M.K.A. v. A.F.W.

2013 BCSC 1415 M.K.A. v. A.F.W. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: M.K.A. v. A.F.W., 2013 BCSC 1415 Date: 20130705 Docket: F89895 Registry: Kelowna Between: M.K.A. Claimant And A.F.W. Respondent Before: Master Young Oral Reasons for Judgment In Chambers Counsel for the Claimant: K. Sabey Appearing on her own behalf: A.F.W. (a.k.a. A.S.) Place and Date of Trial/Hearing: Kelowna, B.C. June 19, 2013 Place and Date of Judgment: Kelowna, B.C. July 5, 2013 [1] THE COURT: The claimant is represented by Mr. Sabey, and respondent is self-represented. On June 19, 2013, by notice of application dated May 10, 2013, the claimant father brought an application pursuant to s. 69 of the Family Law Act, S.B.C. 2011, c. 25, for an order to prohibit the respondent mother from relocating the child, PA, to Alberta. [2] The facts are that the parties were married in 2004. They have one child, PA, born January 2006. She is now seven. The parties and PA have lived in Kelowna since PA was born. The parties separated in November 2009. [3] On December 9, 2009, the parties signed a separation agreement which grants them joint guardianship, and stipulated that the child will primarily reside with the mother. There is no restriction on relocation of the child's residence in the separation agreement. [4] The agreement provides the claimant father generous parenting time with the child, including every week from Thursday after school at 4 p.m. to Saturday evening, and other access as can be agreed upon. They have agreed to share holidays and an evening every week. He has cared for the child when the respondent mother has been away for two weeks. The remainder of the time, the child is with her mother. [5] The parties divorced in April 2011. The respondent remarried 18 months ago. She lived in Kelowna with her new husband for the first six months, but then her husband had to move to Edmonton, Alberta, to complete his welding training. For the last year, the respondent mother has remained in Kelowna with the child and her new infant, who is 14 months old, and has visited her husband in Edmonton when she can. Her husband cannot get sufficient time off to travel to Kelowna often. [6] The respondent mother remained in Kelowna because the claimant would not consent to her moving to Edmonton with the child. The claimant father opposes the move because he thinks that it would not be in the child's best interests to move. He lists a number of factors, which he says should satisfy the court that the move is not in the best interests of the child. [7] He has a close relationship with her. He takes her to swimming class one night a week and has her two nights a week overnight. This parenting time will be dramatically altered if the move is allowed. [8] He lists the following factors in his application. The child was born in Kelowna and had her primary residence always in Kelowna. The child has regular parenting time with her father who continues to reside in Kelowna. The child regularly has contact with other family members living in Kelowna or near Kelowna, who play a significant role in the child's life. The child has friends in Kelowna. The child is seven years of age and currently has stability in her schedule. The child regularly attends extracurricular programs in Kelowna and is enrolled in karate and swimming, and she has strong attachments with the other children and her instructors. The child is enrolled in school in Kelowna and is doing well academically, physically and socially. A move to Edmonton, in his view, would disrupt the stability enjoyed by the child. [9] The respondent mother is working outside the home in Kelowna and had to take a different job and a drop in pay because she has no childcare on the weekends. [10] The respondent has been a Type 1 diabetic for 21 years. She has been hospitalized twice in the past year. Her doctor describes her as a brittle diabetic, which I understand to mean that it is difficult at times to control her blood sugar. This is what she says (as read in): I have been living with Type 1 diabetes for 21 years and for the most part I have never lived on my own. I have no immediate family that resides in Kelowna and I have been hospitalized two times this past year. I have to rely on my mother to come from Chase, B.C., to come and look after me and two children at 4 a.m. This is not a good situation and leaves a lot of responsibility on the child if something were to arise. [11] This poses a serious health risk to the respondent and some risk to the children if left in the sole care of their mother without the support of another family member. The respondent has managed that risk by relying on her parents and on the claimant at times, but neither of them live in the same residence with her. [12] She and her husband are finding it financially very difficult to maintain two homes and pay for the travel back and forth from Alberta to Kelowna. She is very hopeful that her family will be able to return to Kelowna once her husband's training is completed. There is no guarantee that that will happen, but it is her hope. [13] I accept her evidence that she has really tried to make this arrangement work, but she is exhausted now and overwhelmed, trying to be a single parent of a baby and a seven-year-old and dealing with her health concerns. [14] The respondent is offering generous parenting time to the claimant father. She has proposed that PA spend two months every summer with her father in Kelowna, two weeks at spring break, two weeks for winter holiday, and long weekends whenever possible. She is prepared to pay for the child's travel to Kelowna, and because she has family in Kelowna, she anticipates that she would travel with the child to Kelowna and use that time to visit her family. [15] The claimant has extended family in Edmonton, so if he chose to visit the child in Edmonton on a long weekend, the respondent says that it is likely the claimant would be offered accommodation by his family. The Law [16] I am going to set out the relevant sections of the new Family Law Act here for ease of reference. I am not going to read them into the record, but when this decision is transcribed, I am directing the transcriber to include ss. 66, 67, 68 and 69 of the Family Law Act, and to emphasize 69(4) and sub (6) and sub (7). Notice of relocation 66 (1) Subject to subsection (2), a child's guardian who plans to relocate himself or herself or a child, or both, must give to all other guardians and persons having contact with the child at least 60 days' written notice of (a) the date of the relocation, and (b) the name of the proposed location. (2) The court may grant an exemption from all or part of the requirement to give notice under subsection (1) if satisfied that (a) notice cannot be given without incurring a risk of family violence by another guardian or a person having contact with the child, or (b) there is no ongoing relationship between the child and the other guardian or the person having contact with the child. (3) An application for an exemption under subsection (2) may be made in the absence of any other party. Resolving issues arising from relocation 67 (1) If notice is required under section 66 [notice of relocation], after the notice is given and before the date of the relocation, the child's guardians and the persons having contact with the child must use their best efforts to cooperate with one another for the purpose of resolving any issues relating to the proposed relocation. (2) Nothing in subsection (1) prevents (a) a guardian from making an application under section 69 [orders respecting relocation], or (b) a person having contact with the child from making an application under section 59 [orders respecting contact] or 60 [changing, suspending or terminating orders respecting contact], as applicable, for the purpose of maintaining the relationship between the child and a person having contact with the child if relocation occurs. Child may be relocated unless guardian objects 68 If a child's guardian gives notice under section 66 [notice of relocation] that the guardian plans to relocate the child, the relocation may occur on or after the date set out in the notice unless another guardian of the child, within 30 days after receiving the notice, files an application for an order to prohibit the relocation. Orders respecting relocation 69 (1) In this section, "relocating guardian" means a guardian who plans to relocate a child. (2) On application by a guardian, a court may make an order permitting or prohibiting the relocation of a child by the relocating guardian. (3) Despite section 37 (1) [best interests of child], the court, in making an order under this section, must consider, in addition to the factors set out in section 37 (2), the factors set out in subsection (4) (a) of this section. (4) If an application is made under this section and the relocating guardian and another guardian do not have substantially equal parenting time with the child, (a) the relocating guardian must satisfy the court that (i) the proposed relocation is made in good faith, and (ii) the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child's other guardians, persons who are entitled to contact with the child, and other persons who have a significant role in the child's life, and (b) on the court being satisfied of the factors referred to in paragraph (a), the relocation must be considered to be in the best interests of the child unless another guardian satisfies the court otherwise. (5) If an application is made under this section and the relocating guardian and another guardian have substantially equal parenting time with the child, the relocating guardian must satisfy the court (a) of the factors described in subsection (4) (a), and (b) that the relocation is in the best interests of the child. (6) For the purposes of determining if the proposed relocation is made in good faith, the court must consider all relevant factors, including the following: (a) the reasons for the proposed relocation; (b) whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, of the relocating guardian, including increasing emotional well-being or financial or educational opportunities; (c) whether notice was given under section 66 [notice of relocation]; (d) any restrictions on relocation contained in a written agreement or an order. (7) In determining whether to make an order under this section, the court must not consider whether a guardian would still relocate if the child's relocation were not permitted. [Emphasis Added] [17] The Family Law Act Transition Guide explains at page 3-100 that in the situation where the guardians of a child do not have substantially equal parenting time, the moving guardian who has the majority of the time with the care of the child must show good‑faith reasons for the move, and he/she must provide reasonable and workable parenting arrangements that will maintain the relationship between the child and the other guardian. If the court is satisfied that those two things are established, then there is a presumption in favour of the move, unless the objecting guardian satisfies the court that the move is not in the best interests of the child. [18] The respondent parent must address the factors the court may consider in determining what is in the best interests of the child and those factors are enumerated in s. 37(2) of the Family Law Act. [19] I have determined that the parties do not have substantially equal parenting time. If the claimant spent four weeks of vacation full-time with the child in addition to his usual weekly schedule, then he would be spending approximately 36 percent of the time with the child. Therefore, s. 69(4)(a) of the Family Law Act applies, and I am to consider whether the proposed relocation is made in good faith. [20] I am satisfied that the proposed relocation is made in good faith. The respondent has tried to avoid the move and, in my mind, has gone further than most parents would to maintain contact and support the attachment between the child and her father. She tells the court that she is exhausted and cannot continue to be a single parent of two children, who has to commute to Edmonton to spend time with her spouse, and who has to pay to support two households. These are legitimate reasons for the move. The respondent's health and financial wellbeing of the family with whom the child primarily resides is in jeopardy if the existing situation continues. [21] Next, I am to consider whether 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. [22] I find that the proposed arrangements for parenting time for the claimant are reasonable and workable, and very generous. The child is to spend every summer with her father for two months. In addition, she would spend two weeks' winter holiday from school and the full spring break holiday with her father. The respondent offers to transport the child at her expense and to offer additional visits in Edmonton, if the claimant wishes to travel to Edmonton. [23] The onus shifts to the claimant to satisfy me that the move is not in the best interests of the child, having consideration for the factors below, and I am instructing the transcriber to insert s. 37 of the Family Law Act here. I will not read it out. Best interests of child 37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only. (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. [24] I do agree with the claimant that the move will be disruptive for the child. My main concern is that it will change the frequency of her contact with her father. Right now, she sees him three days a week. If I permit the move, she will have to wait months in between visits, which is really -- which will be hard for a child of seven years of age. [25] The flip side is that the visits will be much longer and exclusively with her father. These long visits should have the effect of maintaining a strong connection between them. It will be important to maintain telephone or Skype contact in between visits to reduce the child's anxiety during the waiting period. Presumably the claimant's parents, who play a significant role in the child's life, will visit the child when she is with her father. They may also have the flexibility to travel to Edmonton as they are now retired. [26] I have not considered the views of the child. The parents did not include her in this decision because she is so young, and I agree with them. It is too big a decision to ask a seven-year-old to grapple with. [27] I have less concern about the attachments to aunts, uncles, cousins or teachers and friends. There is no evidence before me that this child lacks the resiliency to adapt to the changes in her routine or to a change in her school. She will have the support of her mother, to whom she is closely attached, during these transitions. [28] Although the move will be disruptive, I find that the current situation is potentially harmful for the respondent. If her health or financial wellbeing is jeopardized, that will have a very detrimental effect on the child. A move to Edmonton to join her husband will provide the respondent with parenting support and reduce the financial strain on the family. The child would reside in an intact family with her mother, new stepfather and baby sister. [29] When comparing the two options, I find that the move to Edmonton will enhance the general quality of life for the child, if she is allowed to move with her mother and her sister, provided that she has contact with her father and that contact remains generous. It will clearly enhance the quality of life with the respondent and reduce the risk to her health. I find that it is in the best interests of the child to permit her to move to Edmonton with her mother and her mother's family to maintain the wellbeing of that family unit. [30] I am not satisfied on this evidence that the primary residence of the child should change to the father's residence. The respondent has family in Kelowna and so she is willing to transport the child, which will give her an opportunity to visit her family. I am satisfied that she will make every effort to maintain the child's contact with her father and her father's extended family. [31] So, I accept the respondent's proposal for contact, and now I am going to make some court orders. [32] First of all, I will permit the move to Edmonton for the child, and I order that the claimant father has contact with the child, or parenting time, for two months in the summer in Kelowna; two weeks during the December winter break in Kelowna; two weeks during spring break in Kelowna; and any additional long weekend visits when possible in Kelowna. [33] The cost of transporting the child from Edmonton to Kelowna will be borne solely by the respondent because she has offered to do this. [34] Additional weekend visits are available to the claimant to be arranged between the parties. Those visits would be in Edmonton, and the claimant would be responsible for his travel to Edmonton. [35] There should be at least two telephone contacts per week, a minimum of two per week, and I do not know if the parties have computers or Skype video calls available to them, but if they do, they should try to implement that. [36] Any further move anticipated outside Edmonton would require the 60-day written notice, again pursuant to s. 66 of the Family Law Act. [37] Now, this is certainly a difficult decision for everybody, and I think everyone represented their positions fairly. I am not going to award costs to either party, so each party bears their own costs. [38] So, what will happen now is that I will ask Mr. Sabey if he could prepare the court order. [39] MR. SABEY: Yes, Your Honour. [40] THE COURT: Okay. Thank you. [41] And Ms. [S], are you moving to Edmonton right away or are you -- when are you going? [42] A.S.: Well, we're in Edmonton right now but -- [43] THE COURT: Oh, you are in Edmonton now. Okay. [44] A.S.: Yeah. I was just waiting to find out what was happening, so we'll be back in Kelowna for -- in a week or two, and PA can stay with [M.A.] for the remainder of the summer. And we'll -- we'll move, do all the moving and stuff without -- without her. [45] THE COURT: Okay. What I am going to do, Ms. [S], is I am going to dispense with the requirement that you sign this court order. What will happen is Mr. Sabey will prepare the order, and my clerk is typing the terms of the order, so we will make sure that it is correct and the court will stamp it, and then Mr. Sabey will send you a copy of the court order once it is entered. It just means you do not have to proofread it, okay? [46] A.S.: Okay. [47] THE COURT: And then I am directing that a transcript of these reasons be prepared and made available to both of the parties. So, I think what happens is that the registry calls the parties when the transcript is available. "B.M. Young" Master Young