L.V.R.L. v. M.A.E.S.

2022 BCSC 2437 L.V.R.L. v. M.A.E.S.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: L.V.R.L. v. M.A.E.S., 2022 BCSC 2437 Date: 20221118 Docket: E221408 Registry: Vancouver Between: L.V.R.L. Claimant And M.A.E.S. Respondent Before: The Honourable Madam Justice Sharma Oral Reasons for Judgment In Chambers Counsel for the Claimant: I. Phillips Counsel for the Respondent: K.J. Groves Place and Date of Trial/Hearing: Vancouver, B.C. November 17 and 18, 2022 Place and Date of Judgment: Vancouver, B.C. November 18, 2022 Table of Contents I. FACTS. 3 A. The Agreement 4 B. New Relationship. 5 C. Litigation History. 5 II. STATUTORY PROVISIONS. 7 III. ISSUES. 9 A. Preliminary Issue: Suitability of Interim Proceedings. 9 B. Main Issues. 10 IV. SUMMARY OF THE EVIDENCE. 11 A. Good Faith. 11 1. Reasons for Relocation. 12 2. Enhancement of Quality of Life. 14 B. Proposed Arrangements. 16 V. ANALYSIS. 17 A. Preliminary Issue: Suitability of Interim Proceedings. 17 B. Good Faith & Proposed Arrangements. 19 C. Best Interests of the Children. 22 1. Irrelevant Factors: Family Violence and Children's Views. 23 2. Health, Emotional Well-Being and Need for Stability. 23 3. Parents' Ability to Exercise Parenting Time and History of the Children's Care. 26 4. Nature and Strength of the Children's Relationships. 29 5. Other Considerations. 29 VI. CONCLUSIONS. 32 [1] This is a written version of judgment which was delivered orally on

November 18, 2022. To protect the privacy of the children, the parties' names and certain other details have been anonymized. Other than edits for improving grammar or style, no other changes have been made to the judgment. [2] THE COURT: This judgment addresses two applications that were heard over two days. Both concern parenting arrangements for the parties' two young children, aged six and eight. The issues are the claimant's desire to relocate with the children to California, which is opposed by the respondent, and the respondent's desire to increase his parenting time to 50 percent, which the claimant opposes. I. FACTS [3] The following is an overview of the parties' relationship. a) The parties met in Vancouver in 2009 and moved to Montreal shortly thereafter. They began living together in June 2009. b) They were married October 1, 2011, in Montreal. They have two children, both born in Montreal in May 2014 and December 2016. c) They moved to the Netherlands for the respondent's (father's) employment in May 2018. d) While in the Netherlands, their eldest child was diagnosed with autism and attention deficit hyperactivity disorder. e) The parties separated on March 1, 2020, but continued to live in the same residence for financial reasons. f) The parties have a mediated separation agreement, concluded in the Netherlands, dated May 2021. This was concluded at a time when

the parties knew they would be relocating to Vancouver for the father's employment, which they did later that same month. g) The parties were divorced in June 2021. [4] Neither party has family in Vancouver. The mother is originally from [country] and the father is originally from [country]. [5] The mother lives with the children in Burnaby where they attend school. The father lives in Vancouver's West End neighbourhood. A. The Agreement [6] The parties' agreement was executed in the Netherlands and is written in Dutch, but there is a certified translation in the record. Relevant to these applications are the following clauses: a) The agreement was reached through mediation, which concluded in March 2021. b) The parties agreed the children would be registered at their mother's address and she would maintain their passports. c) The parties would move to Canada as of May 21, 2021, and they agreed on specified living arrangements for the first three months. d) The father would have visitation with the children every week on Saturdays from 9:00 a.m. to 7:00 p.m. e) Up to two Fridays a month, the mother could arrange for a babysitter on Friday nights and the cost, up to 10 hours, would be borne by the father. f) The parties will share equally two weeks of school Christmas vacation, two weeks of Easter vacation and two months of summer vacation. g) Other holidays and

occasions--including birthdays, Father's Day, and Mother's Day--shall be shared equally. h) The mother will select possibilities for the children's school and, together with the children, the parties shall decide on the school, taking into account the child's choice and the school's advice. i) With regard to school information, the parties "will each receive information, such as reports, newsletters, the school schedule from school unless that is not possible," in which case the mother will pass the information to the father. j) Both parents can attend parent meetings, but they will inform the other parent regarding their presence. k) The parents will accompany and promote the children's hobbies, sports, and other extracurricular activities, and visitation does not prevent participation in such activities. B. New Relationship [7] The mother got remarried in August 2022. She met her current spouse in the spring of 2022. He visited her often in Vancouver beginning in March of that year. The mother and her new spouse were engaged on July 25, 2022. [8] Her spouse lives and works in [city], California. He also has two sons, aged six and eight, of which he has 50‑percent shared parenting. [9] The mother and her children visited and stayed with her new spouse in California for the month of August 2022. They were married on August 22. They had a marriage celebration in early

November. [10] The mother and her spouse are expecting a child due in June 2023. C. Litigation History [11] The mother filed her notice of family claim on June 7, 2022. Relevant to these applications, she seeks sole parental responsibilities. With regard to current parenting, she pleads that the children are in her primary care and the father has parenting time as specified in their parenting agreement. [12] The father filed his response (and a counterclaim) on June 16, 2022. He opposes the mother's position that she get sole parenting responsibilities, saying there is no reason why he should be excluded from decisions about the children. [13] On August 8, 2022, a judicial case conference ("JCC") was set down for December 8 and remains scheduled for that date. [14] The father filed an application on September 13, 2022, seeking shared equal parenting time on a week‑on/week‑off schedule, together with a requisition seeking leave to bring the application before the JCC. In the alternative, he seeks an order for the preparation of a s. 211 report. He offers to pay the initial cost upfront, with liberty to seek indemnity from the mother after the report is completed. His application was accompanied by his first affidavit, made and filed the same day. The father emphasized that he knew nothing about the mother's marriage when he filed the application. [15] On September 14, 2022, the

mother provided the father with notice that she intended to relocate to California on November 15. The father confirmed through counsel the next day that he opposed the relocation. [16] At the hearing, the mother confirmed she has not yet relocated and now proposes to do so on December 15, 2022. [17] The father filed an application on September 20, 2022, seeking an order prohibiting the mother from removing the children from British Columbia and setting down a 10‑day trial in Abbotsford at the earliest time convenient. That was accompanied by his second affidavit, made the day prior and filed the same day. [18] The mother filed her response to both applications on October 13, 2022, accompanied by her affidavit made the day prior. She also relies on the affidavit of Sophie Nenno, sworn October 13, 2022, and her F8 statement, sworn August 9, 2022. She opposes all orders sought by the father. [19] The parties had a mediation for a full day on October 26, 2022, that did not result in a settlement. [20] The applications before me first came on for hearing before Justice Walker on November 1, 2022. Walker J. ordered both matters to be set for two days and the parties be present, giving time for cross-examination of the parties in the event the parties or the Court felt that would be necessary. II. STATUTORY PROVISIONS [21] With regard to relocation, the parties do not dispute that

they do not have substantially equal parenting time, therefore s. 69(4) of the Family Law Act, S.B.C. 2011, c. 25 [FLA], applies. The provision reads as follows: 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. [22] Section 69(6) of the FLA mandates factors to be considered in assessing whether the proposed relocation has been made in good faith for the purposes of s. 69(4)(a)(i): 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. [23] The factors a court must consider to determine the best interests of the children are set out in FLA, s. 37(2), (3) and (4): (2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following: (a) the child's health and emotional well-being; (b) the child's views, unless it would be inappropriate to consider them; (c) the nature and strength of the relationships between the child and significant persons in the child's life; (d) the history of the child's care; (e) the child's need for stability, given the child's age and stage of development; (f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (h) whether the actions of a person responsible for family violence indicate that the person may be impaired

in his or her ability to care for the child and meet the child's needs; (i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (j) any civil or criminal proceeding relevant to the child's safety, security or well-being. (3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child's physical, psychological and emotional safety, security and well-being. (4) In making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor. III. ISSUES A. Preliminary Issue: Suitability of Interim Proceedings [24] The father raises a preliminary issue regarding the mother's desire to relocate with the child. His position is that relocation is too important to be determined on an interim application before trial. [25] Counsel appropriately admitted the court has the power to consider the issue on an interim application, but submitted it should not do so in this case. Counsel referred to cases that support his position that the decision of relocation should be deferred until trial: a) In Nolie v.

Reece, 2016 BCSC 2201 [Nolie] at para. 27, Justice Fleming called relocation "one of the most serious decisions the court is asked to make. It can have a lifelong impact on a child and his or her relationship with a non-moving parent. When granted at the interim stage, it can be tantamount to a final order"; b) In D.R.K. v. S.G.G., 2013 BCSC 2107 [D.R.K.] at paras. 17-20, Master Scarth held that it was preferable to address the issue of relocation at trial rather than in interim proceedings due to the fact that: (1) conflicting affidavit evidence regarding the best interests of the child and allegations of ulterior motives for the proposed relocation were best assessed on viva voce evidence; and (2) the application was not so urgent so as to require determination on an interim basis. c) In K.D.T. v. J.W.C., 2012 BCPC 44 at paras. 24 and 26, Judge Skilnick noted how relocation is typically considered at trial, particularly where it is established that there are issues requiring further evidence that are relevant to whether the relocation is in the best interests of the child. [26] The father alleges that the mother has been planning the relocation since at least the summer without informing him, calling into question her motives. He submits such conduct requires the Court to apply extra scrutiny to the evidence because it could be "a thinly disguised attempt to thwart contact": Stav v. Stav, 2012 BCCA 154 at para.

89. The father also emphasizes the mother's relationship with her spouse is less than a year old, which he says justifies greater scrutiny. [27] The mother submits the father's position fails to pay sufficient heed to the legislative provisions. Because she has always had the majority of parenting time and she gave timely notice of her intent to relocate, her position is that so long as she can demonstrate good faith and reasonable and workable arrangements to preserve the children's relationships, the Court must assume relocation is in the best interests of the children pursuant to FLA, s. 69(4)(b). Accordingly, the onus falls on the father to demonstrate why relocation is not in the children's best interests. She contends the evidence establishes her good faith in wanting to relocate and that her proposed arrangements are reasonable and workable to maintain the father's relationship with the children. [28] She also submits the court need not wait until trial to decide the issue because the father's evidence is insufficient to displace the presumption. She further submits that her own evidence about relocation would meet the best interests of the child test, even if the statutory presumption did not apply. [29] I will analyze those positions and draw conclusions after summarizing the evidence on the issues. B. Main Issues [30] The following issues arise from both

applications: a) Has the mother established good faith regarding her intent to relocate, as demonstrated by her reasons for relocating and whether the relocation would enhance the quality of the life of the child and the mother? b) Has the mother proposed reasonable and workable arrangements to preserve the relationship with the father should the relocation proceed? c) If the answer to questions (a) and (b) is yes, such that the Court must presume relocation is in the children's best interests, has the father demonstrated relocation is not in the children's best interests? d) With regard to the father's application for 50/50 parenting time, taking into account the best interests of the children, has there been a change in circumstances? IV. SUMMARY OF THE EVIDENCE A. Good Faith [31] Many cases talk about good faith, and often it really amounts to an absence of bad faith. As noted by Justice Betton in L.J.R. v. S.W.R., 2013 BCSC 1344: [71] Good faith is a subjectively held state of mind. Yet, some of the characteristics [listed under FLA, s. 69(6)] are undoubtedly objective. I find that to the extent a factor listed in s. 69(6) is objective, a positive or negative finding suggests an inference that the relocating guardian either possessed or did not possess the required subjective good faith. [72] The language of s. 69(6) makes it clear that the above four considerations are not an exhaustive list, but those considerations do establish a tone for the concept of good faith in Division 6 relocation proceedings. They are, in my view, consistent with a common understanding of the phrase. [32] The consideration of good faith under s. 69(4)(a)(i) is separate from the best interests of the child analysis: D.T.S. v. S.P.M., 2022 BCSC 547 at para.

62. Even where good faith is not made out, the relocation will still be granted if it is in the best interests of the child, i.e. good faith only establishes the presumption that the relocations should go ahead under FLA, s. 69(4) rather than being a prerequisite for the relocation itself: see C.M.B. v. B.D.G., 2014 BCSC 780 at paras. 73-77. [33] As noted previously, there are four statutory factors that must be considered in assessing good faith, but counsel agreed that because the mother gave timely notice and there is no order or agreement prohibiting the relocation, only two are contested in this case: (1) the reasons for the proposed relocation and (2) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian. [34] The father says the fact that the mother did not inform him of her new relationship and marriage, and the fact that that relationship happened so fast, either supports his position that she had an improper motive or, at the very least, raises a triable issue that should not be decided in an application.

1. Reasons for Relocation [35] With regard to the reasons for relocation, the burden is on the relocating parent to satisfy a court that the request is made in good faith. [36] The mother wants to relocate to live with her spouse. She does not want to have to live apart from him. She is pregnant and does not want to have to be a single mother, living in a rental accommodation, raising three children by herself. Also, she is now a parent in a blended family and wants that family to live together. She asserts not only is this for her benefit, but also for the benefit of her two children with the father, given that they will be welcoming a new sibling soon. [37] I did not understand the father to question the sincerity or legitimacy of the marriage, and there is no reason to do so. However, he does point out that the mother did not inform him about it in a timely way. He says the Court should be concerned by how fast the relationship developed and moved to marriage. [38] He submits there is evidence upon which the Court can conclude that the mother's desire to relocate is for an improper purpose. In his affidavit, he submits that it was meant to ensure he would fail in obtaining any increase in his parenting time, and if true, that would obviously constitute bad faith. [39] It is not disputed that the mother did not inform the father about her new relationship until she gave

notice of intention to relocate on September 14, 2022. I agree that fact is a fair basis upon which the father can question the motives for relocation. [40] Motives and intentions are not tangible facts, but conclusions drawn from observable facts and the statements and actions of the parties. I will review the evidence that the father raises in support of his position. a) He points to the proximity of the timing of the notice of relocation with his application for 50/50 parenting time. His position was a bit confusing. He deposed in that he says that the notice came on September 14, 2022, and he served the mother with his notice of application on September 15. That would suggest that she did not know about his application for shared parenting, defeating one aspect of his argument about bad faith. However, his application was actually filed in court on September 13, suggesting the notice of relocation was unrelated to his application. I do not find the oddities in the timing to be determinative. It does not turn on whether the notice came before or after service because, as the father points out, he seeks the 50/50 parenting time in his response to notice of family claim. He also points to the fact that this past summer, he actually exercised parenting time 50 percent of the time. b) The father also asserts that it appears the mother has been planning relocation to California

at least since the summer without his knowledge, and he points to a number of facts: i. She spent a month in August at her spouse's home with the children. ii. In her affidavit, she talks about her and her spouse working together with a parenting coach and jointly meeting with their eldest son's therapist to prepare the four boys for a blended family. iii. She refers to taking the coach's input before the office visit and having FaceTime calls in advance along with a daily schedule to coordinate the family members' schedules and manage their expectations. iv. Her affidavit says that she already has the name of a dentist and a pediatrician for the children. v. She deposed that she will have coaches and occupational therapists through a specific agency that she knows is similar to the agency that currently provides supports to the eldest child. vi. She knows which school the children would attend and provides details about it. She also indicates which activities will be available to the parties' children. [41] The mother says that the father's evidence does not support his position and demonstrates, in fact, that the application for 50/50 parenting time is motivated by a desire to reduce child support. Among other things, she points to the history of parenting time exercised by the father. I do find that history is highly relevant. It is addressed below at paras. 97-112 and 116-127, and I adopt that reasoning here.

2. Enhancement of Quality of Life [42] The second factor that has to be considered is enhancing the quality of life. The mother emphasized that the statutory language and case law make it clear that the court can consider both whether the proposed relocation likely enhances the general quality of life, including emotional well-being, for the child and, if applicable, the relocating guardian. The link between increased emotional well-being (of both child and parent) and improved quality of life is also recognized in the case law: see e.g. Barendregt v. Grebliunas, 2022 SCC 22, at paras. 169-173. [43] The mother currently lives in an apartment in Burnaby. She does not work as she must attend to the special needs of the eldest child. Because she has the children the entire week (except for ten hours on Saturday), the burden of his therapy falls on her alone. She deposes how she sometimes has to attend his school in order to assist him. [44] She is also now pregnant, so it is reasonable that she would not begin looking for work at this time, even if that was something that was suggested. [45] Her evidence about how the quality of life will be enhanced is set out in her affidavit. It includes the following important information: a) She and her new husband worked together with a parenting coach and jointly met with a therapist to prepare the boys for the blending of the families

because of the eldest child's special needs. b) She deposed that the eldest child is less isolated within the blended family and that he did feel safe. He was also able to participate in many activities even though his condition tends to make him prefer being isolated. c) She points to the advantage of the blended family for the younger child, who would benefit from having other siblings around. Without them, he does not necessarily get the family connection and participation he needs because of the heavy burden of the eldest child's needs. d) She deposed that, in her view, she was better able to handle the eating issues that the younger child had in July. e) She points out that the younger child learned to swim in August, when he was previously scared of water. She deposed that her husband spent time teaching the younger child how to catch and make a basketball shot; her evidence has other very specific evidence about what they did together. f) She deposed that her brother lives close by, so the children will have a better opportunity to see their cousins. g) [Information about locations redacted]. h) She pointed out that her husband has a well‑paying job and, more importantly, the ability to be at home a lot. This will ease her burden because he can help with the eldest child's special needs and generally with the children. This obviously speaks to her emotional

well‑being. i) Ms. Nenno deposed that the mother's spouse is learning quickly and is keen to learn how to follow routines that are needed by the eldest child. j) The mother described the school that the children would be able to attend, attaching documents that indicate it is an excellent school. [46] The father asks this Court to view all of the above from the perspective that she planned all of this, he says, without his input or consultation. [47] While I appreciate he has valid concerns about that, there is little evidence that would demonstrate the things mentioned above and set out in her affidavit would not enhance the quality of the children's lives or her life. That is not a criticism of the father. It is simply a reflection of the situation that the mother has with her new family. B. Proposed Arrangements [48] I will now turn to summarize the evidence about the arrangements proposed for the relocation. [49] Should the relocation be permitted, the mother proposes the following parenting schedule: the father would have the following parenting time: a) December 26, 2022, until January 2, 2023, and every second half of winter break in subsequent years; b) April 9 to 15, 2023, and one full week during spring break during subsequent years; c) July 2 to 22, 2023, and three weeks every subsequent year; and, d) October 4 to 8, 2023, and every subsequent Canadian

Thanksgiving. [50] The parenting time would take place in Canada, and the mother would be responsible for flying the children to Vancouver. If the father were to move to California and live close to the children, the mother would agree to maintain the current parenting time schedule, which allows the children to be in the care of the father for 40 hours per month. [51] The father says the Court should not be satisfied with that evidence. [52] He says the proposal does not account for his loss of regular weekly contact with the children and only offers holidays, parenting time to which he is already entitled. He submits that, on its face, the proposal cannot be considered reasonable. [53] The father also says the proposed arrangements are not workable. He points out that it is important to remember this is not a relocation just within the Lower Mainland or within B.C., or even within Canada, but across an international border. [54] The father deposed that he does not have a visa in the United States at present and likely would have to finish his master's degree before he would qualify for one. That means his living in the United States is both an unsure possibility and the timing of any move is unknown. He also points out with respect to his current job that the headquarters are actually near [location] and therefore very far (about six hours' drive each way) from the place where the mother proposes to live. V. ANALYSIS A. Preliminary Issue: Suitability of Interim Proceedings [55] There is no question that this court must be mindful, as noted previously, that relocation is "one of the most serious decisions" to be made because it "can have a lifelong impact on a child and his or her relationship with a non-moving parent": Nolie at para.

27. It is also true that when granted at the interim stage, it can be tantamount to a final order. [56] The mother submits that the cases that the father relies on are distinguishable for a number of reasons: a) In Nolie, Fleming J. was not prepared to make a determination on an interim basis on the record before her because she identified gaps in the evidence. She also noted the logistical difficulties and the cost involved to maintain the non‑moving parent's parenting time. b) In D.R.K., Master Scarth was not persuaded there was urgency that required the matter to be decided before the trial. [57] The facts of this case are different. The mother has remarried and she is pregnant. She is due to give birth in June. I accept that creates urgency to have the issue determined sooner rather than later. [58] Justice Walker secured two days to hear the matter and directed the parties to be here in person to allow for the possibility of cross-examination on the affidavits. This significantly mitigates the type of concerns expressed by Fleming J. in Nolie about the state of the evidentiary record. The parties themselves had the opportunity to test the opposing side's evidence, as one would at trial, albeit in an abbreviated fashion. [59] In a ruling issued at the close of submissions, I acceded to the father's request that he address the Court. I did stipulate that he would need to be

sworn in as a witness and that the mother would be granted the same opportunity. I provided some guidance to counsel and confirmed that could cross-examine the parties if they chose. [60] Both parties took the stand. They provided important contextual information for their evidence, and I want to thank them for doing that. I also thank counsel for being of assistance to the Court in that procedure. There was no cross-examination. [61] Another issue the father raises related to whether this should be decided on an interim basis is credibility. He submits there is conflict in the evidence and says that credibility is an issue, as explained in this excerpt from his written submissions: [T]his is not a case where, it is submitted, this Honourable Court can decide on relocation based on the record before it in these applications. Credibility of the Mother's reasons for her move, the clandestine nature of her plans, her apparent limiting of the Father's role in the Children[s'] lives and her unwillingness to provide more parenting time to account for the parenting time the father would lose if the relocation occurred should be tested. [62] That is why he says that credibility is important, a fact which favours determination at trial. [63] I do not agree. In my view, the conflict in the evidence is not about objective facts, but the interpretation and conclusions to be drawn from

those facts. [64] Accordingly, I am satisfied that the evidentiary record provides the Court with a sufficient basis to fairly and fully determine both applications. While not determinative, I do find the mother's being pregnant and naturally wanting to have the company and support of her husband during and after her pregnancy is highly relevant. [65] I am mindful also of the Supreme Court of Canada's admonitions in recent cases, such as Hryniak v. Mauldin, 2014 SCC 7 at paras. 1-3, to improve the efficiency of the civil justice system through summary processes. Also relevant is the and the object of the rules "to secure the just, speedy and inexpensive determination of every proceeding on its merits": Supreme Court Civil Rules, R. 1-3(1). The court must demonstrate flexibility to accommodate the urgency that exists in this case, regardless of the parties' subjective feelings. [66] Accordingly, I do not agree with the father that this issue should be deferred to trial. B. Good Faith & Proposed Arrangements [67] It is entirely reasonable for the mother to want to be with her husband during her pregnancy and the birth of her child. I did not understand the father to question the veracity or sincerity of that marriage, but he does question her motives and intent for the request to relocate. He says the Court should be concerned by how fast the relationship developed and moved to

marriage. [68] The mother acknowledges that the relationship happened very fast. It is not clear to me that I can make any assumption based on that timing alone. In other words, a short relationship does not necessarily mean it is not genuine, and I acknowledge that the father did not actually make that claim. With respect to good faith, he relies more on the fact that he was not informed about what he says was the planning that happened. [69] Not being informed of the relationship at the time it started and developed is a relevant issue. The father submits that he ought to have been informed. In my view, it was the obligation of the mother to do so and this should have occurred before introducing the children. Certainly, she ought to have informed the father before going to California in August, because at that point she was engaged. [70] The mother's affidavit does not really offer any explanation for not informing the father sooner about her spouse. However, when she took the stand, she provided some explanation. She said the relationship happened very fast and she was nervous about whether things would actually work out. While understandable, those reasons do not justify failing to inform the father sooner. She fairly admitted on the stand that she should have done so. [71] The father points out it is not just the lack of notice of the relationship, but the preparation that

he says went into the relocation. Combined, he says, these are two reasons why the good faith of relocation should be decided only at trial. Or, in the alternative, they amount to evidence of bad faith or, at the very least, they cannot substantiate good faith. [72] I do not agree. [73] With respect to the preparations in August, those were necessary because of the oldest child's condition. The comment from Ms. Nenno that the mother is a strong advocate is borne out by the evidence. Prior to taking the kids to California, she and her then fiancé enlisted and listened to professionals about how to integrate the children. That advice was very important for two reasons. For one, they would be having, for the first time, four young boys suddenly residing in the same place (even if, at the time, it was thought to be for only a month). More importantly, it was important in order to be mindful of routines and structure which are very important to the eldest child's needs. [74] I find this evidence to be a demonstration of the mother's commitment to prioritize the needs of her children. Given the importance of structure and routine for the eldest child, she was thinking and planning ahead֫--not only for herself, but also to involve her then fiancé to try and make the transition for a month of living together smoother. [75] In my view, it would have counted significantly against her if

she had not done so. I make that comment regardless of whether she was going to stay with a romantic partner or even with just a friend; that type of preparation was necessary given the needs of the child. I do not agree in these circumstances that type of preparation can be relied upon to demonstrate bad faith. [76] I also do not find the preparations she undertook demonstrated a lack of good faith. Instead, they show how the relocation would enhance her and her children's lives. She has an obligation to address how the children's needs would be met if they were relocated to substantiate her belief that the children's lives will be enhanced. In many cases, parties provide only vague statements about how the proposed relocation will enhance the quality of the children's life. That is not what her evidence does: it is detailed, it is specific, and I find it supports her position more than the father's. [77] The father's real and valid complaint is that all of this was done without his knowledge or input. [78] The mother acknowledges that, but she asks the Court to consider her actions in the context of the history of the parenting time and care of the children. Given that evidence (which is addressed later in these reasons, but which I adopt here), I am satisfied that she has made the relocation in good faith. A highly significant factor is the objective facts of the history of

the children's care, which I discuss below (see paras. 97-111). [79] She must bear some blame for not informing the father about her engagement, but that failure is, in my respectful opinion, overwhelmed by the evidence of her good faith. [80] I also find that the arrangements that she has proposed are reasonable and workable in light of the evidence that I am now going to discuss, especially the parenting history (see paras. 97-111) and the needs of the children (see paras. 88-91). [81] Accordingly, I find that the mother has presumptively established that relocation is in the best interests of the children pursuant to the s. 69(4)(a) test. C. Best Interests of the Children [82] It is important to point out that the burden is on the father to demonstrate that the relocation is not in the children's best interests because I have found that the s. 96(4) presumption applies. Therefore, he has to bring evidence to persuade the court it is not. [83] In approaching this issue, I am mindful of the inherent logic behind the legislative provisions. Section 69(4) provides a legal mechanism to confer on a relocating parent a presumption that relocation is in the child's best interests, so long as that parent can persuade the court that he or she is acting in good faith and has made arrangements to preserve the relationship between the other parent. [84] This section only applies to those

situations where the parents have already agreed, or by court order it has been decided, that allocated parenting time is not equally shared. This is a legislative decision to give primacy to the parents' choices (or court orders) about parenting time. I note that in this case, the parenting time is overwhelmingly in the mother's favour. This is not a situation where the other parent enjoys 30 or 40 percent of the parenting time. The mother overwhelmingly has the parenting time, and this has been so for a long time.

1. Irrelevant Factors: Family Violence and Children's Views [85] With those comments in mind, I will turn to the provisions governing the factors to be assessed in weighing the best interests of the child under FLA, s.

37. I will note that I do not need to address those provisions about family violence (s. 37(2)(g) and (h)), because that issue does not arise in this case. [86] Further, while the court has to take into account the children's views that is not entirely necessary because I find it would not be appropriate to do so (s. 37(2)(b)), given the special needs of the oldest child and the young age of the younger one. I say that because there is an emotional cost to implicating children in that process, however it occurs. In my respectful view, such a step is not necessary at this point in time.

2. Health, Emotional Well-Being and Need for Stability [87] I turn to two of the s. 37(2) factors, which I will consider together: the children's health and emotional well‑being (s. 37(2)(a)), and the children's need for stability, given their age and stage of development (s. 37(2)(e)). The latter factor is critical--possibly the most important--because their eldest child has autism. [88] The mother gave very detailed evidence about her eldest child's condition. She stated that he was expelled on the first day of school. He then attended an autism assessment clinic for six months where, three times per week, he was under observation and assessment. He was diagnosed with non‑verbal autism in the spring of 2019, and he attended a special school after that. Six months later, he was also diagnosed with attention deficit hyperactivity disorder. He gets intensive therapy and, with that, apparently is now speaking Spanish fully and learning to speak English. [89] She estimated that he has attended about 350 therapy sessions since the parties signed the agreement. The current arrangement for therapy involves: occupational therapy twice a week at a clinic; speech therapy every other Friday; sessions with a behavioural interventionist coach who attends the house every two weeks and attends the school when needed; and sessions with a behavioural coach who comes to the house every Friday.

She gave the following details of the therapy in her affidavit: Working with [the behavioural interventionist coach] and [the behavioural coach], we developed various routines for [the eldest child] at home and at school, such as house rules, routines to process his expectations in advance[,] used in conjunction with the motivation / reward schedule to engage him in areas that are challenging for him. He has a daily routine and various visuals that are also used to front load him (i.e. set up expectations for the day). [He] requires transition warnings between routine events, verbal, gestural and physical cues prompting him as well as frequent redirection. [He] is also taught logical and natural consequences through a behavio[u]r map and visuals as they aid him to understand more abstract concepts. [He] also requires sensory processing and sensory / self regulation support materials and guidance which I provide through materials and equipment suggested by his behavioural and occupational therapist team. [90] All of this is time‑consuming and challenging, as she noted in her affidavit: [His] diagnoses and the resulting behaviour require a considerable time commitment on my part. In addition to taking him to regular therapy sessions, I also attend school meetings. [He] was enrolled in after‑school care, however, he was not able to attend due to behavioural issues. He exhibits

behaviour difficulties at school, and the school had to put a "safety plan" in place to manage crisis situations. There have been occasions where I had to attend at school to assist with his behaviour. For example, he can refuse to return into the school building after recess and the teachers are not able to manage his behaviour, and I get a call and have to attend and deal with the situation. [91] The father mentioned several times in his affidavit that the mother is not working, and, in his pleadings, he suggested that she could earn money. However, what is missing from his evidence is any acknowledgment or comment on the eldest child's special needs. [92] The mother pointed to the following which she deposed demonstrates concerns about the father's ability to provide what the eldest child needs: a) She stated that the father has not participated in many therapy sessions, perhaps as few as ten and all of which were this past July when he had the children for the entire month, at her insistence. The father does not agree on the quantity, but I did not understand him to dispute that he has not been very involved in the child's therapy. He lay blame for that state of affairs on the mother for not actively involving him. b) The mother deposed that upon return from the father's care, the younger child had lost weight. She pointed out that he is a picky eater. She deposed that he

has eating issues and works with teachers and coaches to address those. That obviously affects his school performance and his energy. The father does not appear to dispute the weight loss, but makes a comment that it might have been due to physical exercise. With respect, I am concerned the father appears not to fully appreciate the seriousness of this issue. This is what he said in his affidavit in response to the mother's allegations: Fernando is a picky eater but he was fed regularly at my home in July. I verily believe his weight loss may have stemmed from the physical exercise we did when the Children were with me. [93] There is also an incident about an inhaler detailed in the mother's affidavit: The Father has not bought the inhaler containing asthma medicine for [the younger child]. The Father is aware that [the child] has an asthma prescription available at the pharmacy whenever needed. Instead, he insists that we share one inhaler. When the Father's parents were visiting in early September 2022, [the child] was having difficulty breathing, and I brought the inhaler to the Father's residence in Vancouver. [94] This is the father's response in his affidavit: As to [the younger child]'s inhaler, it seemed easiest for the Mother to put the inhaler in [the child]'s backpack given my parenting time is, at present, significantly less than what the Mother has. It did not seem to make sense to me to have an inhaler at my home that may never be used.

3. Parents' Ability to Exercise Parenting Time and History of the Children's Care [95] Turning to the ability of the father to exercise his or her responsibilities (s. 37(2)(f)) and the history of the child's care (s. 37(2)(h)), the mother questions the sincerity of the father's desire for 50/50 parenting time. Her position and her evidence is that his limited parenting time historically has been by choice. She pointed to how he has not taken the children to school or picked them up. While it is not practical for him to do so since the couple moved to the Lower Mainland because he lives in the West End--far from the children's schools--there is no explanation for why in the Netherlands, he apparently did not take the children to school as often as the mother. That said, I can infer that the mother had stopped working, so perhaps this arrangement made sense for the family. [96] However, what is concerning to the Court is that the father seems to lay blame for the lack of pickups on his work schedule, but does not explain why that remained the case after April 2022 when the father was no longer working a second job. The more important point is that the father lives in the West End, and he does not drive: commuting would be onerous. He deposed that he lives in the West End because that is where his office is. His apartment has one bedroom, so there is no separate bedroom for the

children. He deposed that he manages this arrangement. He also stated that the rent is cheaper, and because he has the children for so little time, this arrangement has made sense. [97] The mother deposed that the father has not exercised the parenting time to which he is entitled to in the agreement, which entitles him to parenting time during one week of the children's Christmas vacation, one week of their Easter vacation, and one month of their summer vacation. Despite this, she deposed that he never requested any holidays until after she filed her notice of family claim in the summer of 2022. Specifically, she points out that in 2021, he did not seek parenting time on Labour Day, Truth and Reconciliation Day, Thanksgiving, or Remembrance Day. This year he did not have parenting time on New Year's Eve or Day, Family Day, Good Friday, Easter Monday, Victoria Day, Labour Day, the day of mourning for Queen Elizabeth, Truth and Reconciliation Day, or Thanksgiving. [98] For spring break, he was offered parenting time, but he did not take it up. She also offered a weekend, and that was not taken up either. [99] In part, he responded to these allegations by noting that he is committed to U.S. statutory holidays. However, he does not explain why he did not seek parenting time on those holidays instead. There is no evidence that he suggested that these U.S. holidays be considered as

part of the parties' parenting time routine or that his parenting time be structured around the U.S. calendar. There is not even any evidence as to what the U.S. holidays are. [100] Earlier in 2022, the mother was going to take the children to [location] and California for the entire summer. The father signed an authorization to do so in April. In other words, he chose, at that time, not to exercise his parenting time during the summer to which he is entitled. After he was served, he then revoked that travel consent and asked to have the children for a month. The mother did not object. [101] I agree with the mother's counsel that this evidence gives real force to her position that the father's assertion that the mother actively limits his parenting time is dubious at best. There are other examples of a similar nature on the record that I do not mention here. [102] With respect, I find there is evidence that the father has difficulty prioritizing the needs of his children and, to a large extent, he still depends on the mother for things that he ought to be responsible for. [103] He chose to live in the West End, even though it appears that he works from home. I appreciate that he gave me an explanation for this state of affairs. He deposed that he had originally proposed that they live in the Olympic Village and enroll the children in school there, but that did not work

out. [104] However, once the mother was living in Burnaby and the children were going to school there, he made no efforts to change his residence. That is not a criticism; it is an objective fact that speaks to what the children's history of parenting has been. It speaks to whether or not he was choosing to prioritize the ability to exercise parenting easily, and the ability to take the children to and from school. Again, it is not determinative, but it is a factor. [105] I am also concerned by another statement in his affidavit: In response to [a statement made in the mother's affidavit alleging the father had declined to exercise his parenting time], Aug. 2, 2022 was the day I had scheduled to complete my Dutch taxes. I told the Mother I wanted to see the Children, but I asked her to bring them to my residence for 12:30 p.m. The Mother refused. I then said I could not see the Children. [106] Again, I do not mean to be critical of the father, but it is not necessarily the mother's obligation to accommodate his schedule. I appreciate the need to file a tax return, but when he only has the children one day a week, one would have thought he would have arranged his schedule in a different way rather than expecting the mother to bring the children to him. [107] With respect to the history of parenting time in his affidavit, he makes reasonable comments that he was working and the

mother was not. However, again, he does not acknowledge or comment on the eldest child's diagnoses. He simply disputes the time at which the child started speaking. Given the eldest child's condition and the intensive therapy he requires, with the greatest of respect, that is a remarkable gap in the father's evidence and omission from his position. [108] I return to the allegations regarding the younger child's weight loss and the inhaler (see paras. 92(b)-94). That evidence, especially about the inhaler, is concerning. I cannot imagine at the parties' income level that the father's refusal to have a backup inhaler at his residence is an issue of cost. It is concerning that with regard to something as vital as an inhaler, the father does not take responsibility, but appears to believe that the mother is completely responsible for it. What is important about that is that this is his evidence, not hers. [109] The father also gave evidence, both in his written materials and testimony, that he thought the parenting-time arrangement and the agreement executed in the Netherlands would be temporary, both being premised on the idea that the mother would eventually find work again and, I assume, become more self‑sufficient. The mother disagrees with this evidence, but a father's assertion of that belief in general might be reasonable. [110] However, what is important about the father's

assertions on this point is that when the agreement was concluded, the parties already knew about the eldest child's special needs, as he was diagnosed in the Netherlands. This reveals how the father expected the mother to address the eldest child's needs while looking after both children for all but ten hours per week in addition to finding work. The child's needs are intense and time-consuming, but meeting them is very important. Again it concerns me that there is no recognition of that in the father's evidence.

4. Nature and Strength of the Children's Relationships [111] Another factor that must be considered is the nature and strength of the relationship between the child and significant people in the child's life (s. 37(2)(c)). It is important for the children to have a relationship with their stepsiblings and their stepdad, and of course with their soon‑to‑be‑born sibling. Obviously, relocation would enhance that. [112] The mother's brother lives closer to the family if she relocates, and her parents would also be closer. [113] In contrast, there was no evidence from the father about any of his family connections. These factors are important; they are not determinative.

5. Other Considerations [114] I turn now to a general discussion of the evidence under the best interests of the child test. Again, the obligation to prove that relocation was not in the children's best interests was on the father. I find that his evidence could not meet that test. [115] His position has been that the mother refused him parenting time a number of times. He pointed to one instance where he sought additional time and she did not allow it. Having reviewed the entirety of the record, I find that statement to be inaccurate, and I do not accept that the mother has, in any frequent or significant manner, refused his parenting time. In fact, I find that there have been many occasions when the father has failed to exercise the parenting time to which he is entitled. [116] The father deposed that he works from 8:00 a.m. to 5:00 p.m., but that his employer also permits a flexible work schedule such that he can stop work for several hours in a day and then make the time up later. He relied on this evidence to suggest that he could be available to pick up the children from school as part of his bid to have 50/50 parenting time. However, elsewhere in the evidence, he also complained that a birthday party was set for 3:00 p.m., and he could not attend because he was working. This complaint does not jive with his assertions that he has a flexible work schedule. Presumably, he

could have attended and then made up the missed work later in the day. [117] I want to be very clear that there is nothing wrong with someone attesting to the fact that they could not attend something because of work, because it is possible there was a very important meeting or commitment at that particular time. However, that is not his evidence. The concern for the Court is not just that he missed the birthday party, but rather his interpretation of that event, as he chose to use his missing the birthday because of his work schedule as a reason to suggest the mother was limiting his parenting time. This sort of reasoning is the common theme in his evidence. [118] Elsewhere, he deposed that he can be "physically present to parent the Children during the time I propose". It is a very vague statement to support a dramatic change in parenting time, given his oldest child has special needs. Merely being physically present is not sufficient given the age and condition of the children. [119] He also deposed that he does not think a week‑on/week‑off parenting time schedule would be detrimental to the children because of the reduced transitions, and he pointed out that he had the children the entire month of July. That evidence might have had more weight if he gave any indication that he tried to speak to the children's current counsellors about how that arrangement would work. I

appreciate these proceedings have come on quickly, and he might not have been able to get a full answer. However, there is no indication that he tried. [120] More importantly, he filed his response in June seeking 50 percent parenting time. He had the children in July. There is still no evidence as to what efforts he made to ensure that the week‑on/week‑off schedule would actually work, given the eldest child's special needs. [121] In his affidavit, he stated that if the Court were to order him to have 50/50 parenting time, he would make appropriate arrangements for the children. However, the test under s. 37(2) concerns which parent is better able to meet the children's needs. He has had limited parenting time and so that naturally impacts his parenting abilities. Where a parent asks for such a dramatic change to the parenting arrangement, the Court would need some reassurance of the ability of the parent to meet the needs that currently exist. The eldest child's needs in particular are very significant, and there is no affidavit evidence from the father as to how he would meet them. This is significant because 50/50 parenting time is a dramatic change in the parenting schedule, especially for an autistic child. [122] The father relied heavily on the significance of him having had the children in July. With the greatest of respect, the importance of that evidence is

significantly diminished because that is the first time he had them over the summer, and there are concerns raised in the mother's affidavit about the quality of the care, which I need not repeat here. Some of that evidence is answered by the father. Some of it, notably, is not. [123] I also note the evidence in Ms. Nenno's affidavit, specifically that the occupational therapist and the behavioural coach for the eldest child could not reach the father for two weeks. He offered an explanation, but he does not dispute the truth of Ms. Nenno's evidence, and that is concerning. The father does raise the concern that he felt he is not kept up to date about other aspects of the children's lives. Yet again, the difficulty with that statement is the assumption that it is entirely up to the mother to keep him up to date. [124] Viewing the evidence overall, I do find that he is passive with regard to interacting and getting information about the children and, to a large degree, he expects the parental obligation to be fulfilled by the mother. Appositely, he deposed as follows: I did not feel I need to speak to the Mother about the holidays, as the Mediation Agreement already specified when we were to have them. I also made it clear to the Mother my desire for an equal parenting time schedule in my counterclaim. [125] This is not determinative but is an illustration of the father being

passive and apparently relying on the mother to organize his parenting time. A certain amount of this reliance may be fair because of the unequal division of parenting time, but at the same time, it does not give the Court confidence, with the greatest of respect, that he is actually up to the task of parenting these children 50 percent of the time. [126] He mentioned not being able to take time off during Canadian holidays because his work is governed by the U.S. holidays, but he fails to include in his affidavit the dates of the U.S. holidays. More importantly, he says he has five weeks' holidays. There is no indication of how he made sure that he used that vacation time to increase his parenting time. He includes only vague information about his master's program. That is relevant information to his working situation and capacity for parenting. It is information that could easily have been included, and it is not. VI. CONCLUSIONS [127] I do not find that the father has demonstrated that relocation is not in the children's best interests. I also do not find that he has demonstrated that 50/50 parenting is in their best interests. I dismiss both applications with a caveat about what the parenting time will look like after the move. [128] I want to emphasize I took a holistic view of this evidence. I focused on the objective facts, especially about the parenting time and history

of care. I also focused on the father's evidence, and I want to say I did not intend to be critical of the father. I appreciate that he has worked very hard at his career. I appreciate this has meant that he has not had as much time for the children as he would have liked. I also appreciate that possibly affects his parenting history and ability to some degree. That said, the Court is bound by what is in the children's best interests. It is not bound by the intentions or wishes of the children's parents. [129] The father did not propose a gradual increase to parenting time. His application and his proposal was to go directly from 10 hours a week to 50 percent of the time. I do not question his love for his children and his desire to be with them. However, given all of the evidence I have referred to, this increase in parenting time and responsibility is clearly not something that he is capable of providing at this time, and he has not satisfied the Court that he has even made the sufficient inquiries as to how he would accomplish it. [130] Lastly, the mother made the allegation that the father's desire for increasing parenting time was driven by wanting to reduce child support. I do not make that finding, but I will say there is evidence on the record that provides a reasonable basis for her to have made that submission. [131] I understood there to be some recognition by both

parties that if the Court did approve the relocation, there would necessarily be a need to also determine how the father will exercise his parenting time, given the existing order could not operate. I find it is best to address that at the JCC. [132] However, I also understood that the mother would be willing to consider a different schedule than she seeks in terms of his parenting once she has relocated. I am not suggesting that must occur, but I believe the mother is willing to consider that. It is far preferable to have the parties come to an agreement about that than for me to impose the new parenting schedule. The relocation is a major change and both have to come to terms with that, especially the father. I am of the view this issue is better addressed after some time has passed, and the father could attend with his counsel better equipped to address the issue in a cooperative manner. [133] To the extent the mother was asking me to make an order about the father's parenting arrangements, I do not think that is appropriate. I think the parties should try to resolve that together, and perhaps if necessary, it can be addressed at the JCC. [134] I want to thank both counsels. Both of them advocated very strongly for their clients. I especially appreciate that Mr. Grover was reasonable by fairly conceding things. I make that comment because that is too rare in family

litigation. [135] Because the parties testified, I do want to address them, especially the father. I am sure this is very disappointing to you, sir, but I hope that you can move past it and move forward. I do believe what the mother said. She wants you in the children's lives. I believe her. I wish you both all the best. [136] The parties bear their own costs. [137] Accordingly, on the father's application dated September 13, the order sought in paragraph one is dismissed, as is paragraph two. [138] The father also sought a s. 211 report. I did not address that in my reasons. I adjourn that matter generally because I would not foreclose either party wanting to get a s. 211 report in the future. I do not want to dismiss it, but I also do not grant it. My conclusion is based on all of the reasons that I gave above, but most importantly, the timing. [139] With regard to the application dated September 20, the orders sought by the father in paragraphs one and two have been dismissed, and with regard to paragraph three, I am not ordering costs. [140] As to seeking such further other relief the honourable Court deems just, it seems appropriate for me to order that the mother is allowed to relocate with the children no sooner than December 15th. "Sharma J."