L.S. v. R.S.

2014 BCSC 1213 L.S. v. R.S.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: L.S. v. R.S., 2014 BCSC 1213 Date: 20140630 Docket: 50671 Registry: Vernon Between: L.S. Claimant And R.S. Respondent Before: The Honourable Madam Justice Dickson Reasons for Judgment Counsel for Claimant: Carolyn R. Christiansen Counsel for Respondent: Roberta L. Jordan Place and Date of Trial: Kelowna, B.C. March 10-14, 2014 March 17-19, 2014 Place and Date of Judgment: Vernon, B.C. June 30, 2014

INTRODUCTION [1] The parties in this family law proceeding are English. They met and married in England, where their two young children, B.C.S. and L.I.S., were born. In July 2010 they decided to start afresh and moved the family to a small community near Vernon, British Columbia. When they arrived they were granted permanent residency status in this country. [2] In November 2011 the parties separated. In July 2012 they executed a separation agreement pursuant to which they share joint custody and joint guardianship of the children. The children's residence alternates between the two homes on a rotating weekly basis. Although saddened by the separation, the children have adjusted and seem to be doing well. [3] The claimant mother, L.S., now seeks an order permitting her to relocate the children back to England, as well as ancillary orders. The respondent father, R.S., opposes the proposed relocation.

ISSUES [4] The primary issue for determination is whether L.S. should be permitted to relocate the children to Kent, England. Other issues related to the applicable statute, parenting arrangements and a proposed protection order must also be determined.

PRELIMINARY OBSERVATION [5] Most of the facts in this case are uncontroversial. In so far as the parties differ on factual matters, the differences are primarily in focus and interpretation of past events. I am satisfied that both attempted to provide an accurate account of what transpired from their own perspective. I am also satisfied that both accurately described their interpretations of events, expectations and future goals. [6] Each party accepts that the other is a loving parent who wants the best for B.C.S. and L.I.S. While they disagree on what this entails, each acknowledges the importance of the other in the children's lives. To varying degrees, however, each was critical of the other in matters of attitude, conduct and character. Generally speaking, I found L.S. the more unfairly critical of the two. She was also less insightful regarding her own contribution to past and current parenting problems and unrealistic in her future plans and expectations. This observation informs my findings and analysis, as set out below.

FACTUAL BACKGROUND [7] L.S. is 43 years old. She was born and raised in Kent, England, where her family continues to reside. [8] R.S. is 56 years old. He was born and raised in Cornwall, England, where much of his family continues to reside. [9] After leaving school, L.S. completed secretarial training and worked in an office setting. She also worked as a waitress, a groom and a cook. [10] After leaving school, R.S. worked as a farmer. [11] L.S. and R.S. met in 2003 when both were living in Cornwall. L.S. had been previously married. R.S. was married to C.S. at the time. [12] L.S. had no children from her previous marriage. R.S. and C.S. had three children, aged approximately 11, 14 and 15. [13] When L.S. and R.S. met, R.S. lived and worked on his family's estate and farm in Cornwall. L.S. worked as a chef at a local residential home, where C.S. also worked. [14] R.S. and C.S. separated in early 2004. Shortly thereafter, L.S. quit her job and came to live with R.S. on the farm. [15] C.S. and R.S.'s three children moved to the nearby village after the separation. The relationship between R.S. and C.S. was acrimonious, as was the relationship between C.S. and L.S. [16] In early 2004 L.S. became pregnant. She was surprised and pleased because she had been told she could not have children due to a medical condition. R.S. was initially taken aback by the pregnancy. He was, however,

supportive throughout. [17] B.C.S. was born on December 23, 2004. The birth was difficult, but B.C.S. was a healthy and easygoing baby. [18] L.S. has a very close and loving relationship with her mother, P.F. P.F. came to Cornwall to be with L.S. when B.C.S. was born. Thereafter P.F. visited the family in Cornwall about once a month, often for several-day stretches. In so doing, she developed a close relationship with her grandson (and later also with her granddaughter, L.I.S.). [19] L.S. had some difficulty adjusting to motherhood. For the most part, however, she enjoyed it very much. Although I accept that, as R.S. testified, L.S. had brief moments of frustration with B.C.S. when he was a baby, I find they were transient and without serious long-term consequence. I also find that R.S. was an involved, supportive father who regularly participated in caring for B.C.S. [20] L.S. spent most of her time caring for B.C.S. when he was a baby and toddler. In addition to R.S., she often had help from her mother P.F. and a series of au pairs who came into the home. She also took B.C.S. to a local daycare. Although her primary focus was homemaking, L.S. helped R.S. on the farm and did related paperwork. Throughout this period, the partnership was mutually supportive on all fronts. [21] Shortly after B.C.S. was born L.S. was diagnosed with Meniere's disease and Raynaud's syndrome.

Although they presented at roughly the same time, the two conditions are not related. Meniere's disease involves symptoms of vertigo, dizziness and ear ringing. Raynaud's syndrome involves coldness and numbness of the extremities. [22] L.S.'s hearing began to fail due to the Meniere's disease and, for a time, her confidence was shaken. She began to take medication, however, and quickly regained most of her normal function. In the circumstances, she sensibly became more careful about driving and walking down stairs. [23] R.S. and L.S. married on May 12, 2006. [24] L.S. became pregnant again in late 2006 and immediately stopped taking the Meniere's medication. She did not have a recurrence in her Meniere's symptoms until 2013. [25] L.I.S. was born on July 16, 2007. Like her brother, L.I.S. was generally healthy, although she was a more challenging baby. [26] As a result of his divorce from C.S., R.S. had to sell the farm in Cornwall and a rift developed with his family members. In addition, as noted, the relationship of R.S. and L.S. with C.S. was extremely strained. By the time L.I.S. was born, the parties agreed they should make a fresh start in Canada. As a result, they made several exploratory trips and engaged the services of an immigration company. [27] Eventually L.S. and R.S. settled on an area near Vernon, British Columbia as the place for their family's new beginning

(the "Current Location"). They bought two properties there: a rental residence in a small town ("Saddleview") and a large family residence on 78 acres on a nearby mountainside ("Bluenose"). They were also granted permanent residency status allowing them to live in Canada for a five-year period. At the end of this period they will be entitled to reapply. [28] In July 2010, L.S., R.S., and their children moved to the Current Location. They transported furniture, two horses and three cats from England to their new home at Bluenose. At first, they lived in a log cabin on the property and renovated the residence. Neither worked outside the home and both cared equally for the children. Eventually, they earned income by renting out Saddleview and the log cabin. [29] R.S. testified and I accept that L.S. was initially enthusiastic about Bluenose and the family's new life in the Current Location. L.S. testified and I accept that she soon found the location isolating and became homesick for family and friends in England. For these reasons R.S. and L.S. agreed they would try hard to settle into their new home for a year and then re-evaluate their options. [30] As in England, L.S. and R.S. had help from au pairs, family and daycare for the children in the Current Location. P.F., who is presently aged 68, came to visit from time to time and continued to nurture her relationship with her

grandchildren. In September, 2010 B.C.S. began to attend grade 1 at the local elementary school. L.I.S. attended a local daycare center, initially for three days a week and eventually for five. [31] At first both parents drove the children back and forth to town for school, daycare and social activities. The town is located about a half-hour drive down a steep mountain from Bluenose and there is no bus service. L.S. found the road hard to drive in the winter. As a result, from about November, 2010 on R.S. did most of the driving into town with the children. [32] B.C.S. and L.I.S. adjusted well to the move and their new home in the Current Location. B.C.S. made friends quickly and enjoyed school, where he did very well. L.I.S. took a little longer to settle in, but also did well after a short while. [33] Like their children, L.S. and R.S. made friends in their new community. In addition, L.S. maintained very regular contact with family and friends in England via telephone and computer. R.S. also maintained contact with his other children who were there. [34] In March, 2011 L.S. returned to England for a school reunion. She spent four weeks there visiting with family and friends. The children stayed at home in Canada with R.S. while L.S. was in England. He cared for them on his own throughout this period. [35] At the March 2011 school reunion, L.S. became reacquainted with her

current fiancé, J.M. J.M. was separated from his wife at the time. She saw him again when she returned to England in November, 2011 for a second school reunion. They decided to pursue the relationship and stayed in touch via computer and telephone. [36] Like the first, L.S.'s second trip to England in 2011 lasted four weeks. As before, R.S. stayed home and cared for the children while L.S. was gone. [37] By mid-2011 L.S. was feeling unsatisfied with her marriage to R.S. and her living arrangements. She felt communication was poor and blamed R.S. for being unsupportive of her point of view. Although I accept that R.S. contributed to the parties' communication difficulties, in my view it is clear L.S. found life with R.S. unstimulating and, in her eyes, he could do little right, despite his considerable efforts to please her. It is equally clear that she has limited, if any, insight into her own contribution to the breakdown of the marital relationship. [38] Shortly before she left for England in November, 2011, L.S. told R.S. that she wanted to separate. When she returned to Canada four weeks later, she told him she wanted a divorce. She did not tell him about her developing relationship with J.M. [39] R.S. was understandably distressed by L.S.'s decision to end the marriage. He did not, however, respond inappropriately, as L.S., her mother and her friend, A.A., appeared to

suggest. In particular, I reject the testimony of A.A. that R.S. displayed inappropriate emotions and behaviour at the daycare at this painful time in his personal life. In my view, his actions in expressing distress and seeking comfort through a hug from an acquaintance were well within the range of normal given the context. [40] After L.S. returned to Canada from the November 2011 trip to England both parties continued to live at Bluenose, despite their separation. At the direction of L.S., she and the children lived upstairs and R.S. moved downstairs. Not surprisingly, this was an uncomfortable arrangement for everyone and, when P.F. visited at Christmas, she witnessed considerable tension. Given the circumstances, it could hardly have been otherwise. [41] L.S. and P.F. both testified that R.S. behaved oddly and inappropriately during this period. For example, they testified that R.S. stared at them from outside the house and exhibited signs of undue anger. I do not accept this testimony as realistic or fair. On the contrary, having been banished to the basement because L.S. no longer wanted him, I am satisfied that R.S. maintained a reasonable level of emotional calm and restraint, even if he did occasionally look through the windows or express a measure of irritation. His level of self-containment benefitted B.C.S. and L.I.S. at what might otherwise have been an even more

unhappy and challenging time for them. [42] L.S. and R.S. attended for counselling during this period, individually and together. Although the couples counselling was unsuccessful, the individual counselling was valuable for both. [43] In the spring of 2012, L.S. took the children to England for a seven week visit. B.C.S. was in school then, but, at L.S.'s request, R.S. agreed that he could be taken out for the trip and signed the necessary travel permission forms. While they were gone, R.S. maintained telephone contact with the children. He also became progressively upset by the end of the marriage and begged L.S. to reconsider. [44] According to L.S. and P.F., when L.S. and the children were in England R.S. made remarks to the effect that he might end his life. Although R.S. denied making such statements, I accept the testimony of L.S. and P.F. as accurate and find that, in the heat of the moment, he did so. I also find these statements were made in a transitory state of deep distress brought on by the unwelcome end of his marriage. Shortly after making these statements, R.S. quickly regained his emotional equilibrium. [45] While in England in 2012, L.S. and the children stayed with L.S.'s parents. She told them of her relationship with J.M., although she had not yet told R.S. While in England, L.S. spent much of her time with J.M., sometimes with the children and sometimes

without them. At one point, she and J.M. took a week-long trip together and the children stayed behind with their grandparents. At another, she and J.M. took the children on a weekend trip with J.M.'s children, two boys who were then aged 12 and 9. [46] L.S. and J.M. testified that all four children got along extremely well and the 2012 trip was great fun for B.C.S. and L.I.S. While I accept this may be true, neither L.S. or J.M. showed an inkling of appreciation that it would also have been jarring, and perhaps upsetting, for two young children to be so intensely exposed to their mother's new romantic partner and his sons without any advance notice or gradual introduction. As discussed below, this lack of sensitivity to the children's needs and interests is a matter of some concern. [47] L.S. and the children returned to Canada at the end of the trip accompanied by P.F. P.F. testified she came along because she was concerned for their welfare given her assessment of R.S.'s then unstable mental state. Although I am satisfied that, while upset, R.S. did not actually present any danger to L.S. or the children, I accept that P.F. made the journey for this reason. The fact she did so reflects her close bond and devoted attitude toward her daughter and grandchildren. [48] Shortly after L.S. and the children returned to Canada the parties began to negotiate a separation agreement.

With the help of counsel, on July 3, 2012 they executed a written agreement (the "Separation Agreement"). Pursuant to its terms, L.S. obtained, amongst other things, exclusive title to Saddleview and R.S. obtained exclusive title to Bluenose, both of which properties are unencumbered. Joint custody and guardianship with equal parenting on an alternating weekly basis were also agreed upon. This equal parenting arrangement has remained in place ever since the Separation Agreement was executed. [49] When the Separation Agreement was executed, L.S. moved from Bluenose to Saddleview. She also informed R.S. of her relationship with J.M. Within a few weeks, J.M. arrived in British Columbia. He immediately moved into Saddleview with L.S. and the children. [50] J.M. is employed in the telecommunications industry in England. He has considerable flexibility in this line of work and stayed with L.S. and the children at Saddleview until May, 2013. During this time, he was unemployed and did not contribute significantly to household finances. His sons, one of whom has special needs associated with autism, visited twice from England. As before, P.F. also visited from time to time. [51] In December, 2012 J.M. and L.S. experienced a serious episode of conflict. I am unable to make clear findings as to precisely what occurred or why the conflict escalated to the point that it did. Based on their

testimony, however, I am satisfied that both J.M. and L.S. became very upset, at least in part because J.M. was missing his children. At one point, L.S. locked herself in the bathroom. In response, J.M. struck and damaged the door. Shortly thereafter, he left Saddleview for a few days and stayed in a nearby hotel. [52] B.C.S. and L.I.S. were aware of the conflict between J.M. and L.S. [53] Tellingly, L.S. immediately called R.S. for help and support when she and J.M. experienced this episode of conflict. Equally tellingly, R.S. immediately responded and came over to help when L.S. asked that he do so. L.S. told R.S. she'd made a mistake, and for a day or two it appeared they might reconcile, which they unwisely shared with the children. Within a few days, however, L.S. and J.M. had reconciled and R.S. was cast aside again. I infer that the entire experience was upsetting and disorienting for B.C.S. and L.I.S. [54] When he returned to England in May 2013 J.M. resumed work in the telecommunications industry. Shortly thereafter, he was diagnosed with testicular cancer. Fortunately, treatment has gone well and he seems to be in good health, although the situation remains somewhat uncertain. [55] J.M. is currently employed as a project manager for a communications company, which is a home-based business. He earns something in the range of £30,000-£40,000 annually and lives in rented

accommodation. He exercises alternating weekend access to his sons and pays regular child support. [56] J.M. has come back to Canada twice to visit L.S. since his return to England. In September, 2013, they became engaged to be married. [57] Between July, 2012 and January, 2013 L.S. worked part time at the local daycare. She was unable to continue that employment, however, as she did not have the necessary Early Childhood Education certification. She also worked briefly at two other jobs, but is unemployed at present. Since 2010, she has taken a few courses in alternate therapies such as Reiki, an area of interest, but has not pursued related employment. She has made only limited efforts to pursue other kinds of work. [58] There are courses in alternative therapies available in British Columbia, although not in the immediate area of the Current Location. There is a centre in the Current Location that offers such services to the public, but L.S. has not applied for work there. Given her Reiki accreditation, L.S. could also offer these services from her home but she has made no attempt to do so. [59] Since July 2012 L.S. has received financial support from her parents, who regularly send funds over from England. In total, they have provided L.S. with something in the range of $60,000. In addition, since December 2013 R.S. has paid child support pursuant to a court order. [60]

Unfortunately, L.S.'s Meniere's symptoms returned in 2013 and she must again take medication. She has trouble hearing and is appropriately careful about driving. As a result of her hearing problems, L.S. uses a hearing aid. Although it was suggested that she may have a problem with overconsumption of alcohol, I am not satisfied that any such difficulties have been established. [61] For his part, R.S. has been employed since February 2013 at a scrap metal recycling business. This employment allows him considerable flexibility in connection with parenting and he is able to deliver and collect both children from school. He lives in rented accommodation in a nearby town and receives rental income from Bluenose, where he intends to return when the current renters vacate as recently directed. He enjoys good health, has the support of close family friends and is receiving counselling to help himself move on. His annual employment and rental income for 2013 totaled approximately $45,500. [62] B.C.S. and L.I.S. are doing quite well, all things considered. Both are in school and achieving reasonably good grades, although L.I.S. requires extra help and L.S. keeps them at home a lot when her mother is visiting. Both children enjoy friends, recreational activities and good health, although B.C.S. is somewhat anxious. Both have attended for counselling every other week since the fall of

2013. R.S. drives them to the counselling sessions during his parenting time. [63] The shared parenting arrangement runs reasonably smoothly, although L.S. is quite critical of R.S. and his rather blunt, unsophisticated style of communication. In my view, R.S.'s goodwill is obvious, as is his wish to engage with L.S. in a manner that benefits B.C.S. and L.I.S. Neither parent has been uniformly perfect in their communications with the other. In response, however, L.S. focuses on R.S.'s perceived missteps and does not hesitate to express dissatisfaction with much of what he says and does regardless of how well-intentioned or even helpful. Hopefully, this attitude will improve over time as the parties adjust to their new circumstances and altered expectations of one another. [64] Both parents read to the children and help them with homework, although R.S. is somewhat more consistent in this regard than L.S. Both parents engage with the children in recreational activities and are generally attentive to their needs, both practical and emotional. That being said, R.S. is somewhat more diligent than L.S. in ensuring that the children attend school regularly and on time and he does more of the routine driving that is required. [65] Shortly after signing the Separation Agreement in which she agreed to equal parenting, L.S. told R.S. that she wanted to move back to England with the

children. In response, he told her that he wanted the family to remain in the Current Location. [66] Although I am unable to identify precisely when L.S. decided she wanted to move back to England I am satisfied that it was very close in time to when she signed the Separation Agreement. This is concerning, as it suggests L.S. may be willing to make important decisions that impact the children without fully weighing or accounting for all of the implications in advance. [67] L.S. commenced this action in January 2013, just six months after signing the Separation Agreement. She initially sought orders setting aside several of its terms, including those related to property division and equal parenting. By the commencement of trial, however, she had abandoned some of her claims, including those with respect to property division. As to parenting, at trial she submitted that shared parenting should continue in England but if R.S. does not move there he should have extensive holiday time and Skype communication with the children, both of whom would live in England with her. [68] L.S. proposes to move to Kent, England with B.C.S. and L.I.S. in the summer of 2014. Her parents live in this area in a large house and she proposes that she, B.C.S., L.I.S. and J.M. would all move into her parents' home. J.M.'s sons would also stay in her parents' home every second weekend during their access

time. [69] L.S. has researched local schools and identified one she believes will provide both children with excellent educational opportunities. She plans to take further training in alternative therapies at a nearby college and, within a few years, take over her mother's alternative therapy client base. She and J.M. plan to rent and eventually buy a house in the same area of Kent, England. It is not clear, however, precisely when this might occur. [70] If R.S. does not also move to Kent, England, L.S. proposes that the children fly to British Columbia regularly to see him. In particular, she proposes that the children would spend the majority of summer holidays in Canada with R.S., as well as alternate Christmas and Spring Breaks and additional time in England should he go there to visit. In addition, the children would maintain telephone and Skype communication with their father. Until they are old enough to travel alone internationally, L.S. proposes that she, R.S. or P.F. would travel with the children back and forth to Canada. [71] R.S. proposes to stay with the children in the Current Location at Bluenose. [72] In February, 2014 a Views of the Child Report was prepared by Brenda Forster. Ms. Forster found no indication that B.C.S. and L.I.S. were coached or influenced by either parent. She expressed concern regarding B.C.S.'s anxiety and nervousness, and noted the vagueness of his responses in the interviews. She concluded that neither child grasped the repercussions surrounding the possible move to England.

LEGAL FRAMEWORK [73] An application to relocate children may be brought under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp) (the "Divorce Act") or the Family Law Act, S.B.C. 2011, c. 25 (the "FLA"). Where, as here, both statutes are invoked given the doctrine of paramountcy the preferable basis for consideration is the Divorce Act: Hejzlar v. Mitchell-Hejzlar, 2011 BCCA 230, paras. 13-21; see also, Hansen v. Mantei-Hansen, 2013 BCSC 876, paras. 89-90 and M.(M.) v. J.(C.), 2014 BCSC 6, para. 3. [74] Section 16 of the Divorce Act is the applicable provision. It provides, in relevant part: 16. (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage. (8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. (9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child. (10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should

have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [75] The court must assess the best interests of a child by taking into account the entire body of evidence, including observations of witnesses, common sense and guidance from the case authorities: Hansen, para.

94. In the context of mobility cases, the starting point for analysis is the Supreme Court of Canada's decision in Gordon v. Goertz, [1996] 2 S.C.R. 27. [76] In Gordon the custodial parent applied to relocate a child from Saskatoon to Australia over the objection of the access parent with whom the child enjoyed a close and loving relationship. The order sought was granted and, for the most part, upheld on appeal. In so doing, McLachlin J. (as she then was) noted the prevalence of separated families and increased mobility in modern society and established principles to guide judges in making these difficult decisions. [77] At paras. 49 and 50 of Gordon, McLachlin J. summarized the governing law on a variation application brought to permit a proposed relocation. Amongst other things, she confirmed there is no legal presumption in favour of the custodial parent, although that parent's views are entitled to respect. She went on emphasize that the only issue is the best interests of the child and each case will be uniquely fact driven. She concluded: 49 7. More particularly the judge should consider, inter alia: (a) the existing custody arrangement 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 reason 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. 50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. 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? [78] In Nunweiler v. Nunweiler, 2000 BCCA 300, Saunders J.A. explained the significance of the Gordon test on an initial determination of custody. As on a variation hearing, on an initial determination: i) a parent's motive for relocation is to be considered only in the context of assessing the parent's ability to meet the needs of the child; ii) while the court must consider willingness to facilitate contact, this is subordinate to overall consideration of the child's best interests; and iii) barring an improper motive, the issue of relocation is to be approached from a perspective of respect for a parent's decision to live and work where

he or she may choose: Nunweiler, para. 28. [79] Saunders J.A. also explained how the court should consider the status quo as a factor in mobility cases. At para. 30 of Nunweiler she stated: In some trial cases at both the trial and appellate level and in some literature there has been discussion of the value of maintaining the status quo, presenting the status quo as a default position such that, failing a convincing case being made for a move, the status quo is the preferred position. In my view, such an approach re-inserts into custody discussions a presumption which is contrary to the instructions in Gordon v. Goertz to assess each case individually, which is contrary to the observations of this Court in Robinson v. Filyk (1996), 84 B.C.A.C. 290 that presumptions are inappropriate in custody cases and detract from the individual justice to which every child is entitled, and which is contrary to the instruction in Gordon v. Goertz to respect the view of the parent wishing to relocate, barring an improper motive. [80] In S.S.L. v. J.W.W., 2010 BCCA 55, the Court of Appeal overturned the trial judge's order favouring the status quo on an original application for custody and guardianship. In so doing the court cautioned again the "easy error" of preferring the status quo in joint parenting cases, particularly where the proposed relocating parent offers not to move rather than

leave the children behind and the opposing parent refuses to relocate. In such circumstances, the proposed relocating parent is placed in a classic double bind position and the difficult matter of having to choose between competing parenting plans may not be addressed: see also, Hejzlar. [81] Huddart J.A. explained in S.S.L. that the court's task in joint parenting cases where one or both parents' needs require a change is to analyze the evidence in four possible scenarios. These are: i) primary residence with the relocating parent in the new location; ii) primary residence with the opposing parent in the current location; iii) shared parenting in the current location; and iv) shared parenting in the new location. In conducting its analysis the court's first task is to determine which parent is to have primary residence. When the question of primary residence is evenly balanced and the best interests of the children require both parents to be in the same locale, the court must choose between the shared parenting options offered by the parents without presuming the current care-giving and residential arrangement is to be preferred: S.S.L., paras. 22-24. [82] The foregoing approach acknowledges the court's inability to order a parent to stay or move and the unfairness of preferring the obstinate over the more flexible. It requires the court to provide a careful and transparent

analysis of the evidence and reasoning process leading to a decision of profound effect in the lives of the parties and their children. It also redirects focus from the time factor that sometimes dominates post-separation litigation to child-centred evidence as to the best parenting arrangements, both at present and in the foreseeable future. [83] Huddart J.A. made the following statements in S.S.L. regarding the importance of child-centred evidence: 32 Far more significant is the role each parent has played in the children's lives; which parent deals with the mundane but necessary arrangements of their lives -- clothing, haircuts, extracurricular activities, gifts for friends, doctors' and dentists' appointments, contact with their extended family; and which parent has the best perception of the emotional needs of the children. In sum, what it is that each parent contributes to the children, as care-giver. Only when those contributions are made clear will an understanding be reached as to what arrangements will work best for the children going forward. The analysis of the parent's role is fundamental to the determination of a primary care-giver, whether continued shared parenting is in the children's best interests, and where they should live. 33 I note that in this assessment of each parent's contributions to the care of their children, it is inevitable the court will be

required to assess the resources available to each, in personal and economic terms that permit them to make those contributions, and the potential effect on those resources in each proposed scenario. As many courts have noted, this may require an assessment of a parent's emotional and economic prospects because children's interests are necessarily intertwined with those of their parents: Burns v. Burns, 2000 NSCA 1.

DISCUSSION [84] As noted, L.S. brings her application to relocate B.C.S. and L.I.S. under both the Divorce Act and the FLA. Given the doctrine of paramountcy and the case authorities cited, I will conduct my relocation analysis under the Divorce Act. In my view, however, an analysis under either statute would lead to the same result. [85] L.S. submits it would be in the children's best interests to permit her to relocate them to Kent, England. In summary, she says the children would be closer to extended family in England, she would have improved personal and employment prospects, and the children would have better educational opportunities than in the Current Location. She characterises R.S.'s unwillingness to move to England as obstinate intransigence and suggests the best arrangement would be for him also to do so. If he continues to refuse, however, she says he could enjoy frequent holiday visits with the children and stay in touch via Skype and telephone. All things considered, she submits the appropriate order is for joint custody with primary residence with her in Kent, England and generous access to R.S. as outlined above. [86] L.S. also seeks an order for divorce, which application is uncontested. She further seeks a protection order under s. 183(3)(a)(ii) of the FLA restraining R.S. from attending at her home without specific invitation for so long as she remains

resident in Canada. [87] This is an initial custody determination in a case of existing consensual shared parenting where one parent seeks an order permitting relocation of the children. That being so, as Huddart J.A. explained in S.S.L., I must analyze the evidence in four possible scenarios: i) primary residence with the L.S. in Kent, England; ii) primary residence with R.S. in the Current Location; iii) shared parenting in the Current Location; and iv) shared parenting in Kent, England. In undertaking this analysis, I am mindful that my first task is to determine which parent is to have primary residence. [88] Before examining the four possible scenarios separately, I note the following views I have formed and taken into account: i. Both parties' positions are advanced in good faith. L.S. genuinely believes it would be in the children's best interests to move to Kent, England and live there with her and J.M., regardless of whether R.S. also moves. R.S. genuinely believes it would be in their best interests to continue living in the Current Location, regardless of whether L.S. moves to England. ii. B.C.S. and L.I.S. are healthy, happy children who are reasonably adaptable, although at present B.C.S. is rather anxious. iii. L.S.'s primary motive for moving to Kent, England is to enable her and the children to be closer to extended family and to pursue her relationship with

J.M. iv. R.S.'s primary motive for staying in the Current Location is to enable the lifestyle and community relationships that he and the children now enjoy there to continue. v. Both parties have positive, loving, supportive relationships with the children. vi. Both parties are capable parents. vii. Both parties are willing to try cooperating with one another more effectively in co-parenting, although R.S. is slightly more insightful than L.S. regarding his personal need for such improvement. viii. R.S. is slightly more consistent and structured in his approach to parenting than L.S. ix. The relatively recent separation of their parents and concurrent introduction of J.M. into their family life has been predictably difficult for B.C.S. and L.I.S. x. L.S. has not been optimally attentive to the children's emotional needs and best interests in her rapid and abrupt introduction of J.M. into their family life. xi. The relationship between L.S. and J.M. is not yet clearly stable and secure. xii. The good health of both L.S. and J.M. is presently uncertain. xiii. It will cause significant financial stress for all concerned if the children live far away from either parent and funds otherwise available for their care are required for access costs. xiv. It will cause significant disruption in the parent/child relationship if either parent lives in a different country than the children

and contact between them will be difficult to maximize. [89] Taking into account all of the evidence, I am satisfied that proximity of the two parental homes is clearly in the best interests of the children. I am also satisfied that the question of primary residence is almost evenly balanced. R.S. is, however, slightly better able to perceive and meet some of the emotional and practical needs of the children. For example, he is less likely than L.S. to prioritize his own needs and desires relative to theirs, as evidenced by L.S.'s conduct on the spring 2012 trip to England. Primary Residence with L.S. in Kent, England [90] If the children relocate to Kent, England with L.S. they will enjoy regular contact with their extended family, particularly P.F., who is a devoted grandmother. In addition, their mother, L.S., may feel happier than she does in the Current Location, with obvious benefits for B.C.S. and L.I.S. In my view, however, it is not clear that L.S. will be able to provide B.C.S. and L.I.S. with a consistent, stable and comfortable home environment in England, at least for the next year or two. On the contrary, for an as-yet undetermined period they will live with her and J.M. in their grandparents' home, which will be crowded and transient. [91] Importantly, at the same time the children will be deprived of the regular, stable presence of R.S. and L.S. will not have

the benefit of his (presently underappreciated) assistance and support. Although generous access to R.S. will mitigate the effects of his absence from their daily lives to some extent, it will be costly and difficult to implement. As a result, the parent/child relationship with R.S. will be seriously compromised. [92] Several other aspects of the proposed arrangement concern me. The first relates to the uncertain state of health of both J.M. and L.S. In particular, L.S. may be unable to drive the children to appointments and activities due to her Meniere's disease symptoms. In addition, J.M. may be unable to help out if his cancer symptoms recur or due to other life demands and R.S. will not be available to provide backup. While willing to help out, P.F. is less able to act as a backup caregiver given her relatively advanced age. [93] I am also concerned that L.S.'s relationship with J.M. is not yet clearly stable and secure, which could lead to problems for the children. For example, except for the 10-month period in 2012/13, L.S. and J.M. have not spent much time together and thus their relationship is not yet firmly established. The incident in December 2012 is troubling both because J.M. dented the door and L.S. reacted erratically by immediately entertaining the possibility of reconciliation with R.S. If other problems erupt between L.S. and J.M., as is predictable in any

relationship, it is not obvious that L.S. will respond in a mature and balanced way. If she does not, the children will likely suffer as a result and R.S. will not be there to pick up the pieces. Primary Residence with R.S. in the Current Location [94] If the children reside primarily with R.S. in the Current Location they will continue to enjoy their present stable and settled lifestyle. R.S. will also continue to enjoy his personal and work life there, which will benefit B.C.S. and L.I.S. In particular, he will continue to be able to balance work and parenting in a flexible manner and his friends B.C. and M.C. will continue to provide backup caregiver support. [95] The children are thriving in their current environment and it is predictable that this will continue in the future. If L.S. moves to England and they remain behind, they will obviously miss her a great deal. As with R.S. in the first scenario, although generous access will mitigate the effects of L.S.'s absence from their daily lives, it will be costly and difficult to implement. As a result, the parent/child relationship with L.S. will inevitably be compromised. Shared Parenting in the Current Location [96] If L.S. and R.S. both continue to reside in the Current Location the shared parenting arrangement will also continue. As a result, the children will continue to enjoy their present stable and settled lifestyle

and they will not suffer a disruption in their relationship with either parent. In this scenario, however, L.S. may well be less happy than she would be in England. This will likely have a negative impact on B.C.S. and L.I.S. [97] L.S. already has friends and contacts in the Current Location. There are also education and employment opportunities available for her in the general area, albeit not so accessible or plentiful as they are in Kent. If J.M. decides to move to the Current Location, which may be possible, and L.S. pursues available educational or employment opportunities there she may become more satisfied with her life in Canada. If this happens, the children will obviously benefit as well. Shared Parenting in Kent, England [98] If L.S. and R.S. both move to Kent, England the shared parenting arrangement, in altered form, will continue. It is far from clear, however, how this might work given that R.S. has no support system whatsoever in the Kent area and no obvious prospect of work. In this scenario, it is likely that he will be less happy than he would be in the Current Location. This will likely have a negative impact on B.C.S. and L.I.S.

CONCLUSION [99] All things considered, I conclude that it would not be in the children's best interests for them to relocate to Kent, England. Although no scenario is ideal, unless L.S. and R.S. can agree to live in proximity to one another in a mutually acceptable location, taking into account all of the evidence, it is preferable for the children that they reside primarily with R.S. in the Current Location. Accordingly, L.S.'s application to relocate B.C.S. and L.I.S. to England is dismissed. [100] For so long as L.S. and R.S. both reside in the Current Location they shall share joint custody and joint guardianship of the children and the children's residence shall continue to alternate between their homes on a weekly basis. In the event that L.S. moves to England, the children's primary residence shall be with R.S. in the Current Location with generous parenting time to L.S. Such parenting time shall include the majority of the summer holiday each year, alternate Christmases and Spring Breaks and additional time in the Current Location if L.S. travels there, as well as regular telephone and Skype access. [101] The divorce order sought is granted. No evidence was presented to justify a protection order and that aspect of the application is dismissed. "DICKSON J."