McDonald v. Leppanen

2022 BCSC 2190 McDonald v. Leppanen

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: McDonald v. Leppanen, 2022 BCSC 2190 Date: 20220819 Docket: E94987 Registry: Nanaimo Between: Rebecca McDonald Claimant And Jussi Leppanen Respondent Before: The Honourable Mr. Justice Baird Oral Reasons for Judgment In Chambers Counsel for the Claimant: S. McPhee, Q.C. Counsel for the Respondent: A. Mattila Place and Date of Trial: Nanaimo, B.C. August 19, 2022 Place and Date of Judgment: Nanaimo, B.C. August 19, 2022 [1] THE COURT: Today, of course, is August the 19th, and I have under consideration the immediate arrangements for a young boy of six, N.L., who needs to know where he is going to school in just a couple of weeks. I am going to make my ruling now because of those time strictures. I accept that the timing of the application was something that could not be helped. I understand that the matter was set for a hearing in June, and that it was adjourned because of a change of counsel. [2] I would also like to say that this is a difficult decision for me to make because you both seem like really nice people and you are both obviously excellent parents. The good news is that we are not talking here about one of you wanting to move to Australia or to Singapore. The order sought, instead, is that the child be relocated to Qualicum Beach from Comox. It is not the end of the world and everything is going to be just fine. [3]

I realise and appreciate, as well, the efforts that you both made to try and figure this out on your own. I understand that this is a totally honest disagreement between the two of you, and I would express the very ardent hope that after this is done you will be able restore your productive relationship to its status quo before this dispute arose, the obviously warm relationship that you, Mr. Leppanen, have with Ms. McDonald's folks in Nelson, and that you, Ms. McDonald, have always had with Mr. Leppanen's family in Comox, especially with his sister-in-law, Catherine. I am really impressed by the way you have handled this separation and how you have successfully co-parented your son. [4] That is all by way of introductory language. The substance of my ruling is this. [5] In this family law case the claimant, Rebecca McDonald, seeks the following orders as set out in the notice of application: 1. The parents are guardians of the child, [N.L.], born 09/09/2016 [and soon to be six years old].

2. The parties have the parental responsibilities set out in S 41 of the [Family Law Act].

3. The parties discuss important issues concerning the child and attempt to reach a decision together. If the parties cannot decide, the Claimant be permitted to make the decision and the Respondent be permitted to apply to court if he considers the decision not to be in the child's best interests.

4. The Claimant be permitted to change the residence of the child to Qualicum Beach and to enroll the child in school in Qualicum Beach.

5. The Claimant have the primary care and residence of the child.

6. The parties have parenting time of the child as set out in Exhibit A to the Affidavit of the Claimant, sworn June 15, 2022[, and that exhibit was the subject of some discussion during the hearing and it includes the claimant's proposal with respect to guaranteeing the maintenance of a suitable degree of contact and of parenting time for Mr. Leppanen].

7. Pursuant to S 221 of the [Family Law Act], the respondent pay to the Claimant the fine of $5,000 as a result of his misuse of the court process, and specifically the false declaration of urgency made in his Provincial Court application about a priority parenting matter 8. The Claimant be awarded her costs of this application. [6] I should pause here to say that the seventh of these orders was not actively pursued and I am going to dismiss it for reasons that I will refer to briefly in just a minute. [7] The respondent, of course, consents to the first two orders that I have just read, namely, that the parents are guardians of N.L. and that they should share the parental responsibilities set out in s. 41 of the Family Law Act, S.B.C. 2011, c. 25 (the "Act"). The main issue before me, then, is the proposed relocation of N.L. to Qualicum Beach, B.C., from Comox, B.C. As there is no written agreement or court order concerning parenting arrangements for N.L., the parties agree that the matter of relocation falls to be decided under s. 46 of the Act, which reads as follows: 46(1) This section applies if all of the following circumstances exist: (a) no written agreement or order respecting parenting arrangements applies in respect of a child; (b) an application is made for an order described in section 45 (1) (a) or (b) [orders respecting parenting arrangements]; (c) the child's

guardian plans to change the location of that child's residence and the change can reasonably be expected to have a significant impact on that child's relationship with another guardian. (2) To determine the parenting arrangements that would be in the best interests of the child in the circumstances set out in subsection (1) of this section, the court (a) must consider, in addition to the factors set out in section 37(2) [best interests of child], the reasons for the change in the location of the child's residence, and (b) must not consider whether the guardian who is planning to move would do so without the child. [8] The provisions of s. 37(2) of the statute, under the heading, "The best interest of the child", that are relevant to the present application are: (a) the child's health and emotional well-being; . . . (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; . . .

BACKGROUND [9] The parties began living together in Vancouver in February 2015. They moved to Comox in May 2017 when N.L. was approximately nine months old. They separated in January 2019. [10] I am abundantly satisfied on all of the evidence that both parties are excellent parents. Each of them I find has been intimately, attentively, actively and meaningfully involved in the child's care and upbringing since his birth. The parties' separation was amicable. The respondent left the family home and established his own residence nearby. The parties jointly decided to enrol N.L. in a local school near to where they both live. It is a French immersion school called École Robb Road where N.L. has just finished kindergarten. [11] I find that in the months immediately after separation, N.L. lived primarily with the claimant, his mother, but throughout the respondent had plenty of parenting time, including regular overnights. The parties, though separated, continued seeing one another on a near daily basis, and this included having suppers together many nights of the year, socialising together with friends, and spending time with the respondent's extended family. I refer now to N.L.'s paternal grandmother, the respondent's brother, his wife, and their children, who are aged 11, 14 -- two young girls who are aged 11 and 14 respectively. These are relatives with whom N.L. has closely

associated throughout his life. He has had a warm, loving and consistent and close relationship with his paternal uncle, aunt, his cousins and grandmother. In fact, the respondent's brother and family moved to Comox shortly after the parties did, maybe because they visited them there and thought it would be a good idea for them to live there, too. The child's grandmother, referred to in the family vocabulary as Mumu, is becoming elderly. She is in the incipient stages of Alzheimer's Disease and everybody knows that there is only one way that can go, and so it has been argued before me today that maximum contact with Mumu is important before she is no longer able to remember even her closest family. [12] It is obvious, as well, that the respondent has always had a warm and cordial relationship with Ms. McDonald's parents who live in Nelson, and as I have already said, I am impressed by the extent to which the parties have attempted to maintain connections with their respective families even though they have split up. [13] It is of course very important in deliberating over this matter to emphasise that since November 2020, a period covering roughly a third of N.L.'s life, he has been living with his parents in a 50/50 co-parenting arrangement that, until recently anyway, was succeeding beautifully, flawlessly. [14] But life moves on and people have to reorder their lives, and in

July 2020 the claimant entered into a relationship with and is now engaged to be married to a new partner who lives in Qualicum Beach, B.C., with his two children, who are aged 10 and seven. Not surprisingly, the claimant wishes to move to Qualicum Beach to begin her new life. Ms. McDonald says that it is in N.L.'s best interests to relocate with her. She tells me that N.L. has bonded with his soon-to-be stepsiblings and that there is a place for him at a good local school, Qualicum Elementary. He will be living in a spacious house on five acres in which he will have a room of his own. Both the claimant and her new partner work from home, so there will always be someone on hand to look after N.L. after school. [15] The claimant's principal point, one that was emphasised at significant length during the hearing this morning, is that she has been N.L.'s primary caregiver throughout his life. She does not dispute that the respondent is and always has been a fully engaged co-parent but says that she has always occupied the leading role in organizing N.L.'s affairs, enrolling him in schools, arranging for doctor's appointments, involving him in and getting him to and from activities, arranging people to look after him when the parties are at work, organising birthday parties, holiday celebrations, and so on. [16] I am satisfied that the parties are co-parents in every sense of the

word, but for whatever it might be worth, I find that the claimant took the lead in arranging most of N.L.'s daily affairs before separation and at least in the first couple of years thereafter, all of it with the active involvement, consent and approval of the respondent, who quite rightly and with perfect confidence trusted that the claimant would make sound decisions in N.L.'s best interests. I do not mean by any of this that the respondent is, or ever has been, a secondary parent, only that he left the management of many of the logistical aspects of family life to the claimant for the simple and sound reason that she was very good at it. [17] The claimant has suggested that her proposed move is not, in actual fact, a "relocation". Comox and Qualicum Beach are just over 70 kilometres apart, and in reasonable motoring conditions, one can travel between the two places in under an hour. In my view, however, this case is analogous to the decision of this court in R.D.M. v. A.J.Y., 2019 BCSC 127, and for reasons similar to those expressed in that case, in my view this is definitely a relocation in the sense that the claimant proposes to remove N.L. from his school in Comox, to enrol him in another one in Qualicum Beach, to significantly restructure the rhythms and routines of N.L.'s daily life, to remove him from the community where he has lived for most of his life, and to put

him at a distance from the respondent's relatives, and so on. [18] This proposed relocation, moreover, would involve what I consider to be a significant impact on the nature and quality of N.L.'s relationship with the respondent, his father, who, if the order sought by the claimant is granted on the terms which she has proposed, will instantaneously be transformed from an equal co-parent to a weekend and holiday parent, and this, as far as I am concerned, is a very significant proposed change in this young boy's life. [19] It may be that N.L. has recently become accustomed to spending a good deal of time in Qualicum Beach, and although information about it is not abundant, I accept that he has bonded with his future stepfather and stepsiblings. But it is not to be overlooked that his established routine, solidly in place for the last two of his six years, has included spending two weeks of every month with his father and not just partial weekends and holidays. [20] There is no doubt that the claimant's proposed move to Qualicum Beach is made in good faith and not for any oblique or improper purpose. It is not her intention to undermine the respondent's relationship with N.L. or to defeat his parenting rights. However, having evaluated the evidence carefully and having listened to counsel's able submissions this afternoon, I am not persuaded that her proposed move is in N.L.'s

best interests. [21] The claimant will be able to carry on organising N.L.'s routines and activities if he remains in Comox. As I was saying earlier on, the good news about this whole thing is that neither parent is ever going to be far removed from N.L. and his daily affairs can be managed perfectly adequately between the two of you from where both of you live. You are going to be able to carry on doing what you have long done on N.L.'s behalf without interruption, and the respondent is becoming accustomed to and is perfectly capable of taking on a greater role in this. [22] To this extent, in my view, the claimant's undoubted domestic managerial skills do not tip the balance in favour of relocation. I also do not think that it is in N.L.'s best interests to have only a weekend and holiday relationship with his father. He is used to more regular contact than this and, in my view, his best interests lie in continuing to enjoy it. It is what he is accustomed to, of course, but more importantly I believe that it is good for his emotional and developmental well‑being. I have in mind, as well, the importance of the strength and warmth of N.L.'s relationship with his paternal grandmother, uncle, aunt, and especially his young cousins with whom he has a sibling-like relationship, and who along with his friends in the neighbourhood, at school and in the community form a vital support

group for N.L. [23] I have been told and I accept that N.L. suffers from anxiety and has recently been exhibiting some concerning behaviours at school. The staff at the school he presently attends in Comox have been working with the parties to address these problems, and in my view they are doing so successfully. I do not doubt that Qualicum Beach Elementary is a perfectly adequate school, but in my assessment N.L. is on the way to thriving where he is and I am not satisfied that it is in his best interests to make a change of schools and scenery at this sensitive time in his young life. [24] I note, as well, the point recently made by Mr. Mattila that N.L.'s Auntie Catherine, his paternal uncle's wife, with whom, as I have said, he has enjoyed a lifelong consistent and loving relationship, is a school teacher who specialises in dealing with children experiencing behavioral problems. In my view, regular contact with her will doubtless be very helpful. [25] In short, I find that both parents are equally and well equipped to look after N.L.'s needs and to make good, fit, proper and sensible decisions concerning his welfare and upbringing in the discharge of their parental responsibilities. I do not feel that either parent is the superior of the other in this connection. In my view, to the contrary, they are equals in every way that matters. [26] On an application such as this the

onus of persuasion rests with the applicant, which in this case is the claimant, Ms. McDonald. On all of the evidence, which I have read and considered carefully, every paragraph of both parties' lengthy affidavits and all of their attachments including the emails, even those that were very difficult to read because they were in such small font, and I came to work with a heavy heart this morning because I knew this was going to be a tough call. But the onus, as I was saying, is on the claimant to establish that the relocation she proposes with N.L. to Qualicum Beach is in N.L.'s best interests. I am not satisfied on all of the evidence, at least at present, that she has discharged this onus, and for the time being, at any rate, it is my ruling, it is my decision, that N.L., for the reasons given, should stay at home in Comox. [27] I decline to make an order under s. 221 of the Act. While I am certain that the application made by Mr. Leppanen, the respondent, in Provincial Court in February of this year was unnecessary, as I do not believe the claimant would ever have moved N.L. to Qualicum Beach without a court order or your agreement, I am prepared to accept that it was on the basis of a misunderstanding. I think I should warn you, however, that if I am wrong about that, it is very foolish to abuse the processes of the court for an improper purpose. It can get you in a lot of

trouble. Mr. McPhee, as I said, has not aggressively pursued that order and I am denying it. [28] With respect to paragraph three of the notice, I am not going to make that order, either, because I am totally satisfied that you are capable, both of you, of agreeing with each other on matters touching upon N.L.'s vital interests. You have done so successfully all these years and I know that your motives in every decision you make are of the purest and best and that this will continue happening. I do not think you are going to have any problems, but if you do you can always come to court for assistance. But I expect you will be able to manage things consensually. [29] In the result, and for those reasons, the application before me today is dismissed. [30] I am grateful to counsel for their submissions. They have assisted me a great deal. [31] CNSL S. MCPHEE: Mr. Justice, just to be clear, one and two is consented to? [32] THE COURT: Oh, yes, and I will make those orders. The orders sought in paragraphs one and two will go by consent. Yes, absolutely. [33] CNSL S. MCPHEE: I just have a -- and I mean, when I am not successful I should not be standing up and arguing with you but I am not going to do that. But the reality is now that the claimant is not a weekend parent, and so, I will be clear, what -- what parenting order -- what parenting order is going to be in place now given --

given your reasons that the respondent -- [34] THE COURT: I have one application before me. I do not have any cross-application. [35] CNSL S. MCPHEE: But the result is the respondent is not going to be turned into a weekend parent because of the reasons you set. Yet the result is that the claimant is now going to have to take that role. [36] THE COURT: Well, perhaps other arrangements can be made. I am merely dealing with the application that is before me, which I have decided to dismiss. [37] CNSL A. MATTILA: And you -- [38] THE COURT: Unless there is -- if you want to talk about it, I will be happy to do so but -- [39] CNSL S. MCPHEE: I am not sure I would be able to do that right now -- [40] CNSL A. MATTILA: I will just make one note that -- and I know in the circumstances she has already been living down there in the summer, but based on these kinds of applications we cannot assume that she is going to continue to live in Qualicum Beach, so... [41] THE COURT: I do not know. I do not have a crystal ball. The parties are going to have to figure out something else in the circumstances, and there again, I am cautiously optimistic that they will able to do that between themselves by agreement. If there are any problems, then come back to court, if you think it is advisable, I will be happy to assist you if I can. Thank you. "Baird J."