C.M.B. v. B.D.G.

2014 BCSC 780 C.M.B. v. B.D.G.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: C.M.B. v. B.D.G., 2014 BCSC 780 Date: 20140506 Docket: E132225 Registry: Vancouver Between: C.M.B. Appellant And B.D.G. Respondent Before: The Honourable Madam Justice Fleming On appeal from: An order of the Provincial Court, dated June 25, 2013 (B.D.G. v. C.M.B., Nanaimo F66763). Reasons for Judgment Counsel for the Appellant: J.K. Broadhurst Counsel for the Respondent: J.C. Recalma Place and Date of Hearing: Vancouver, B.C. January 20, 21, and 23, 2014 Place and Date of Judgment: Vancouver, B.C. May 6, 2014 Introduction [1] This is an appeal from the decision of the BC Provincial Court, B.D.G. v. C.M.B., (25 June 2013), Nanaimo F66763 (B.C.P.C.), dismissing Ms. B.'s application to move from Nanaimo, BC to Edmonton, AB with the parties' two very young children A., born May 3, 2011, and S., born November 23, 2012. [2] Instead the Provincial Court granted Mr. G.'s application for equal parenting time. Specifically, the Provincial Court made an order recognizing both parties as guardians of the children, requiring them to share parenting responsibilities equally, and allocating parenting time on a three or four day rotation. A further term of the order required the parties to attend "alternative dispute resolution" prior to commencing any litigation regarding parenting issues. [3] The appeal is brought pursuant to s. 233(1) of

the Family Law Act, S.B.C. 2011, c. 25 ("FLA") which provides this Court with jurisdiction to hear appeals from orders of the Provincial Court made under FLA, excepting interim orders. [4] In support of her appeal Ms. B. applies to adduce fresh evidence which sets out her version of events regarding a missed overnight visit that occurred during the trial in Provincial Court. Mr. G. seeks to adduce new evidence, alleging Ms. B. recently breached the Provincial Court's order by making a further application to allow her to take the children to Edmonton for Christmas, before attending a form of alternative dispute resolution. Background [5] The background facts giving rise to the decision under appeal are as follows. [6] The parties began dating in 2004 while living in Edmonton where Ms. B. had grown up. Ms. B moved to Montreal in 2005. She later returned to Edmonton and the relationship resumed. [7] Mr. G. was also involved in a polyamorous relationship with two other women, Ms. A. and Ms. S. He and Ms. A. had known each other since they were teens. They had been living together since 2001. Mr. G. had a son with Ms. A., G., born in 2001, and a son with Ms. S., P., born in 2003 (the "boys"). The three co-parented both boys and lived together from 2001 to 2007. [8] Ms. B. was unaware of the sexual relationship Mr. G. had with Ms. A. and Ms. S. for some time. The two other women were

also unaware of the nature of Ms. B.'s involvement with Mr. G. They moved out when they learned of the relationship. Ms. A. returned. Ms. S. did not, but remained very involved and continued to co-parent both the boys. [9] In July 2010 the parties, Ms. A., Ms. S., and the boys moved from Edmonton to Nanaimo. Ms. S. moved into her own home with a common-law partner who later left. The boys spent half their time with Ms. S. and the other half with the parties and Ms. A., who lived in a home on property in Ladysmith belonging to Ms. G., Mr. G.'s sister-in-law. Ms. G. and Mr. G.'s brother were in a separate home on the same property with their children. Ms. G. had won the lottery and did not charge the parties and Ms. A. any rent for use of the home. [10] Ms. S., Ms. A. and Mr. G. have extended family in the area. Ms. B. does not. Most of her family live in Edmonton, including her parents and their partners, her siblings and many cousins, aunts and uncles. Ms. B.'s father and his very large family are francophone. [11] Mr. G. suffers from a chronic medical condition called psoriatic arthritis which affects his joints and skin. He is prescribed Remicade to treat the condition. Despite the condition, Mr. G. worked while living in Edmonton until two or three months before the move. He has not worked since the parties came to Nanaimo. After the move, both Ms. B. and Ms. A. found new

full time employment and their incomes supported the family. [12] Following the birth of A. in May 2011, Ms. B. took a maternity leave from her job as an insurance agent. She returned to work in April 2012. By then she was pregnant with S. [13] In or about the late spring 2012 Ms. B. told Mr. G. she wanted to travel with A. to Edmonton for her mother's 50th birthday. Mr. G. did not agree and Ms. B and A. did not make the trip. [14] In or about early July 2012, Ms. B. told Mr. G. she wanted to end the relationship and return to Edmonton with A. On July 13, 2012, Mr. G. obtained an order without notice to Ms. B. prohibiting either party from removing A. from Ladysmith or Nanaimo. Ms. B. and A. remained in the family home until August 14, 2012 when they left to stay with a friend. [15] Following the separation, Ms. B. alleged Mr. G. had been violent on various occasions and was financially and otherwise controlling. She reported an incident that she alleged had occurred in January 2012 to the RCMP. [16] A series of further interim orders were made by the Provincial Court in Nanaimo. [17] On August 20, 2012, Ms. B. was granted interim sole custody of A. and the parties, joint guardianship. Mr. G. was provided with specified access to A. three days a week. [18] On October 30, 2012 Cowling, Prov. Ct. J. granted another interim order that provided the parties with joint custody and

guardianship. Ms. B. was awarded primary residence of A. She was also permitted to relocate to Edmonton with A. between November 1, 2012 and January 31, 2013 so that she could have the support of her family during her late pregnancy and following the birth of the baby. The order required her to re-establish a residence in Nanaimo by February 1, 2013. Mr. G. received reasonable and generous access to A. The reasons for judgment provide it was anticipated that Mr. G.'s mother V.G. may exercise access to A. in Alberta while Ms. B was residing in Edmonton at such times as agreed upon by the parties and subject to V.G.'s health. V.G. had been diagnosed with terminal cancer. That same day, the Provincial Court granted directions regarding the access of Mr. G. and his mother. [19] Ms. B. and A. lived with her father and step-mother while in Edmonton before and after the birth of S. Her mother was also very involved. [20] After Ms. B. returned to BC with A. and S., two additional interim orders were granted. On February 25, 2013, Mr. G. was provided with specified but different access schedules for each child. On April 22, 2013 another interim order was granted without prejudice. It provided that the parties were guardians of the children. Mr. G.'s regular parenting time with A. included every Wednesday and Sunday from 10:00 am to 7:00 pm and Thursdays from 11:00 am until 6:00 pm on

Fridays. His parenting time with S. was far less, and included three visits a week for up to three hours per visit. The order also specified that Ms. B. was to be present for S.'s visits and permitted others, including Ms. A. and the boys, to attend. [21] Family justice counsellor Lisa Bury prepared a s. 15 report dated March 5, 2013. The report described Ms. B. as having concerns about the children being raised in a polyamorous environment, Mr. G.'s excessive use of alcohol and chronic unemployment, arguing and partying within the family home and a "very volatile fight" in January 2012. In discussing A., Ms. Bury noted she talks about her (maternal) grandparents and looks forward to spending time or taking with them. The family justice counsellor found both parties to be loving and considerate parents. She recommended the following: - Ms. B. maintain primary care of both children. - Mr. G. have access to A. two nights per week as well as other times mutually agreed upon; and to S. three times per week for two hours, increasing as S. grows older and more independent from breastfeeding. - Mr. G. abstain from alcohol while the children are in his care. [22] The overnight that formed part of the interim access schedule for A. did not occur on Thursday May 30, 2013. [23] At the trial, Ms. B. testified on her own behalf. She also relied upon the evidence of her father Mr. B., a

friend and colleague Ms. W., a long-time friend Ms. J.A., and psychologist Dr. Larry Waterman who provided Ms. B. with counselling after the separation. In support of his case, Mr. G. gave evidence along with Ms. A., Ms. S. and Ms. G. [24] The s. 15 report was admitted into evidence. The parties also relied upon an agreed statement of facts. [25] In closing submissions, Ms. B.'s counsel sought in the alternative an order that the current parenting schedule continue with some reduction in Mr. G.'s parenting time with A. to three days a week and no overnights until A. is three. She also asked that the prohibition on removing A. from the local jurisdiction be removed, allowing Ms. B. to travel with the children to Alberta for the purpose of bonding with the maternal family. The Trial Judgment [26] After briefly setting out the background facts, the trial judge identified the primary issues as follows: whether the parties are guardians pursuant to s. 39 of the Family Law Act ("FLA") and whether or not they should share parenting time and responsibility or whether Ms. [B] should be permitted to relocate to Alberta which invokes the provisions of section 69 of the FLA. [27] In reviewing the evidence of Ms. B., the trial judge described briefly her plans for the move to Alberta, which included obtaining improved employment, finding suitable housing and her view of the better preschool

and French immersion programs available for the children in Edmonton. The court set out Ms. B.'s proposed arrangements for ongoing contact between Mr. G., the children and the boys as twice monthly visits in Alberta and Skype communication. [28] The trial judge went on to describe Ms. B.'s opposition to shared parenting with Mr. G., given his use of alcohol, her view that he has poor parenting judgment, complaints of incidents of violence, and her disapproval of his polyamorous lifestyle. She noted Ms. B had denied contact in the past for what Ms. B. believed were legitimate reasons and court ordered overnight contact with A. during the trial. The trial judge found Ms. B. had not looked into school programs in BC or housing options and was focused on moving to Alberta. She also observed Ms. B. does not speak French but wants the children to attend French immersion. [29] In summarising the evidence of Ms. B.'s father, the trial judge stated he has not had much contact with her while she has been in Nanaimo and he has only met A. on two occasions, once in November 2011 and again in September 2012. [30] The trial judge did not discuss any of Ms. B.'s evidence alleging violence against Mr. G., except to note Ms. B. said she was coerced into the relationship and there was violence against her by Mr. G. on a number of occasions. The trial judge did however refer to Mr. G. and Ms.

A.'s version of events. She wrote (at para. 74): The court accepts the version of events concerning the "violence" alleged by Ms. B. as testified to by Ms. A. and Ms. S. and cannot find that Mr. G. is a violent man. The incidents were consensual and were the result of alcohol consumption and poor anger management. Ms. B. has not satisfied the court that the violence was perpetrated on her by Mr. G. for no apparent reason or that she was forced into the relationship. [31] In discussing what provisions of the FLA apply to Ms. B.'s mobility application, the court noted the case is anomalous because A. has been equally parented by the parties and S. has not resided with Mr. G., but pursuant to a court order, he has exercised "considerable" but not substantially equal parenting time. The court then concluded it is appropriate to apply the provisions governing parents with substantially equal parenting time set out in s. 69(5) and (6) to both children, referencing S.'s age and his "considerable exposure" to Mr. G. since coming to B.C. [32] Turning to the issue of good faith, the trial judge found it is "abundantly clear" that Ms. B. wishes to relocate because she is seeking to reduce contact between Mr. G. and the children, which would result in reduced contact with the two older boys and Ms. S. and Ms. A., who have played a large role in A.'s life. [33] The trial judge considered

Ms. B.'s offer of better employment in Alberta, but noted she has a good job in Nanaimo with a salary which is lower by "roughly" $4,000. She also considered Ms. B.'s wish to live in Edmonton because her family is there. The trial judge found Ms. B. had not had a strong bond with her family for many years and the support they would provide is available in Nanaimo through Mr. G., who is always available to look after the children. [34] She went on to conclude that the arrangements proposed by Ms. B. for continued contact between the children and Mr. G., the boys and the extended family are not reasonable and workable, given the driving time involved and Mr. G.'s financial circumstances. The trial judge specified that proposed contact through Skype with S. is completely unworkable and meaningless given his infancy. Referring to the evidence of Dr. Waterman, the psychologist who had provided counselling to Ms. B., and to the s. 15 report, the trial judge concluded the best form of bonding and attachment is through physical contact with caregivers and siblings. [35] Turning to the best interests test, the trial judge found the best interests of the children would not be served by the relocation, primarily because Mr. G. is a hands on and committed father. She accepted the evidence of Ms. A., Ms. S. and Ms. G. regarding his excellent parenting skills and how well he has co-parented

the boys without court orders in place. Finding Mr. G. "extensively" bonded with A. and seeking a committed relationship with S., the trial judge concluded he should be given an opportunity to do so. Further on she concluded it was vital for the children to continue their relationship with their father, their siblings and significant others in their lives. Ultimately she decided as follows (at para. 77): The best outcome for A. and S. is to remain here and not relocate to Alberta so that they can have equal parenting time with both parents and continue their relationship with their siblings and extended family and others who they are bonded with. The section 15 report recommends that the parents jointly parent the children which would not be possible if they are in Alberta with their mother. [36] She then dismissed Ms. B.'s application, found the parties are guardians of both children, and ordered them to share parenting responsibilities and parenting time equally on a three or four day rotation. The orders granted provide for no transition to equal parenting time for S. The trial judge did not address Ms. B.'s alternative application to cancel the without notice order that prohibited her from travelling with A. Standard of Review [37] The standard of review to be applied to the decision of a trial judge regarding matters of custody and access is set out in Van de Perre v.

Edwards, 2001 SCC 60, citing Hickey v. Hickey, [1999] 2 S.C.R. 518, where the Supreme Court of Canada concluded that the appeal court should not overturn orders of trial judges unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or an error of law. [38] Noting a court of appeal is not in a position to determine what it considers to be the correct conclusions from the evidence, the Court in Van de Perre said this (at para. 10): In preparing reasons in custody cases, a trial judge is not obligated to discuss every piece of evidence in detail, or at all, when explaining his or her reasons for awarding custody to one person over another. Because of this, trial judges might sometimes appear to stress one factor over another and, in fact, it may be said that this is inevitable in custody cases which are heavily dependent on the particular factual circumstances at issue. This situation does not open the door to a redetermination of the facts by the Court of Appeal. [39] In Housen v. Nikolaisen, 2002 SCC 33, the Court considered the standard of review for findings of facts and held such findings cannot be reversed unless the trial judge has made a "palpable and overriding error" (at para. 10). A palpable error is one that is plainly seen. The same degree of deference is owed to inferences of fact, because making a factual conclusion of any

kind is inextricably linked with assigning weight to evidence (at para. 19). Fresh and New Evidence [40] Before turning to the substantive issues raised by this appeal I will consider the parties' applications to adduce fresh and new evidence. The parties agree that the test for the admission of fresh evidence, and its distinction from new evidence, are accurately set out in Jens v. Jens, 2008 BCCA 392. There, the Court of Appeal reminds us that fresh evidence is evidence that existed at the time of the trial, but for various reasons could not be put before the court, whereas new evidence is evidence that became available after the trial. The well-known test for admitting fresh evidence, set out in R v. Palmer, [1980] 1 S.C.R. 759 and paraphrased in Jens at para. 28, requires the applicant to show: the evidence was not discoverable by reasonable diligence before the end of the trial; the evidence is credible; it would be practically conclusive of an issue before the court; and if believed, the evidence could have affected the result of the trial. [41] As discussed in Jens, where a party seeks to have new evidence admitted regarding events that occurred after the trial, the same test does not apply; new evidence will be admitted in only the rarest of cases (at para. 29). Those exceptional circumstances appear to be confined to where the trial judge made assumptions about future

events in order to calculate damages or for some other reason, and then, before an appeal was heard, the trial judge's assumptions are shown to be or have become incorrect, or where the refusal could lead to an injustice: North Vancouver (District) v. Fawcett (1998), 60 B.C.L.R. (3d) 201 at para. 26 (C.A.) (sub nom North Vancouver (District) v. Lunde, 162 D.L.R. (4th) 402); Levin v. Levin (1996), 84 B.C.A.C. 73 at para. 12. [42] A "slightly more elastic" approach is taken to the admissibility of fresh evidence in family law cases, accounting for the interests of justice in not having a decision contrary to the known facts: Luney v. Luney, 2007 BCCA 567 at para. 31, leave to appeal ref'd, [2008] S.C.C.A. No.

90. This is particularly so where the best interests of children are concerned: Stav v. Stav, 2012 BCCA 154 at para. 31, leave to appeal ref'd [2012] S.C.C.A. No.

230. The Court of Appeal in Stav noted, however, the need for caution in admitting either fresh or new evidence because to do so takes the appeal beyond the trial record and the error seeking function of the court, creating uncertainty, expense and the potential to give a party a chance to make up for deficiencies in his or her case at trial (at para. 32). [43] In the instant case, the interim order in place at the time of the trial provided that Mr. G.'s parenting time with A. included an overnight on Thursdays. No overnight visit occurred on Thursday May 30, 2013. Instead Mr. G. saw the children after court from 5:00 to 7:00 pm. Ms. B. had completed her evidence and her case was closed by then. On that day, before the visit, Mr. G. testified that he was supposed to have an overnight visit but he did not know if the visit would happen (Transcript, May 30, 2013 at pp. 42-43): Q. And you said -- what about this week? You're supposed to have an overnight with A., is it your understanding that that will happen? A. We talked about it yesterday, but I don't know where that went. Q. Okay THE COURT: When's your overnight tonight -- this week? A. Today should be my overnight. THE COURT. Tonight? A. Yeah. Yesterday would have been my first 10-hour day visit with A. Ms. B. did let me take A. for dinner last night, and I don't -- we don't have an agreement for tonight as far as I know. Q.

Yeah, I think we -- it's a -- it's still a question mark? A. Yeah. [44] The following day on May 31, 2013, Ms. A. testified that the overnight visit did not occur. [45] It is clear from the transcript that the trial judge was very concerned by the missed visit. In response to Ms. A.'s evidence, she asked counsel whether the visit was court ordered. Shortly after that, the trial judge referred to the missed visit as "extremely serious" and a "blatant disregard" of the court's order. She also noted that Mr. G. had told her the day before that he was expecting access that night (Transcript, May 31, 2013 at pp. 13, 94, 95). [46] Ms. A. was cross examined about the issue of access during the trial and her awareness of text messages exchanged by the parties (Transcript, May 31, 2013 at p. 43). [47] During closing submissions, the trial judge expressed concern about Ms. B.'s willingness to facilitate access. She noted she still had not been told why the visit did not occur but she regarded the matter as "extremely serious". Ms. B.'s counsel advised the court that she believed there was an understanding the overnight would not occur based on discussions she had with Mr. G.'s counsel prior to the missed overnight. The response of the trial judge was this (Transcript, May 31, 2013 at p. 95): THE COURT: it really is very troubling for the court to have a clear case right in the face of

the court that a court order doesn't mean very much when it comes to ensuring that there's maximum contact. [48] Ms. B.'s own counsel then submitted that Ms. B. declined the overnight visit in response to the text message from Mr. G. acknowledging visits would perhaps be shorter due to the trial (Transcript, May 31, 2013 at pp. 98-99). [49] In her reasons for judgment the trial judge concluded that Ms. B. wished to move to reduce contact between Mr. G. and the children. She stated (at para. 70): Also notable is whether or not Ms. B. would even facilitate such contact with the passage of time, as she has shown a cavalier attitude toward court orders for access as evidenced by the failure to give access to Mr. G. in the middle of this trial. [50] Ms. B. seeks to admit her own affidavit evidence regarding the missed overnight visit because the issue of the missed overnight visit arose after she had finished testifying and her case was closed. She attaches as an exhibit to her affidavit a series of text messages exchanged between the parties which she says show that Mr. G. initiated discussions about the impact of the trial dates on the access schedule, leading her to believe he was not able to take the children in accordance with the court order. Ms. B. also deposes that the parties agreed Mr. G. would have the children on May 29 and 30, 2013 from 5 to 7 pm and he did not indicate

he wanted them overnight. [51] Ms. B. says she was not given an opportunity to contradict the evidence of Ms. A. before the end of the trial. [52] Mr. G. does not dispute the accuracy of the text message exchange Ms. B seeks to have admitted. He does assert however that Ms. B. denied his parenting time during the trial and that he did not acquiesce to losing an overnight visit with A. His evidence goes on to deal with circumstances surrounding a subsequent application by Ms. B. for permission to travel to Edmonton with the children at Christmas time. [53] Ms. B. argues her fresh evidence is "hugely" relevant because the trial judge inferred from the evidence of Ms. A. and Mr. G. that Ms. B. denied access to Mr. G. in breach of the court order. This finding, she says, is a linchpin in the court's decision. [54] Mr. G. takes no position on whether his new evidence should be admitted if Ms. B.'s fresh evidence is not admitted. [55] He argues the text messages fail the first part of the test for fresh evidence because they were discoverable before the end of the trial. I agree. The text message exchange started on May 24, 2013 and concluded on May 30, 2013 at 6:57 pm. Ms. B. was present in court on May 31, 2013, when Ms. A. gave her evidence. Indeed Ms. A. was cross examined by Ms. B.'s counsel regarding the missed overnight visit and her knowledge of the text message exchange now

attached to Ms. B's affidavit. Ms. B. did not seek leave to provide rebuttal or reply evidence. It is not the case that Ms. B.'s fresh evidence could not have been put before the trial court. Consequently, her fresh evidence runs afoul of the Court of Appeal's caution in Stav that the more flexible approach to admissibility of fresh evidence in family cases should not enable a party to correct deficiencies in his or her case at trial. [56] I am also not persuaded that if believed Ms. B.'s fresh evidence could have changed the result of the trial. In her fresh evidence, Ms. B. simply states that Mr. G. at no point indicated he wanted A. overnight. However, Mr. G.'s testimony as set out above was to the effect that he would like them overnight although he was waiting to see what he and Ms. B were able to agree to. The text message exchange shows that on May 24, 2013 Mr. G. initiated a discussion of how the trial dates would impact on access and stated he would still appreciate seeing them "a little", perhaps after court. In response Ms. B. suggested he take A. after court on Thursday for dinner, describing it as something similar to the normal schedule. He replied on the same day with "Kk". Mr. B.'s testimony expressing an interest in the overnight visit occurred six days later. The text message exchange would appear then to be overtaken by this evidence and other events at

trial. Ms. B.'s affidavit evidence is also inconsistent with the position taken by her counsel on the issue at trial, that the missed overnight was the product of a misunderstanding. Accordingly I decline to admit Ms. B.'s fresh evidence. [57] Given Mr. G.'s position and the extremely high test for the admission of new evidence, I decline to consider further his application. Grounds of Appeal [58] The appellant's outline of argument sets out the following grounds of appeal: 1. The trial judge incorrectly applied the legal test for mobility cases by: a. Considering a scenario where both parties remain in Nanaimo, contrary to section 69(7) of the Family Law Act; b. Applying the incorrect legal standard to the analysis of "good faith" under section 69(4)(a)(i) of the Family Law Act; c. Applying the incorrect legal standard to the analysis of "reasonable and workable access" under section 69(4)(a)(ii) of the Family Law Act.

2. The trial judge significantly misapprehended the evidence in a way that affected her conclusion.

3. The trial judge failed to properly consider the family violence component of the best interest test as required by section 38 of the Family Law Act. [59] In my view, the fundamental issue raised by this appeal is whether the trial judge erred in determining it was not in the best interests of the children to allow their relocation to Edmonton and instead deciding it was in their best interests to leave equally with both parties. In order to resolve this issue it is necessary to examine the following questions: 1. Did the trail judge err in law or principle by failing to interpret s. 69(7) as requiring the court to consider a two scenario approach in determining whether the proposed relocation was in the best interests of the children?

2. Did the trial judge err in law or principle by failing to properly consider the family violence component of the best interests test as required by s. 37(2) and s. 38 of the FLA?

3. Did the trial judge err in law or principle in determining the best interests of the children and or did the trial judge materially misapprehend the evidence in reaching her conclusions about the best interests of the children? [60] Prior to examining the above questions it is necessary to resolve the correct interpretation of s. 69(4) and (5) with respect to determining the best interests of the child. [61] In oral submissions the parties also dealt with whether the trial judge erred in law or significantly misapprehended the evidence in applying s. 69(5) rather than s. 69(4) to Ms. B's relocation application. Therefore, I will also consider that question. Discussion Role of the best interests test under s. 69(4) and (5) of the FLA [62] The FLA provides two approaches to relocation applications which depend upon whether there is an existing agreement or order regarding parenting arrangements. Where a child's guardian wishes to relocate and there is a written agreement or an order respecting parenting arrangements or contact with the child in place, such as here, the relevant provision is s.

69. It provides in part as follows: (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. [63] Section 69(4) applies to relocation applications if the guardians do not share substantially equal parenting time, with the child. When they do share substantially equal parenting time s. 69(5) applies. Both s. 69(4) and s. 69(5) require the applicant to show that the relocation is being sought in good faith and that the proposed arrangements for preserving the child's relationships are reasonable and workable. Where the provisions differ is in how the court is to consider the best interests of the child. Section 69(4)(b) requires the court to consider the relocation as being in the child's best interests if the applicant satisfies the court of the other criteria set

out in s. 69(4)(a). Section 69(5) on its face requires the applicant to satisfy the court of all criteria including that the relocation is in the best interests of the child. [64] It appears both parties accept that s. 69(4)(a)(i) and (ii) should not be interpreted as setting out threshold tests that prevent the court from considering the children's best interests, if they are not established. That is, under both s. 69(4) and (5), even if the court finds the application for the proposed move was not made in good faith and or reasonable and workable arrangements were not proposed, it must still consider whether the move is in the best interests of the child. [65] There is some case law interpreting s. 69(4) and (5) and the court's ability to assess the best interests of the child. [66] In L.J.R. v. S.W.R., 2013 BCSC 1344, Betton J. concluded that s. 69(4) requires the relocating parent to satisfy the court that the criteria set out in s. 69(4)(a) have been met, in order for the court to consider the child's best interests. In other words, they are preconditions to the best interests test. Observing that this approach is inherently flawed because the move may be nevertheless in the child's best interests, the court invoked the court's parens patriae jurisdiction to analyze the child's best interests. [67] In Hadjioannou v. Hadjioannou, 2013 BCSC 1682, Fisher J. also examined th

the approach prescribed by s. 69 but in the context of a s. 69(5) application. Interpreting s. 69 in the legislative context of s. 37(1), which mandates that the best interests of the child are the only consideration in "family law decisions" affecting children, Fisher J. found that it would be inconsistent to interpret s. 69 as precluding the court from considering the child's best interests. She read s. 69(3) as establishing additional considerations to the best interests of the child (at paras. 16-17): The primary consideration in family law decisions affecting children has long been the best interests of the child. It remains so under the Divorce Act and in accordance with the principles set out in Gordon v. Goertz. Now, under s. 37(1) of the Family Law Act, it is to be the only consideration. In relocation decisions, however, the court is directed to consider the factors under s. 69(4)(a) -- good faith and the reasonable and workable arrangements -- in addition to the child's best interests. Section 69(3) provides: Despite section 37(1), 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. I think it would be inconsistent to interpret s. 69 in a way that would preclude the court from assessing the child's best interests. [68] Fisher J. referred to the

factors listed in s. 69(4)(a) as setting out evidentiary requirements bearing on that ultimate issue (at para. 17): Clearly, if the relocating parents fails to establish [69(4)(a)(i) and (ii)], the proposed relocation may not be in the child's best interest. There may, however, be cases where the opposite conclusion may be reached and the court should not be foreclosed from assessing all factors as they pertain to the child's best interest. [69] With reference to L.J.R. she concluded (at para. 20): Whether my interpretation of the legislation would allow this to take place or whether it would be under the parens patriae jurisdiction, either way, the court must consider whether a proposed relocation is in the child's best interest. [70] The analysis of Fisher J. in Hadjioannou was applied in A.J.D. v. E.A.E., 2013 BCSC 2160. In that case the court also concluded that s. 69 must be interpreted to allow the court to determine the child's best interests. At paras. 36-37, Harris J. wrote: I agree with Madam Justice Fisher that the factors in s. 69(4)(a) bear on the ultimate issue of what is in the best interests of the children. In that regard the definition of "good faith" in s. 69(6), and particularly subsection (b) involve a consideration of matters which relate directly to whether the proposed relocation is in the best interests of the children. I also agree that a finding that

a relocating parent has not acted in good faith does not necessarily mean the proposed relocation is not in the best interests of the child. In all cases the court must determine if the proposed relocation is in the child's best interests. [Emphasis added.] [71] I agree with the conclusions reached regarding the interpretation of s. 69 in Hadjioannou, and A.J.D. It is well-established that the proper approach to statutory interpretation is Driedger's "modern approach". In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 21, the Court stated: Although much has been written about the interpretation of legislation Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [Citations omitted.] [72] The modern principle is consistent with s. 8 of the Interpretation Act, R.S.B.C. 1996, c. 238, which reads: Enactment remedial 8 Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and

interpretation as best ensures the attainment of its objects. [73] As noted in Hadjioannou, s. 69(3) provides context for s. 69(4) and (5). It makes the court's obligation to consider the child's best interests as prescribed in s. 37(2) clear, even when s. 69(4)(a)(i) and (ii) are not satisfied. The question then becomes what does s. 69 require, according to the modern approach, when there is a conflict between the court's conclusions regarding the child's best interests and the other factors. Section 69 falls within Part 4 of the FLA. Part 4 is entitled "Care of and Time with Children". It begins with Section 37(1) which obligates the parties and the court to only consider the best interests of the child when making parenting arrangements. Parenting arrangements are defined to include both parenting time and parenting responsibilities (s. 1). Section 69(3) purports to limit the application of s. 37(1) to s. 69 relocation applications by requiring the court to also consider the factors set out in s. 69(4)(a) in addition to the best interest factors set out in s. 37(2). In my view, this limit cannot be read as derogating from the overriding importance of the best interests of the child in determining whether to allow a guardian to move with a child, a decision which is fundamentally about the potential effect on the child of entirely new arrangements for parenting time. [74]

Accordingly I also conclude s. 69(3) requires that the court take into account the additional criteria of good faith and reasonable and workable arrangements, as opposed to being bound to refuse a relocation application when the court finds the move to be in the best interests of the child but good faith and or reasonable and workable arrangements are not established. [75] While I agree with the conclusion in Hadjioannou and A.J.D. that many of the factors under s. 69(6) are closely tied to the bests interests of the child, some factors, such as notice of the relocation under s. 69(6)(c), appear to contemplate other interests or are perhaps procedural incidents of the best interests rubric. In my view, reading s. 69(4) and (5) in the context of s. 69(3) and s. 37, satisfaction of the additional criteria of good faith and reasonable and workable arrangements is a precondition to a relocating guardian benefiting from a presumption that the move is in the child's best interests. [76] This interpretation accords with the further well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences which would arise from a strict or literal interpretation of s. 69(4) and (5), bearing in mind their distinction based on the amount of parenting time guardians enjoy. On a literal reading of s. 69(4), lack of good faith and or lack of

reasonable and workable arrangements appeared to Bretton J. in L.J.R. to preclude the court from considering the child's best interests. Alternatively, that subsection is silent about whether the court can consider the child's best interests in those circumstances. A literal reading of s. 69(5), however, clearly requires the court to always consider best interests. It would be absurd for a relocating parent with greater parenting time under s. 69(4) to be subject to a more restrictive test than a relocating parent under s. 69(5). On this point, I note the following excerpt from Hansard, 39th Leg., 4th Sess., Vol. 28, No. 8 (23 November 2011), dealing with the approval of s. 69 of the FLA by the legislature (at 1540): L. Krog: I note in sub (4) it says I'm just curious to know why we're talking about situations where you don't have substantially equal parenting time, as opposed to just leaving the question open. What's the intent behind that? Hon. S. Bond: To the member opposite: as he points out, there are two different tests. The tests are different depending upon whether or not the guardians of the child having substantially equal parenting time. Subsection (5) actually deals with situations in which the guardians have substantially equal parenting time. In such a case, obviously, both of the parents play a significant role in the child's day-to-day life, and it's probably

harder to maintain the relationship if there were a move. So in that case the threshold is higher, and the moving guardian has full responsibility for satisfying the court that the move is made in good faith, that it's reasonable and continues to allow workable arrangements. L. Krog: Just for practical purposes, I interpret section 69 to basically say that if the court is satisfied that it's not in the child's best interests, then you're just going to have to stay or move without the child. That's the way I interpret this section. Hon. S. Bond: Yes, that's correct. [Emphasis added.] [77] While the court in L.J.R. resorted to its parens patriae jurisdiction to remedy the deficiency in the statutory language of s. 69, in my view that approach is not preferable. As noted by Mr. G., turning to the parens patriae jurisdiction of the Supreme Court to determine the child's best interests regarding a proposed relocation, in the absence of good faith and or reasonable and workable arrangements, would mean the Provincial Court is prevented from engaging in this analysis. This cannot have been the intention of the legislature. [78] To summarize, I have concluded that the correct approach under s. 69(4) and (5) is for the court to consider whether the proposed relocation is made in good faith and whether reasonable and workable arrangements have been proposed. If one or both of these criteria are not met, the court must still go on to consider whether the proposed relocation is in the child's best interests. Satisfaction of good faith and reasonable workable arrangements is necessary in order for a relocating guardian to benefit from the presumption under s. 69(4)(b) that the move is in the best interests of the child.

1. Did the trail judge err in law by failing to interpret s. 69(7) as requiring the court to consider a two scenario approach in determining whether the proposed relocation was in the best interests of the children? [79] Ms. B. argues forcefully and in considerable detail that the trial judge erred in her approach to determining the children's best interests by considering the following two scenarios: a. the mother moves with the children to Edmonton and the father remains in Nanaimo; and b. both parents remain in Nanaimo with the children. [80] Ms. B. submits that the correct approach required the trial judge to choose between the mother moving to Edmonton with the children and the father remaining in Nanaimo, or the father staying with the children in Nanaimo and the mother moving to Edmonton on her own. The status quo cannot be considered. [81] She argues this is the approach contemplated by the Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27, the leading decision on mobility applications. I disagree. [82] In that case the Court considered the relevant provisions of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and the father's application to vary the existing order providing the mother with permanent custody and the father generous access. The mother was planning to move from Saskatoon to Australia with the child to study orthodontics. The mother brought a cross application permitting her to move. The trial judge granted her application. [83] McLachlin J. (as she then was), writing for the majority, summarised the law as follows (at para. 49): 1. The parent applying for the change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

2. If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.

5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.

6. The focus is on the best interests of the child, not the interests and rights of the parents.

7. More particularly the judge should consider, inter alia: (a) the existing custody arrangements and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; (c) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) the custodial parent's reasons for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child; (f) disruption to the child of a change in custody; (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [84] The two scenario approached outlined by Ms. B. is clearly inconsistent with the circumstances the court is required to consider under paragraph seven - namely, the existing custody arrangements and relationship between the child and the custodial parent, and the existing access arrangements and the relationship between the child and the access parent. [85] McLachlin J. concluded the importance of the child remaining with the custodial parent must be weighed against the continuance of full contact with the child's access parent, extended family and community (at para. 50): The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as

new? [86] Ms. B. submits that after Gordon, a so called third option whereby both parties stay, preserving the status quo, crept into the case law but was subsequently rejected by the Court of Appeal in a series of cases. In Nunweiler v. Nunweiler, 2000 BCCA 300, the Court of Appeal held that Gordon also applies to cases involving initial custody determinations and voiced disapproval of the status quo being presented as default position because (at para. 30) [it] re-inserts into custody discussions a presumption which is contrary to the instructions in Gordon v. Goetz to assess each case individually [87] Of course, the presumption imbedded in the status quo is one in favour of the remaining parent as opposed to the moving parent. Another way of putting it is the status quo option violated the custodial parent's entitlement to respect for his or her views, assuming of course it was the custodial parent who sought to move with the child. [88] In S.S.L. v. J.W.W., 2010 BCCA 55, Huddart J. A. rejected the status quo or third option approach (at para. 12): In my view, the trial judge fell into what is an easy error in difficult parental mobility cases, to prefer what is seen as the status quo, if, in response to the other parent's proposed parenting plans, the parent seeking to move offers what some judges have called the "third option" of not moving, if moving means leaving the

children behind. The status quo is allowed to supersede the balancing of the other relevant factors. That is not the correct approach: see Chera v. Chera, 2008 BCCA 374 at para. 60; Spencer v. Spencer, 2005 ABCA 262 at paras. 15-19. [89] In Spencer v. Spencer, 2005 ABCA 262, the Alberta Court of Appeal had said (at para. 18): In conducting this inquiry, it is problematic to rely on representations by the custodial parent that he or she will not move without the children should the application to relocate be denied. The effect of such an inquiry places the parent seeking to relocate in a classic double bind. If the answer is that the parent is not willing to remain behind with the children, he or she raises the prospect of being regarded as self interested and discounting the children's best interests in favour of his or her own. On the other hand, advising the court that the parent is prepared to forgo the requested move if unsuccessful, undermines the submissions in favour of relocation by suggesting that such a move is not critical to the parent's well-being or to that of the children. If a judge mistakenly relies on a parent's willingness to stay behind "for the sake of the children," the status quo becomes an attractive option for a judge to favour because it avoids the difficult decision the application presents. [90] The facts in S.S.L. involved two school aged children

whose parents had been sharing custody for about five years before the mother applied to move with the children from Victoria to London, Ontario. They spent 40% of their time with the father. The trial judge decided the children's best interests required they stay in Victoria whether their mother moved or not. He concluded the children's loss of contact with their father and the disruption to their strong school and community ties outweighed the material and educational benefits of moving. [91] Huddart J.A. concluded that in joint parenting cases the evidence must be analyzed in four scenarios (at para. 24). Applied to the facts of the case, they included: primary residence with mother in London; primary residence with father in Victoria; shared parenting in London; and shared parenting in Victoria. She further held that when the question of primary residence is evenly balanced and the court finds the best interests of the children require both parents to be in the same locale, then the court will need to choose between the two shared parenting scenarios (at para. 24). [92] As the respondent points out, the Court of Appeal has not been entirely unequivocal in its approach to the issue of the status quo. For example, the court in Stav, commented as follows (at para. 64): I should observe, however, that I perceive a problem with the stricture against courts expressly taking into

account evidence of what one or the other parent would do depending on the decision made by the trial judge in relation to mobility. It is arguable that avoidance of questions giving rise to the double-bind is directed more to the interests of the parents than it is to the interests of the children. It may be unfair to place either or both of the parents in the double-bind, but is it unfair to the children? Is it contrary to their best interests? Arguably, the answer is that it is only by asking this question of both parents and assessing their answers, that the court can make a determination in the children's best interests, cognizant of all of the options. [93] In addition, Newbury J.A. for the majority of the Court of Appeal in R.E.Q. v. G.J.K., 2012 BCCA 146, expressed concern about the reasoning in Gordon being turned into a rigid set of rules that undermine the principle that the best interests of the child are the trial judge's only consideration. She did so with express reference to a number of prior decisions including S.S.L. (at paras. 57-58): The reader might also be forgiven for questioning whether the complex and convoluted reasoning now required of a trial judge in cases of this kind is in fact consistent with the overarching principle that as stated in Gordon v. Goertz, the best interests of the child are not merely "paramount" in mobility cases but are "the only

consideration." The Court's statement that the views of the custodial parent are "entitled to great respect" has evolved into a de facto presumption in favour of the wishes of the custodial parent - notwithstanding the fact that the majority of the Court ... rejected the imposition of a presumption. As seen above, the de facto presumption has been reflected in suggestions that the "rights" of custodial parents are inconsistent with restrictions on their mobility with the children, and that such restrictions should exist only in the "rarest of cases". [T]he de facto presumption has been extended from variation applications to cases where an initial determination of custody is being made (Nunweiler), and more recently, to cases in which the parents are sharing custody and are in fact co-parenting (S.S.L.). It is not clear how the "great respect" principle should work where both parents are custodial parents. [94] Newbury J.A. went on to observe that the apparent prohibition against placing the custodial parent in a "double bind" by inquiring if he or she will move without the children, seems to have made considering the status quo impermissible as a possible outcome, despite the Court of Appeal having also said that the best interests of the child must be considered "in the round" (at para. 58). She then suggested it may be time for the Supreme Court of Canada to consider whether

mobility cases should be determined referring only to children's best interests or whether the unspoken factor, the mobility rights of custodial parents, is also a proper consideration (at para. 59). [95] The majority in R.E.Q. upheld the trial judge's decision to deny the mother's application to move with the children from Maple Ridge to Calgary. In doing so, the trial judge had considered two scenarios: the children moving to Calgary with their mother, or remaining in Maple Ridge with their mother and their father being in Vancouver but planning to move to Maple Ridge. He found the second scenario to be in the children's best interests. [96] Thus by the time the FLA came into force, the state of the law in BC was unsettled regarding the proper approach to the status quo in determining mobility applications. [97] In the instant case the parties' applications were made pursuant to the FLA. Much like the Divorce Act, the FLA makes the bests interests of the child the court's only consideration in making an order respecting parenting arrangements. [98] Ms. B. argues that s. 69(7) of the FLA specifically prohibits the court from considering the status quo in determining the best interests of children in a mobility case. To reiterate, it reads as follows: 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. [99] The provision has been the subject of some judicial comment. In Hadjioannou at para. 26, Fisher J. noted s. 69(7) addresses the "double bind" issue that was raised in cases such S.S.L. and Hejzlar v. Mitchell-Hejzlar, 2011 BCCA 230. She did not, however, canvass the scope of the double bind issue itself. In M.M. v. C.J., 2014 BCSC 6, Jenkins J. clarified that s. 69(7) is meant to codify the Court of Appeal cases that say the trial judge must not consider a statement by the relocating parent that he or she would not move without the child. He noted the language of the subsection is overbroad and instead prohibits the court from considering any statement by the relocating parent about whether or not he or she would move (at paras. 45-47). [100] In M.M. the father testified he would move regardless because his work required it. Jenkins J. concluded that it would be irrational to apply all four scenarios when a parent is moving for a good faith reason, such as a work requirement, because it creates a potential discrepancy between what the court is allowed to consider and the reality of the situation for the parties. Consequently and consistent with the approach approved by the majority in R.E.Q., Jenkins J. analyzed the relocation based on the only two realistic scenarios: the child living with the father in Alberta and the child

remaining with the mother in BC (at paras. 48-51). [101] There are at least two aspects to the concern about the double bind. One is the potential prejudice to the relocating parent's application from putting undo weight on the relocating parents' willingness to move without the children. In other words, the double bind creates a risk of misjudging the parent as unduly self-interested. This factual conclusion may then become a significant factor in determining good faith and the children's best interests, when a parents' willingness to move or stay in and of itself is arguably not probative of the child's best interests. [102] The second aspect to the concern is that where the relocating parent says he or she will not move without the children, the status quo will likely be the preferred or default option because in most cases regular involvement with both parents is preferable to regular involvement with only one. This form of reasoning is seen to offend the mobility rights of relocating parents and, as was noted in Nunweiler, amounts to presumption in favour of the remaining parent. In my view, it is the effect of this second aspect of the double bind that caused Newbury J.A. to opine that the best interests test was in danger of being compromised by a rigid set of rules. Put another way, one would expect the Gordon imperative of showing great respect for the views of the

custodial (moving) parent ought to fall away when both parents share custody equally. Any insistence on prohibiting consideration of the status quo in shared custody situations becomes really a tacit presumption in favour of moving parents. [103] Ms. B. argues fairly strenuously that s. 69(7) was enacted to codify the Court of Appeal cases (excepting R.E.Q., I assume) and to forbid consideration of the status quo or the existing arrangements, instead requiring the two scenario approach in evaluating the best interests of children. I do not agree. [104] In my view the subsection cannot properly be interpreted to limit the court from engaging in a "full and sensitive inquiry" into the best interests of a child, now defined in s. 37(2) of the FLA. To do so is to risk prioritizing the rights of the relocating parent, over the best interests of a child. In addition s. 69(7) applies to relocation applications as a whole. It is difficult to imagine how the court might properly assess reasonable and workable arrangements to preserve the child's relationship with the other guardian if not permitted to consider the parenting arrangements that exist at the time of the application. [105] Further, prior to the FLA and R.E.Q., evidence of the status quo as opposed to "double bind" statements, was a potential albeit discouraged consideration at the best interests stage. If the apparent

aversion to the status quo developed in part to avoid the presumptions prohibited by Gordon and to respect the views of the custodial parent, it is important to observe that s. 69(4) of the FLA includes a rebuttable presumption that a proposed move is in the best interests of a child where the parents do not share equally substantial parenting time. In T.C. v. S.C., 2013 BCPC 217, Dhillon Prov. Ct. J. observed that while the best interests of the child remains the most fundamental principle in relocation cases, how the court arrives at that determination has shifted under the FLA. Given that relocating parents applying under s. 69(4) now have the benefit of a rebuttable presumption regarding the child's best interests, providing them with the added advantage of prohibiting any consideration of the status quo or existing parenting arrangements cannot have been the intention of the legislator. [106] Ms. B.'s interpretation of s. 69(7) is also inconsistent with the views expressed by the Ministry of Justice in the Family Law Act Transition Guide (Continuing Legal Education Society of British Columbia, 2012), where it explains s. 69 prohibits a court from inquiring into and considering whether a guardian would still relocate if the application is refused for this reason (at 3.70): This was addressed in the common law and is generally considered to be an impossible question to

answer with little probative value. It can hardly be said that evidence about existing parenting arrangements in determining the best interests of a child has little probative value. [107] Further, I note the excerpt from Hansard, 39th Leg., 4th Sess., Vol. 28, No. 8 (23 November 2011), regarding the approval of s. 69 of the FLA, wherein it is made clear that s. 69 was not intended to be a codification of the common law but a whole new approach to relocation (at 1535): On section 69 L. Krog: With respect to section 69, does this amount to sort of a codification of what the Supreme Court of Canada said about location cases, or is this language different - more progressive, less progressive? Hon. S. Bond: It is not codifying. In fact, it is very much based on the consultation process that we undertook. Hon. S. Bond: I do want to go back and, on the record, make sure, as we were talking about relocating a parent It is precedent-setting in Canada. There is no Canadian jurisdiction that approaches it this way. Actually, some of the language that was developed looked at some American states which have some type of shifting presumption or burden of proof. Alabama, Indiana and Wisconsin, for example, were jurisdictions that we looked at and considered. In fact, some of our language is based on the model that's in place there, but it is not in place in Canada. [108] Accordingly I agree

with the interpretation of s. 69(7) which provides that a trial judge must not consider a statement by the relocating parent that he or she would not move without the child as opposed to whether or not he or she would move without the child. I do not agree the provision prohibits the court from considering the status quo or existing arrangements in place at the time of the application. In my view, s. 69(7) requires the court to discount any statements by the relocating spouse that he or she would not move without the children and engage in an analysis of the child's best interests in accordance with s. 37(2), the scope of which will depend upon the reality of the situation. [109] In any event, here the issue of the scope of the analysis of the children's best interests is complicated by Mr. G.'s application for equal parenting time. In my view it would have been impossible for the trial judge to decide that application without considering the existing parenting arrangements or status quo. [110] Finally I note the range of evidence put before the trial judge in this matter. Mr. G. and Ms. A. testified about their unwillingness to move back to Edmonton for a variety of reasons, including the disruption for the boys, making the scenario of shared parenting in Edmonton an unrealistic option for the court to consider. Neither party nor any other witness testified about how the

children might be impacted if they were to live with Mr. G. in Nanaimo without Ms. B. The "second scenario" that Ms. B. says the judge was required to consider was therefore not in evidence. Ms. B. made no submissions about how the appellate court should deal with the absence of evidence before the trial judge regarding Mr. G. providing care to the children full time in Nanaimo. In light of my conclusions regarding the proper interpretation of s. 69(7), Mr. G.'s competing application for equal parenting time, and the evidentiary gap regarding the other scenario, I cannot conclude the trial judge erred by failing to consider it. [111] Having reached the conclusion that the trial judge did not err by failing to interpret s. 69(7) as requiring the court to consider a two scenario approach to the proposed relocation, I turn next to consider whether the judge erred in her consideration of the family violence component of the best interests test, mandated by s. 37(2) and s. 38 of the FLA.

2. Did the trial judge err in law by failing to properly consider the family violence component of the best interests test as required by s. 37(2) and s. 38 of the FLA? [112] Ms. B. argues the trial judge failed to properly consider the family violence component of the best interests test, as required by s. 37 (2)(g) and (h) and s. 38 of the FLA. [113] Section 37(2)(g) and (h) of the FLA provide: (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: (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; [114] Section 38 of the FLA states: For the purposes of section 37 (2) (g) and (h), a court must consider all of the following: (a) the nature and seriousness of the family violence; (b) how recently the family violence occurred; (c) the frequency of the family violence; (d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member; (e) whether the family violence was directed toward the child; (f) whether

the child was exposed to family violence that was not directed toward the child; (g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence; (h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring; (i) any other relevant matter. [115] Family violence is defined in the FLA as follows: "family violence" includes (a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm; (b) sexual abuse of a family member, (c) attempts to physically or sexually abuse a family member, (d) psychological or emotional abuse of a family member, including (i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property, (ii) unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy, (iii) stalking or following of the family member, and (iv) intentional damage to property, and (e) in the case of a child, direct or indirect exposure to family violence; [116] Ms. B. submits the trial judge only briefly examined the issues of violence that affected the family. She did not consider the "full constellation of violence present in this case", or how the

violence affected the children. Ms. B argues the trial judge also failed to evaluate the allegations in their proper context, that context being the polyamorous relationship Mr. G. shared with Ms. B., Ms. A. and to a lesser extent, Ms. S. Ms. B. characterizes Mr. G. as controlling, both financially and emotionally, and occasionally physically violent. [117] She relies upon the decision of Bauman, C.J.S.C. (as he then was) in Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588, upholding the constitutionality of the provision criminalizing polygamy. In that case, the court found the practice of polygamy to be inherently harmful. The finding was not confined to religious polygamy and included the following (at paras. 8-13): Women in polygamous relationships are at elevated risk of physical and psychological harm. They face higher rates of domestic violence and abuse, including sexual abuse. Competition for material and emotional access to a shared husband can lead to fractious co-wife relationships. These factors contribute to the higher rates of depressive disorders and other mental health issues that women in polygamous relationships face. Children in polygamous families tend to suffer more emotional, behavioural and physical problems, as well as lower educational achievement than children in monogamous families. Another significant harm to children is

their exposure to, and potential internalization of, harmful gender stereotypes. Polygamy also institutionalizes gender inequality. [118] In deciding upon the constitutionality of s. 293, the court concluded that the provision prohibits practicing or entering into a "marriage" with more than one person at the same time, whether sanctioned by civil, religious or other means, and whether or not it is by law recognized as a binding form of marriage. [119] By arguing the trial judge should have evaluated the allegations of family violence in light of the findings in Reference re: Section 293, Ms. B is in effect saying the trial judge was required to take judicial notice of those findings. [120] There are three problems with that submission. One, the trial judge was not asked to do so as far as I can tell. Two, taking judicial notice of a fact found in a prior judicial proceeding is not entirely straightforward and Ms. B. has not made submissions on this point. Three, the court in Reference re: Section 293 determined the offence of polygamy is not directed at multi-party, unmarried relationships or common-law cohabitation. Therefore its finding regarding polygamy as inherently harmful cannot be said to necessarily extend to those relationships. That is not to say that the court found them not harmful, but rather that they do not fall within the scope of the finding regarding

polygamy. [121] Accordingly, I cannot conclude that the trial judge erred by failing to consider the allegations of violence occurred in the context of a relationship that was inherently harmful. [122] The issue of whether or not the parties' polyamorous relationship and the children's ongoing exposure to Mr. G.'s polyamorous lifestyle may impact their best interests is one to be decided on the evidence. It is clear that Ms. B. was concerned about how Mr. G.'s sexual lifestyle may impact on the children. She testified for example, to a specific concern about Ms. A. being identified to S. as her mother and how this may cause confusion. There is no discussion of the issue of polyamory and its potential impact on the children's best interests in the reasons for judgment. I note at the conclusion of Mr. G.'s evidence, the court questioned him. At p. 114 of the May 30, 2013 Transcript, the trial judge asked Mr. G. briefly about his lifestyle and whether there is a religious reason for it. Mr. G. said "no", and described his polyamory as just a lifestyle choice. The trial judge then confirmed that "it" was not a religious sect or cult. While a more sensitive inquiry into how Mr. G.'s polyamory may impact on the children and the boys may well have been warranted, I cannot conclude the absence of such an inquiry is a reversible error. [123] Ms. B. also argues the trial judge's failed

to analyze the impact of family violence on the children's best interests, as required by s. 37(2) (g), (h) and s. 38 of the FLA. [124] As noted above, the trial judge preferred the evidence of Mr. G. and other witnesses to that of Ms. B. regarding the alleged incidents of violence. In her reasons she discussed the evidence of Mr. G. and Ms. A. very briefly, but not Ms. B.'s. With respect to the incidents of violence, she noted that both Mr. G. and Ms. A. described Ms. B. as the instigator, after drinking alcohol. The trial judge also noted Ms. A.'s description of Ms. B. as "equally involved in the dissension", and that Ms. A. said she was sober during the incidents although Mr. G. was not. In addition she found Ms. B. to be a forceful individual and perhaps manipulative. Despite the brevity of her reasons and although I may well have reached different findings, I cannot conclude that the trial judge materially misapprehended the evidence in coming to these findings of fact. [125] However, the Provincial Court's subsequent discussion of the issue of violence does raise significant concern. I note firstly the trial judge referred to Ms. B.'s allegations as allegations of "violence", placing quotations marks around the word violence, suggesting the trial judge did not regard the incidents as violent. Mr. G. and Ms. A.'s version of events included some violent behaviour by both

parties. The trial judge then stated she cannot find that Mr. G. is a violent man, and the incidents were "consensual" and the result of both alcohol consumption and poor anger management. The reasons make no reference to Mr. G.'s aggression toward Ms. S. during the January 2012 incident with Ms. B. That incident involved Mr. G. requiring Ms. S. to leave the home and causing her to fall from the couch, where she had been sleeping prior to the arrival of Mr. G. and Ms. B., onto the floor. Ms. S. was left to walk some distance very late at night on a large rural property from the home the parties shared with Ms. A. to another building. [126] The trial judge wrote Ms. B. had not satisfied the court that the violence was perpetuated on her by Mr. G. "for no reason". This is a troubling conclusion. Of course it is not for Ms. B. to prove she was the innocent victim of violence, nor is the "consensual" nature of the violence at all meaningful when determining the best interests of the children. The reasons for judgment do not discuss or refer to the mandatory factors set out in s. 37(2)(g), (h) and s. 38 of the FLA. It is evident from trial judge's approach to Ms. B's allegations of violence, coercion and control and her conclusions, that she did not consider the mandatory provisions including but not limited to the impact of any exposure to the alleged incidents of violence on the boys, and with respect to A., the last incident. The factors she did consider were inconsistent with the mandatory considerations. In my view, this is an error of law.

3. Did the trial judge err in law or principle in determining the best interests of the children and or did the trial judge materially misapprehend the evidence in concluding it was not in the best interests of the children to relocate to Edmonton with Ms. B.? [127] During her submissions, Ms. B. argued the trial judge significantly misapprehended the evidence in a way that affected her conclusion, which I take to mean the larger conclusion that the application to relocate must be denied. Some of the errors of fact set out below relate to evidence relevant to particular aspects of the children's best interests, as well as the s. 69(4)(a) factors. Although he disputes the suggestion that the trial judge misapprehended the evidence or failed to consider relevant evidence, Mr. G. does not argue with some of the errors of fact identified by Ms. B., such as the following: a. the trial judge found the appellant had not made any inquiries about schooling and programs, including French immersion for the children in Nanaimo when the evidence was she had done so; and b. the trial judge found the salary difference between the job available to Ms. B. in Edmonton and her job in Nanaimo was roughly $4,000. The evidence was the Edmonton job offered an annual base salary that was $6,000 higher with better benefits, an RSP contribution plan and a shorter work week, allowing for more time with

the children. [128] The trial judge also erred in stating that Ms. W. admitted that opportunities for improving employment prospects in the insurance field were good in Nanaimo. Ms. W. is a friend and co-worker of Ms. B. Ms. W.'s evidence was instead she herself had been offered a promotion managing a new branch of the insurance business where she and Ms. B both worked, but it was the first opportunity for advancement that had come up in five years. [129] Perhaps most importantly, the trial judge erred in her factual findings regarding the involvement of the children and Ms. B. with her own family and in particular, Ms. B.'s father in Edmonton. At para. 27 she wrote Mr. B. had only met A. on two occasions, once in November 2011 and again in September 2012. Further on, she described it as notable that Ms. B. has not had a strong bond with her family for many years. The evidence was much different than this. Ms. B. and A. actually lived with Mr. B. and his wife for three months, when she was permitted to leave Nanaimo for Edmonton in late October 2012 for the express purpose of having the support of her own family during her late pregnancy and following the birth of S. Mr. B. also testified that he had remained in constant, if not daily, contact with Ms. B. by phone since the parties' separation during the summer of 2012. A. has participated in Skype visits with Ms. B.'s family

in Edmonton since returning to Nanaimo (Transcript, May 29, 2013 at p. 67). Ms. Bury, the Family Justice Counsellor who prepared the s. 15 report, noted that A. talks about her (maternal) grandparents and looks forward to spending time or talking with them. Finally, Ms. B.'s mother had visited her and the children in Nanaimo and was caring for them while the parties attended the trial. [130] Following the hearing of the appeal, the parties were asked to provide further written submissions on whether the trial judge erred in her application of s. 37(2) of the FLA to both parties' applications and in reaching the conclusion that the parties should share parenting time with both children equally. At the hearing of the appeal Ms. B. had confined her submissions regarding the best interests test to the trial judge's approach to the alleged incidents of family violence, an alleged error that involved confusing or conflating the best interests and good faith tests, and how this court might apply the s. 37(2) factors upon allowing the appeal. [131] In her further written submissions Ms. B. notes the mandatory nature of both s. 37(1) and (2), which mean the court must consider only the best interests of the child and all of the enumerated considerations in subsection (2). The application of s. 37(1) is only modestly attenuated by s. 69(3) as discussed above. Section 37(3) further

provides that an 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. It is also important to observe that the court is required by s. 37 to determine the best interests of the child, meaning each child. Many of the mandatory factors require to the court to consider various features that are personal to each child, such as his or her heath and emotional well-being; the nature of his or her relationships with significant others; the history of his or her care; and the child's need for stability, given his or her age and stage of development. [132] In her reasons for judgment, the trial judge simply concluded the best interests of the children would not be "served" by the relocation, primarily because Mr. G. is a "hands on and committed father" as he has shown with A. while she lived with him and with the boys, who continue to live with him. She expressly accepted the evidence of Ms. S. and Ms. A. describing his parenting skills as excellent. Finding he is already extensively bonded with A., the trial judge concluded he should be given the opportunity to do so with S. The trial judge went on to observe that Ms. B.'s evidence suggests that the proposed move to Edmonton is to suit her wishes rather than the best interests of the children. She decided it

is vital for the children to continue their relationship with their father, their siblings and significant others in the lives. [133] Ms. B. argues the reasons for judgment illustrate that, rather than reviewing the s. 37(2) factors in the context of the proposed move, the trial judge concluded Mr. G. was a capable father and then allowed the separation that would arise from the move to be the only factor that was truly considered. I agree. The trial judge's analysis of the children's best interests focuses almost entirely on Mr. G.'s bonding with A. and his entitlement to do so with S., given his successful parenting of the older children. The trial judge appears to equate the best interests of the children with those of Mr. G. Her reasoning is similar to the error identified by the Court of Appeal in Stav where the trial judge was found to have treated the children's best interests as inextricably tied to or synonymous with those of the mother (at para. 144). [134] Conversely, the trial judge juxtaposed the best interests of Ms. B. and those of the children in deciding the move was really just to suit her own wishes. This part of the analysis was facilitated by the errors of fact discussed above and the trial judge's conclusion that Ms. B. was moving to thwart the children's relationship with Mr. G. There were objective reasons for the move. It was not disputed that Ms. B.

had received an offer of better employment in Edmonton with her former employer and her large extended family was available to provide support to her and the children. Having concluded Ms. B. was acting in bad faith, and having erred in her findings of fact about the improvement in salary and other benefits offered by the Edmonton job and the nature and depth of Ms. B's and the children's involvement with her own family, the trial judge erred by failing to properly consider whether and how a move to Edmonton may be in their best interests. [135] At the time of the trial, Mr. G. had been unemployed for approximately three years. He had made no financial contribution to the children's care prior to separation and his child support payments after that had been minimal. Improving the mother's income, benefits and work schedule would of course impact favourably on the children. Similarly receiving the support and love of Ms. B.'s family, in light of the actual history of involvement, was an important factor to consider and weigh in examining each child's best interests. In Stav the Court of Appeal put the matter this way (at paras. 89-90): ... Ulterior reasons for moving which are a thinly disguised attempt to thwart contact with the other parent are clearly relevant to whether a parent is acting in the children's best interests. Similarly, reasons for moving which benefit the

person seeking to relocate can also be for the benefit of the children, but have to be weighed together with the other evidence to determine whether the move is in the children's best interests. The fact that a move is in the best interests of the parent seeking to relocate does not necessarily mean that it will be in the children's best interests. It is more likely to be so if the person seeking to move is the custodial parent with a healthy relationship with the children [136] Ms. B. makes the further submission that in contrast to the trial judge's discussion of Mr. G.'s parenting ability and bonding with A., there is no reference to Ms. B.'s capabilities as a parent or either child's attachment to her. The evidence including that of Mr. G. was to the effect that she provided excellent care to the children. She breast fed both of them (S., until not long before the trial). While Mr. G. and Ms. A lived with A. full time prior to separation in August 2012, Ms. B. was at home on maternity leave with A. until she returned to work in April 2012. Ms. B. and other witnesses testified to A.'s negative response to the introduction of overnight visits with Mr. G. Mr. G. disputed this evidence. The issue of how the existing parenting schedule may have been affecting A. was not discussed in the reasons. Nor does the trial judge refer to the history of S.'s care and that by the time of

trial, at the age of approximately six months, he had never really been away from Ms. B. In his own evidence, Mr. G. testified that he would like to spend more time with S. but that S. was not yet ready for overnights. There was no other evidence before the court to support a conclusion that it was in the best interests of S. to immediately remove him from Ms. B. half the time. [137] The reasons for judgment contain no express discussion of how either party's application might impact on either child's psychological or emotional well-being. [138] I am satisfied that the trial judge erred in principle and misapprehended, or overlooked important evidence relevant to a range of mandatory factors that must be considered in determining each child's best interests - both with respect to Ms. B.'s application to relocate, and with respect to Mr. G.'s application for equal parenting time. I am also satisfied that those errors had a significant impact on the result. Substantially Equal Parenting Time [139] Ms. B. argued in oral submissions the trial judge erred in concluding her application was subject to s. 69(5), rather than s. 69(4). Ms. B. submits it was an error to find as she did that A. had been "equally parented by both parents" and then go on to apply s. 69(5) to both children. In response, Mr. G. submits it is clear from the reasons of the trial judge that with or without a

presumption of best interests in s. 69(4), the court would have come to the same conclusion. [140] At the time of the trial, Mr. B. had parenting time with A. every Wednesday and Sunday from 10:00 am to 7:00 pm and every Thursday from 11:00 am until Friday at 6:00 pm, pursuant to an interim without prejudice order. There really can no argument that Mr. G.'s parenting time with S. was far less than equal, given that visits were up to three hours each, three times a week. Ms. B. complains the trial judge provided no explanation for why s. 69(5) applied to S. as well as A. [141] In her reasons, the trial judge concluded S. had had "considerable exposure" to Mr. G. since coming to BC. She attributed Mr. G.'s less than substantially equal time with S. to Ms. B. because she had chosen not to share parenting. The trial judge then concluded as follows (at para. 57): the appropriate section to apply in determining the best interests of the two children are sections 69(5) and (6). [142] Ms. B. calculates that A. was with Mr. G. for a total of 49 out of 168 hours per week or 29% of the time, if hours are used as the unit for the calculation of time. In M.K.A. v. A.F.W., 2013 BCSC 1415, the father brought an application pursuant to s. 69 seeking an order prohibiting the mother from moving with their seven year old daughter. The father had parenting time with the child two nights a week

overnight. He also took her to swimming lessons one night a week and had some vacation time with her. The court concluded the parties did not have substantially equal parenting time, noting that if the father spent a full four weeks on vacation with the child, in addition to the weekly schedule, the child would be spending approximately 36% of her time with him. [143] Barrow J. discussed what constitutes substantially equal parenting time in H.D.M. v. S.W.T., 2013 BCSC 1863. Observing that substantially equal is something different than precisely equal time, Barrow J. was satisfied that the child spending five days out of 14 amounted to substantially equal parenting time. He reached that conclusion with reference not only to the schedule, but also bearing in mind a term of the parties' separation agreement providing for shared parenting with a goal of 50:50 parenting time, and the history of equal parenting time from 2008 until February 2013, approximately 10 months before trial. [144] In this case, A. was spending four days a week including one overnight with Mr. G., with the schedule for each of those days being specified. Here there was no agreement that the parties were working toward equal parenting time with A. A. had lived with both parties prior to her leaving the home with Ms. B. in August 2012. After that, a series of interim order had governed Mr. G.'s parenting time

with A. including an order that provided for her to reside in Edmonton for approximately three months. Upon her return to BC, two interim orders were made that provided for substantially the same schedule. From there on, A. spent slightly more of the total number of days each week with Mr. G., and six of seven nights each week in the care of Ms. B. Given her very young age and the needs of such young children for close supervision and intensive care, where A. spent her evenings, nights and mornings was important to the calculation of parenting time. [145] The FLA provides no guidance on this point. H.D.M. sets out a holistic approach to the assessment of parenting time suggesting the determination is not a simple matter of calculation, and M.K.A. did not discuss how the time was or ought to be calculated. In addition I note there is no universal formula for counting time that children spend with each parent, when the court is required to determine whether parents share parenting for the purpose of child support. In Berry v. Hart, 2003 BCCA 659, the Court of Appeal said with regard to calculating time for the purpose of applying s. 9 of the Federal Child Support Guidelines, SOR/97-175 (at para. 10): In my view the issue is a matter of judgment not amendable to simply a time accounting exercise. I consider that in determining whether the threshold level for application of s. 9 is

met the question is whether the paying parent spends such a sizeable percentage of time with a child or children that, on any reasonable view of the evidence and considering the advantage that may accrue to a child in spending the occasional additional day, part day or hour with a parent, one can say reasonably that the 40 percent or more level is achieved. It follows, in my view, that a court may assess child -parent time as meeting the s. 9 criteria without a tight accounting. That assessment should be made by considering the broader context of the parenting arrangement. [146] As much as a calculation based on hours makes very good sense in these circumstances, and although I may well have concluded the parties did not share substantially equal parenting of A., given the lack of clarity in the state of the law, I am not able to conclude the trial judge's failure to do so was an error. [147] In my view it was however, not correct for the trial judge to apply s. 69(5) to S. as well as A., given the very limited parenting time Mr. G. had spent with him. It is clear from her reasons that the trial judge viewed Mr. G.'s desire for equal parenting with S., given his relationship with A. and his history of parenting the boys, as sufficient to overlook the statutory requirement. In my view the proper approach would be to observe the anomalous result arising from the children's

different parenting schedules with the parties and then to resolve any discrepancy arising from the different burdens on Ms. B. vis-à-vis the best interests of each child at that stage of the analysis. Given the trial judges' conclusions that Ms. B was not acting in good faith and she had not proposed reasonable and workable arrangements for ongoing involvement between the children and Mr. G., Ms. B. would not have benefitted from the presumption under s. 69(4)(b) in any event. For the reasons set out below, I have considered this issue largely in order to provide guidance about how it should be addressed in the future. [148] Given my conclusions about the overriding nature of the best interests test in determining relocation applications pursuant to s. 69 of the FLA, it is not necessary to consider Ms. B.'s other grounds of appeal related to good faith and reasonable and workable arrangements. Conclusion [149] Section 233(3) of the FLA sets out what this court may do after hearing an appeal from the Provincial Court: (a) confirm or set aside the order of the Provincial Court; (b) make any order that the Provincial court could have made; (c) direct the Provincial Court to conduct a new hearing. [150] Given the errors identified above regarding the trial judge's approach to the issue of family violence, her failure to consider mandatory factors regarding family violence as well

as a range of other prescribed best interests factors in s. 37(2), and her misapprehension of important evidence relevant to each child's best interests, I set aside the order of the Provincial Court. [151] Ms. B. has urged this court in the event of a successful appeal to go on to make its own determination of the best interests of the children rather than remit the decision to the trial court. [152] In my view, the evidence and the issues in this case are such that it is not feasible for this court to do so. Although remitting the matter to the trial court will result in further delay, uncertainty and considerable cost to the parties, the circumstances of the parties and the children have no doubt changed since the order under appeal was made and significant new evidence will likely need to be heard. [153] There is one exception to my conclusion that the decision must be remitted to the Provincial Court - and that is with respect to Ms. B.'s alternative application to vary the without notice order granted July 14, 2012 prohibiting the parties from removing A. from the Ladysmith or Nanaimo. I am satisfied on the evidence from the trial record that it is in the best interests of A. that this order should be vacated to allow Ms. B and both children to have ongoing meaningful involvement with their maternal family in Alberta, subject to any further order of the Provincial Court allowing Ms. B's relocation application. Accordingly the appeal is allowed and the matter is remitted to the Provincial Court for a new trial on all issues before a different trial judge on the earliest possible available dates. [154] Ms. B. shall have her costs on this appeal. "Fleming J."