call A.G. names, criticize and belittle her and accuse her of not being [redacted for publication].  B.G. says that he has thrown things at A.G. in front of the children and called A.G. “a freak” in front of R.G.  He acknowledges that the Elders at [redacted for publication] have spoken to him about how he speaks to A.G. and have threatened to “kick him out of the [redacted for publication]” if the behaviour continues.  A.G. says that R.G. has insulted her when he is angry. She believes that R.G. is copying his father’s behaviour. 

[84]         A.G. acknowledges that she instigated an altercation with B.G. in which she brought a knife.

[85]         The behaviours described above are concerning. However, since separation the way the parties interact has improved significantly.  I am satisfied that both parents are able to care for and meet the children’s needs.

[86]         A.G. submits that while there has been family violence and there continues to be a risk of family violence in the future, cooperation between the parties will not increase the risk to the safety, security, or well-being of the children or A.G.

[87]         B.G. submits that the parties have demonstrated the ability to cooperate.

[88]         I am satisfied that it is appropriate to require the children’s guardians to cooperate on issues affecting the children.

[89]         On February 1, 2024, B.G. entered into a recognizance pursuant to s.810 of the Criminal Code. As a result, he is to have no contact with a number of people from the [redacted for publication] community including two of E.G.’s friends, K.B. and I.M. Their parents no longer allow them to play with E.G.

[90]         The allegations arose from a time when K.B and E.G. were playing together and were in B.G.’s care.

[91]         Whatever circumstances formed the basis of the application for the recognizance, B.G. acknowledges that it is reasonable for K.B.’s mother to fear that he will harm K.B.

[92]         B.G. says that because this does not relate to his own children it is not relevant. I disagree. E.G. has lost two friends. That affects her security and well-being. It also means that B.G. has demonstrated poor parental judgement. This puts his children’s safety, security, and well-being at risk.

[93]          In addition, B.G. was told by Elders not to attend meetings at the [redacted for publication] in person. Therefore, B.G. cannot attend meetings with E.G. and R.G.  B.G. acknowledges that it is best for the children if they attend the [redacted for publication] with a parent.

[94]         The parties agree that the [redacted for publication] faith has been the focus of the children’s upbringing.  The children’s [redacted for publication] heritage has not been prioritized.

[95]         A.G. says that she wants to move with the children to [redacted for publication] because she has support in [redacted for publication], the cost of living is lower and the impact of the allegations against B.G. have made life on the [redacted for publication] difficult for her and the children.

[96]         A.G. emphasizes that prior to being married she had lived her whole life in [redacted for publication].  She notes that her family, friends and community are still there. A.G. says that she feels isolated on the [redacted for publication]. B.G. does not challenge this.   

[97]         A.G. says that if she remains on the [redacted for publication], there will be a significant disparity in the parties’ circumstances. She notes B.G. has family support and a level of financial security on the [redacted for publication]. In contrast, A.G. says that on the [redacted for publication], she is isolated and once the former matrimonial home sells, she will struggle financially with the cost of housing and childcare.

[98]         B.G. submits that the children should remain in the community where they have lived their entire lives.

[99]         B.G. says that A.G.’ s relocation plan lacks detail and that during A.G.’s testimony she did not propose reasonable and workable arrangements to preserve the relationship between the children and their father.

[100]      I agree that is a concern.

[101]      However, I accept A.G.’s testimony that once she and the children are required to move from the former matrimonial home, finding housing for her and the children on the [redacted for publication] will be challenging and expensive and that housing costs in [redacted for publication] are lower than on the [redacted for publication].

[102]      B.G. suggests that expert opinion evidence is required to establish that housing prices are lower in [redacted for publication] as compared to the [redacted for publication].  I disagree.  A.G. has made Internet searches and concluded that housing is more affordable for her and the children in [redacted for publication]. That is sufficient. I believe A.G.

[103]      A.G. says she has no supports on the [redacted for publication]. I accept that. I am satisfied that family and community support could enhance A.G.’s ability to care for the children. With those supports, it is more likely that A.G. will achieve a level of financial stability and that will benefit the children.

[104]      As noted by the Supreme Court of Canada, “A move that can improve a parent’s emotional and psychological state can enrich a parent’s ability to cultivate a healthy, supportive and positive environment for their child.” See Barendregt v. Grebliunas at paragraph 169.

[105]      A.G.’s move to [redacted for publication] will more likely than not improve her emotional and psychological well-being.

[106]      I appreciate that B.G. and his family are prepared to assist with childcare. However, on the totality of their evidence, I am not satisfied that they will provide the same level of support that A.G. will receive from her family and friends in [redacted for publication].

[107]      Furthermore, B.G. acknowledges it would be hard on the children if he was their full-time caregiver.

[108]      The fact that B.G. is bound by a recognizance is also concerning.  During a time that B.G. was caring for E.G. and K.B. he acted in a way that makes it reasonable for B.B. to believe that B.G. will harm K.B.

[109]      The allegations significantly affected the children and their mother. Two of E.G.’s friends are no longer allowed to play with her. A.G.’s community is aware of the allegations.  Moreover, it raises a real concern about B.G.’s parental judgment and his ability to parent full-time.

[110]      A.G. has demonstrated an ability to care for the children full time for an extended period. More support will enhance her ability to care for the children and provide greater financial security. Moreover, B.G. acknowledges it would be hard on the children if he was the children’s full-time caregiver. I have a concern about his parental judgment. These factors favour relocation.

[111]      The [redacted for publication] faith has been the focus of the children’s upbringing.  The parties have given preservation and protection of the children’s [redacted for publication] heritage less emphasis.  I am not satisfied that this would change if the children remain on the [redacted for publication] and were primarily in B.G.’s care.

[112]      B.G. suggests that relocation is inconsistent with the maximum contact principle. That is not a guiding principle.

[113]      Considering A.G.’s reasons for relocating and the best interests factors, I am satisfied that it is in the children’s bests interests to move to [redacted for publication] with A.G.

[114]      The parties agree that they should share parental responsibilities.  A.G. is the parent who spends the most time with the children and is responsible for the majority of the day-to-day decisions.  Furthermore, there is a concern about B.G.’s parental judgment and prior to separation, how he spoke to A.G.  Accordingly, A.G. shall have final decision-making authority subject to B.G.’s ability to apply for directions on any matter he considers to be contrary to the children’s best interests.

[115]      A.G. suggested four different parenting plans.  Each plan depends upon where the parties reside.  Now that relocation has been permitted, I am directing that the parties discuss parenting time and try to reach an agreement regarding parenting time.  If the parties are unable to do so within 30 days of receiving this decision, then either party may bring the matter back to court for submissions and the Court will determine the parenting time.  Neither party will be permitted to provide further evidence at that hearing.

[116]      B.G. earned approximately $64,468.00 in 2022.  The table amount of child support payable is $1,000.00.  A.G. earned approximately $47,107.00 in 2022.

[117]      B.G.’s share of special and extraordinary expenses is 58%.  A.G.’s share of special and extraordinary expenses is 42%.

[118]      For as long as the children are eligible to receive child support, the parties shall exchange: (a) copies of the respective income tax returns for the previous year, including all attachments, no later than June 1 each year; and (b) copies of any notice of assessment or reassessment provided by the Canada Revenue Agency, immediately upon receipt. 

[119]      By July 1 of each year, the parties shall review the information received and adjust the amount of child support payable with any change taking effect July 1 of that year.

[120]      At paragraph 92 of B.G.’s written submissions, he suggests that this was an interim hearing.  With respect, I disagree. This was a trial. Further, orders emerging from the adjudication of the issues on the merits at trial are final orders. See Routkovskaia v. Gibson 2020 BCCA 189 at paragraphs 18 to 34. The following orders are final orders: