IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

A.D.W. v. B.J.W.,

 

2018 BCSC 1179

Date: 20180713

Docket: E141467

Registry: Vancouver

Between:

A.D.W. a.k.a. A.D.N.

Claimant

And

B.J.W.

Respondent

Before: The Honourable Madam Justice Dardi

Reasons for Judgment

Counsel for the Claimant:

C. Carta

A. Sarkaria (A/S)

Counsel for the Respondent:

M. Brandon

Place and Date of Trial/Hearing:

Vancouver, B.C.

May 28 to 31, 2018 and
June 1, 2018

Place and Date of Judgment:

Vancouver, B.C.

July 13, 2018


 

Introduction

[1]             The central issue in this family law case is the determination of the best parenting arrangement for the parties’ nine-year old son.

[2]             The parties were divorced pursuant to an order of this Court dated February 1, 2016 (the “Final Order”). There is one child of the marriage, J., who was born in February, 2009. The Final Order addressed parenting issues, child support, and property issues. The pertinent terms provided for a review of the parenting schedule:

7. BY CONSENT, at the request of either Party the Parties may review their parenting schedule in August 2018, prior to the Child entering grade 4.

[3]             In order to protect the privacy and well-being of the parties’ child, I have used initials for the parties and their child and, to the extent possible, omitted references to non-essential details. I also make an order that the parties’ initials be used in the style of cause.

[4]             The respondent father filed a notice of application on February 27, 2018 seeking a review of the parties’ parenting schedule as well as a review of the parties’ child support and s. 7 obligations. The parties agreed that the review contemplated in the Final Order would be heard prior to August 2018.

[5]             On March 12, 2018, the mother filed a notice of application seeking an order that she be at liberty to relocate J.’s primary residence to Edmonton, Alberta prior to the commencement of the 2018/2019 school year.

[6]             On March 23, 2018, this Court ordered by consent that there be a trial on the issues set out in the parties’ respective applications.

[7]             The matter proceeded to a five-day trial.

[8]             In these Reasons for Judgment, I will summarize the pertinent facts, refer to the applicable legal principles, and set out my analysis of the issues on the merits. While I will not set out the evidence fully, I have reviewed and considered all of the evidence of the parties and the witnesses they called.

The Parties

[9]             The mother, who is currently 31 years old, has worked for BC Hydro as a project manager since 2015. She formerly worked as an independent contractor but in January 2018, she acquired full-time regular employee status. She described it as a good job.

[10]         It is not disputed that her 2018 income for purposes of the Federal Child Support Guidelines, SOR/97-175 [the Guidelines] is $124,583.

[11]         The mother obtained a diploma in engineering design and drafting from the Northern Alberta Institute of Technology and she also has a graduate certificate in project management from the University of Alberta. Following her move to the Lower Mainland from Edmonton in May 2012, the mother worked for a consulting company in B.C. In Edmonton, she had worked in various capacities in the oil and gas industry.

[12]         The mother lives in a rental townhouse in Port Coquitlam that is in close proximity to J.’s school.

[13]         The father, who is 32 years old, is a journeyman machinist. From May 2012 to September 2015, he was employed as a mechanic in the Lower Mainland. From September 2015 to December 2016, he was unemployed except for a few months of casual work as a construction worker. He has been employed since December 2016 as a mechanic with a geotechnical instrument company. It is a regular full-time position that offers him flexibility in the scheduling of his parental obligations.

[14]         It is agreed that the father’s Guideline income for 2018 is $62,525.

[15]         The father married S.W. (“S.W.”) on October 21, 2017. S.W. has a diploma in addiction counselling and social services. She is currently employed by the B.C. provincial government.

[16]         The father and S.W. live in a large rental property in east Maple Ridge (the “Maple Ridge Property”) that is adjacent to a green space. Their property has a large yard and outdoor pool. The father has taken care of the family pets since separation. J. has had a life-long bond with the family dog.

[17]         The parties were both raised as Jehovah’s Witnesses. There is no dispute that J. will be raised in the Jehovah’s Witness faith. However, the father was disfellowshipped in 2015 after he engaged in certain behaviour that was considered by the church elders to deviate from the accepted standards of conduct and morality endorsed by the faith. The father states that his goal is to be reinstated to the congregation and, although he is not part of the congregation, he attends his local Kingdom Hall meetings in furtherance of his efforts towards reinstatement. For the most part, his family members and friends who are Jehovah’s Witnesses have not associated with him since he was disfellowshipped. The father’s parents have never met his new wife.

The Child

[18]         J., who is 9 years old, will be entering Grade 4 in September. He has attended the same elementary school in Port Coquitlam since kindergarten. Before and after school, he attends a day-care that is across the street from his school.

[19]         J.’s school offers both a French Immersion program and a regular school program in English. He has been enrolled in a French Immersion program since kindergarten. Overall, he does well in school with the exception of some recent challenges in French. While J.’s performance in French has improved over the last year, it was unclear at trial whether he would be continuing in the French Immersion program if he remains in the Lower Mainland.

[20]         Since 2014, J. has belonged to a junior soccer league that he enjoys a great deal. In the past, he has also taken horseback riding lessons and swimming lessons.

[21]         J. has a medical issue that has required several surgeries and specialist appointments since his birth.

[22]         The totality of the evidence supports a finding that J. is a bright, happy, and well-adjusted boy who enjoys socializing with his friends and extended family.

Overview

[23]         The parties were married in Edmonton, Alberta on December 23, 2006. The parties’ child, J., was born on February 9, 2009.

[24]         The parties separated in May 2010.

[25]         At the mother’s instigation and after separation, the parties agreed that each of them and J. would relocate to British Columbia in the spring of 2012. J. was three years old when his parents moved to B.C.

[26]         From the time the mother relocated from Edmonton, she has resided in the same townhouse in Port Coquitlam. The father initially moved to Surrey where he resided in his fifth wheel trailer. He subsequently moved to Fort Langley in 2012 and resided in a mobile home and then to the Maple Ridge Property in 2016 where he currently resides with S.W.

[27]         Since separation, J.’s primary residence has been with his mother and the father has had two days/nights per week of parenting time. He initially had parenting time from Sundays to Tuesdays but his parenting time subsequently changed to Mondays and Tuesdays with a Wednesday morning drop-off. Additionally, the father has had parenting time during the winter and spring school breaks and during summer vacation.

[28]         In 2012, the parties sold their home in Edmonton and approximately $380,000 in net sale proceeds were held in trust until the Final Order was pronounced in February, 2016. In September, 2015, the parties engaged the services of a professional mediator in B.C. and finally settled their matrimonial dispute. The father executed a memorandum of understanding that provided that he would be entitled to a review of his parenting time in August 2018. The terms of the settlement were incorporated in the Final Order. I will address the relevant terms of the Final Order in the next section of these Reasons.

[29]         At the time the father signed the memorandum of understanding in 2015, he was unemployed, had no vehicle, and had been disfellowshipped from the Jehovah's Witnesses. By his own admission, he was consuming more alcohol than he should have, and was struggling with personal issues.

[30]         After the Final Order was pronounced in February 2016, the father continued to exercise regular parenting time with J. on Monday to Wednesday mornings and on some occasional weekends either in substitution for or in addition to his regular parenting time. The father continued to have parenting time during the winter and spring school breaks and during summer vacation.

[31]         The mother and J. visit Edmonton frequently and the father has been cooperative in facilitating those visits.

[32]         In June 2017, the mother informed the father of her intention to relocate back to Edmonton.

Terms of the Final Order

[33]         The Final Order provided as follows with respect to parenting issues:

                         (i)          Custody, Guardianship and Access

2.     BY CONSENT, the Parties shall continue to both be joint custodial parents to, and joint guardians of, the Child.

3.     BY CONSENT, the Child will reside primarily with the Claimant.

4.     BY CONSENT, the Respondent will have reasonable and generous parenting time with the Child, which shall include two days/nights in each week. When setting the weekly parenting time schedule the Parties will consider the Respondent’s work schedule (in order to maximize the Respondent’s time with the Child).

5.     BY CONSENT, the Parties will continue to be flexible with one another around their holiday time with Child and their travel time with the Child.

6.     BY CONSENT, if the Parties cannot agree on any issue concerning the Child then after having discussed the issue more fully if they still cannot agree the Claimant shall have the right to make the decision(s), and the Respondent shall have the right to have the decision reviewed by the Court if he disagrees with said decision.

7.     BY CONSENT, at the request of either Party the Parties may review their parenting schedule in August 2018, prior to the Child entering grade 4.

[34]         The Final Order also provided for a pre-payment of child support and s. 7 expenses by the father until August 2018 and provided for a review of child support:

13.       BY CONSENT, the Parties will review the payment of base child support and sharing of Section 7 Guidelines expenses before August 31, 2018, so that there is an updated mechanism in place by Sept. 1, 2018, for the payment of base child support and sharing of Section 7 Guidelines expenses.

The Mother’s Relocation Plan

[35]         The parties had some informal communication and telephone discussions about the proposed relocation commencing in June 2017. The father informed the mother in August 2017 that he did not want to relocate to Edmonton. On September 21, 2017, the mother emailed the father and formally informed him of her plan to relocate to Edmonton. She asked the father to reconsider relocating to Edmonton. She made the following two proposals:

Option 1 – [If the father relocates to Edmonton.]

1.     We would be able to keep the agreed to parenting arrangement.

2.     We would be able to switch up (1) mid-week day to (1) weekend day for totalling the (2) parenting days a week that [J.] has with you (i.e. Friday and Saturday or a Sunday and Monday), this would allow you even MORE quality time with [J.] than you have now – with the added benefit of your family support.

3.     I would be willing to assist you with your moving expenses and your first 3 months rent as I know the initial move would be expensive. We can talk about what that could look like.

4.     [J.] would spend days with your parents, sister and cousins in Edmonton – as shown by each trip to Edmonton and their visits here – I have always allowed free and easy access with [J.] to your family – this would strengthen his relationship with your family as well.

5.     [J.]’s sports and activities will be maintained in Edmonton (i.e. soccer, etc.) and he will be listed under my medical and dental benefits as he currently is for my new employment. You will continue to have access to all his medical, dental, school records, etc. as you always have – everything would stay the same for either Option 1 or 2 in these regards.

Option 2 – [If the father remains in the Lower Mainland.]

1.     I would make sure that [J.] has free and easy contact to you at all times. [J.] has his own iPad and can Skype or Facetime at any time. We could arrange specific times and/or allow for at least 4 times a week to be spent whenever works for you.

2.     [J.] could fly to see you or you could fly to see [J.] for one long weekend a month. There is always at least a long weekend or a Professional Development Day per month. I would be willing to cover all flight costs for [J.] (or I would reimburse you if you travel to see him – up to a maximum of $300 roundtrip) for the first 6 months. Flights from Abbotsford to Edmonton are typically $170 to $300 roundtrip).

Also, if you were to make any additional trips to Edmonton, in addition to the above, as long as you give me two days advance notice, [J.] would be able to spend additional time with you during your visit. After 6 months, I suggest a 50/50 split of travel costs. Any month that you travel to Edmonton I would forego child support that month ($550/month child support for $170 - $300 roundtrip flight would result in net positive for you [B.]).

3.     [J.] would spend one full month with you each summer.

4.     [J.] would spend a week with you over Christmas and one week over Spring Break.

FYI – [J.] is able to fly alone under the Unaccompanied Minor program through WestJet or Air Canada – he meets all the criteria. We can walk him to the gate and drop him off and pick him up.

5.     It would strengthen his relationship with his grandparents as well as [J.] would be able to spend a day a week with your parents and your sister in Edmonton. As your dad has been having some health issues lately it would be great for [J.} to spend good quality time with them as well.

[36]         At trial, the mother maintained that both parents locating back to Edmonton would be the ideal scenario for J. She proposed that in Edmonton, the father’s parenting time would increase to include alternating weekends and two days per week on a four week alternating schedule, as follows:

                           I.          Week One: Saturday and Sunday

                         II.          Week Two: Monday and Tuesday

                        III.          Week Three: Monday and Tuesday and Saturday and Sunday

                       IV.          Week Four: Monday and Tuesday

[37]         If the relocation was permitted and the father stayed in the Lower Mainland, she proposed:

1.     That the [father] be at liberty to have “Regular Parenting Time” with [J.] as follows:

a.     One long-weekend per month to include a statutory holiday, professional development day, or other day off school, with [J.] flying from Edmonton to Abbotsford/Vancouver, or the Respondent going to Edmonton to exercise parenting time;

b.     Each Summer Break, the [father] have one consecutive month of parenting time;

c.      Each Winter Break, the [father] have one consecutive month of parenting time;

d.     Each Spring Break, the [father] have one consecutive month of parenting time;

2.     That the [father] be at liberty to exercise additional parenting time any time he comes to Edmonton to visit his family or otherwise, provided that he provide at least 2-days’ notice to the [mother] of his intention to be in Edmonton.

3.     That the [mother], for a period of 6 months, cover 100% of the costs of the travel, up to $300.00 [each month], incurred for the [father] to exercise his Regular Parenting Time;

4.     That after a period of 6 months, in any month where the [father] incurs travel expenses to exercise his Regular Parenting Time, that the [father] be permitted to deduct the cost of the travel, up to $300.00, from the [father’s] monthly child support payment.

[38]         If the relocation is not permitted, the mother proposed to increase the father’s parenting time by one weekend per month (it is not clear whether her proposal includes Fridays) in addition to his two days per week for the next six months at which point it could be increased to include two weekends per month (in addition to his two days per week).

[39]         The father opposes the relocation plan and seeks an equal parenting regime in the Lower Mainland with the following schedule:

                         (i)          The [father] would have [J.] in his care every Monday at 2:30 p.m. to Wednesday morning, when he would drop [J.] off at school or daycare.

                        (ii)          The [mother] would have [J.] in her care every Wednesday at 2:30 p.m. to Friday morning, when she would drop [J.] off at school or daycare.

                      (iii)          The parties would then alternate weekends (Friday mornings to Monday mornings).

The “Regular Parenting Schedule”.

                      (iv)          Despite the Regular Parenting Schedule the parties would equally share the school Winter Break and the school Spring Break. Each party would be entitled to two uninterrupted weeks of vacation time with [J.] each summer.

                       (v)          On transition days when school is not in session the parties would be at liberty to arrange different pick-up and drop-off locations and times.

Legal Framework

[40]         The parties agree that the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) governs the parenting issues in this case. Section 16 of the Divorce Act provides in part:

16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

(7) Without limiting the generality of subsection (6), the court may include in an order under this section a term requiring any person who has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child.

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[41]         In the seminal decision of Gordon v. Goertz, [1996] 2 S.C.R. 27 [Gordon], the Supreme Court of Canada sets out the legal framework for analyzing parental mobility applications brought under the Divorce Act.

[42]         In Gordon, the custodial mother applied to move from Saskatchewan to Australia with their seven-year-old daughter against the wishes of the father. The mother was granted permission by the trial judge and had relocated by the time the matter came before the Supreme Court of Canada. The trial judge’s decision allowing the move was unanimously upheld by the Court, although the reasons were not unanimous and the parameters of access were modified.

[43]         At paras. 49–50, McLachlin J. summarized the principles which inform the analysis of parental mobility applications under the Divorce Act:

[49]      The law can by summarized as follows:

1.      The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

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

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

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

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

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

7.      More particularly the judge should consider, inter alia:

(a)     the existing custody arrangement and relationship between the child and the custodial parent;

(b)     the existing access arrangement and the relationship between the child and the access parent;

(c)     the desirability of maximizing contact between the child and both parents;

(d)     the views of the child;

(e)     the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

(f)      disruption to the child of a change in custody;

(g)     disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

[50]      In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community. The ultimate question in every case is this:  what is in the best interests of the child in all the circumstances, old as well as new?

[Emphasis in original.]

[44]         Gordon involved an application to vary an existing custody order. The Gordon analytical framework had has been applied in a modified manner to mobility issues that arise in the context of an initial application for custody and principal residency under the Divorce Act: Nunweiler v. Nunweiler, 2000 BCCA 300 [Nunweiler]. In Nunweiler, Madam Justice Saunders expounded:

[28]      The significance of the reasoning in Gordon v. Goertz in an initial determination of custody is, I consider, three-fold. First, the decision directs the court to consider the motive for a parent's relocation only in the context of assessing the parent's ability to meet the needs of the child. This, in my view, is as relevant a direction on an initial custody hearing as on a variation hearing. Second, the decision confirms the significance of the instruction, found in s. 16(10), to consider the willingness of a parent to facilitate contact, but notes that this consideration is subordinate to over-all consideration of the best interests of the child. Third, and more broadly, it approaches the issue of a relocation of residence from a perspective of respect for a parent's decision to live and work where he or she chooses, barring an improper motive.

[45]         The blended analysis that includes a consideration of the mobility issue as part of, and not separate from, the determination of the custody issue was endorsed by the Court of Appeal in Falvai v. Falvai, 2008 BCCA 503 [Falvai] at paras. 24-25 and in Hejzlar v. Mitchell-Hejzlar, 2011 BCCA 230 at para. 22 [Hejzlar]. 

[46]         In Falvai, the trial judge was found to be in error in conducting the two-step analysis in which he first decided custody issue in favour of the mother and thereafter determined the mobility issue. Madam Justice Smith clarified:

[25]      This analysis does not create a "two-step" analysis as was undertaken by the trial judge. Nor does it change the conventional approach to determining custody on an initial application, which requires a balancing of all relevant factors, including a parent's proposed move with the child to a new community, in deciding what is in the child's best interests. Rather, in the context of an initial application, Nunweiler applied a "blended" analysis considering some of the factors identified in Gordon.

[47]         Madam Justice Smith went on to distill the analytical framework for the application of the Gordon considerations for an initial custody and relocation application as follows:

[27]      In considering the application of Gordon to an initial application for custody, Saunders J.A. modified the analysis by limiting the application of the Gordon factors to those relevant to an initial custody application where one parent proposes relocating. In so doing, the Court considered the following factors from Gordon as being relevant to an initial application:

(c) the desirability of maximizing contact between the child and both parents;

(d) the views of the child;

(e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;

(f) disruption to the child of a change in custody;

(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

[28]      In Nunweiler, the Court balanced those modified factors with other relevant considerations, including the trial judge's findings that it was in the child's best interest to spend most of her time with the mother who had been her primary caregiver, and the mother's lack of improper motive for wanting to relocate the child from the community in which the child's father resided. In the result, the Court concluded that the mother should have sole custody of the child without geographic restriction, but continue to share guardianship of the child with the father.

[48]         The jurisprudence from our Court of Appeal has affirmed the rejection of any legal presumption in favour of the status quo and underscored that presumptions are inappropriate in parenting disputes under the Divorce Act because they detract from the individual justice to which every child is entitled: Nunweiler, at para. 30; Hejzlar, at para. 26.

[49]         The only consideration is the best interests of the child whose future is at stake: Gordon, at para. 19. The “best interests” test endorsed by the Court in Gordon mandates a full and a sensitive inquiry: McArthur v. Brown, 2008 BCSC 1061 at para. 112 [McArthur]. The individualized inquiry must have regard to all the relevant circumstances relating to the particular child’s needs and the ability of the parents to satisfy those needs: McArthur, at para. 112; Gordon, at paras. 49-50. Ultimately, the Court must weigh all the negative repercussions for a child and the benefits to a child of a proposed relocation.

[50]         The Court in Gordon also stated that the maximum contact principle set out in the Divorce Act is a mandatory consideration but not an absolute one: at para. 24. A proposed relocation will not necessarily be denied solely on the basis that it will have the effect of reducing a parent’s parenting time with the child: at para. 25. As observed by the Court in McArthur, at para. 117, the fact that there will be reduced parenting time for the non-moving parent to see his or her children is an obvious outcome of relocation in the vast majority of cases. The focus of the Court must be on the consequences to the child of the reduced parental interaction which would result from the proposed relocation.

Analysis

[51]         The parties are joint custodial parents and joint guardians of J. The parties agree that joint guardianship and joint custody should continue.

[52]         In this case, the application for a review of parenting time was heard with the mother’s application to relocate. It is common ground that on this review of parenting time, the father need not establish a threshold finding of a material change of circumstances. Instead, as with a review of an earlier order for spousal support, the review is a hearing de novo and treated as an initial application: Morck v. Morck, 2013 BCCA 186 at paras. 16 and 17.

[53]         Based on governing authorities, I conclude that I must apply a blended analysis, similar to the approach endorsed by the Court of Appeal in Falvai, in deciding, in light of a potential relocation, what parenting arrangements are in J.’s best interests. This analysis requires me to balance all relevant factors, including the proposed move to the new community: K.W. v. L.H., 2018 BCCA 204 at para. 104.

[54]         In its assessment of the parenting arrangement that best serves a child’s interests, the Court must consider not only the time spent by each parent with a child but also the role each parent plays in the child’s life and each parent’s contribution as a caregiver: S.S.L. v. J.W.W., 2010 BCCA 55 at para. 32 [S.S.L.]. The amount of time a parent spends with a child is not to be given undue emphasis.

[55]         There is no question that, in this case, both parents dearly love their son. As an unfortunate result of the reality of their marital separation and divorce, his parents cannot agree what is in the best interests of J. and it falls to this Court to make this difficult decision.

[56]         I turn to consider the question that lies at the heart of this dispute: in all the circumstances, what parenting arrangement is in the best interests of J.? I set out below consideration of the pertinent Gordon factors as modified by Nunweiler and Falvai. The Court must balance the relevant factors in a way that is flexible and accommodates the reality of the parties’ circumstances. It is crucial that only J.’s best interests inform my determination of the best parenting arrangement. I have addressed the relationship between J. and each of his parents, as a relevant consideration in this case, as it informs the analysis of the desirability of maximizing contact between J. and both his parents.

The Relationship Between the Child and Each of His Parents

[57]         It is uncontroversial that J. has a strong bond and loving relationship with his mother. She has been a very committed parent who has consistently provided J. with a stable home environment. She demonstrated insight and sensitivity to his emotional needs. She has been primarily responsible for arranging J.’s schooling, his medical and dental appointments and his organized activities. Although both parties play a significant role in J.’s life, there is no question that the mother is fairly characterized as having been J.'s primary caregiver.

[58]         The father also provides J. with emotional support and he too has a strong bond and loving relationship with J. He plays a significant and essential role in J.’s life. The father is actively involved in J.’s schooling and J. has a regular evening routine at his and S.W.’s home. The father attends parent-teacher conferences and any significant medical appointments and surgeries. He has been involved in J.’s post-operative home care.

[59]         The mother raised concerns and criticisms of some of the father’s parenting behaviour. While on occasion, the father may not have behaved ideally as a parent, I find nothing turns on it. As the Court observed in McArthur at para. 2, few parents, including good ones, emerge from the intensive and critical scrutiny of the judicial microscope as being a perfect parent. The case at hand is no different.

[60]         I have not overlooked the fact that there was a period of time after separation during which the father was coping with some personal challenges. While there is no question that he has always loved J. dearly, there were times in the past that he was not in a position to provide J. with a stable home environment. I accept that he now drinks alcohol in moderation and his drinking habits do not negatively impact his parental duties. This is borne out by the fact that the mother is not seeking to restrict his parenting time because of any such alleged concerns.

[61]         The father's current circumstances are more settled. He has regular employment, a vehicle and has re-married. His new wife S.W., who testified at trial, has a positive and loving relationship with J. She persuasively recounted the encouraging and supportive environment she and the father promote for J. at their home. Together, they ensure during their evening routine that J. completes his homework and that he is provided with the necessities (such as payment for hot lunches or school activities) for the next day at school.

[62]         The father, who is working on reinstatement to the Jehovah’s Witnesses community attends a different Kingdom Hall than the mother. He has taken J. to the Kingdom Hall in Maple Ridge on many of the Sundays on which he has had parenting time. S.W. is planning to convert to the Jehovah’s Witnesses’ faith and currently attends events at the Kingdom Hall on a regular basis.

[63]         The subject of soccer and the father's views on it consumed considerable trial time. The father believes that, based on the tenets of the Jehovah's Witnesses’ faith, J. should not be participating in competitive sports. However, he does not wish to be seen as not supporting his son in an activity he clearly enjoys. The father described the moral dilemma this poses for him. The father, somewhat reluctantly, has attended some of J.'s more recent soccer games. However, on occasion, J. has missed Saturday soccer games when in his father’s care.

[64]         Importantly, the father and J. engage in a broad range of other outdoor activities together. The father described swimming at the local pool and at his home during the summer months, skateboarding, playing in the green space adjacent to their Maple Ridge home, and building forts. The evidence supports a finding that J. enjoys these shared activities.

[65]         There is a difference in the parties’ parenting styles. In my view, the broad range of outdoor activities J. engages in with his father are equally beneficial to J., at this stage in his life, as are his organized activities that his mother promotes.

[66]         On the totality of the evidence, overall, I find each of the parties to be a loving, committed, and capable parent to J.

The Views of the Child

[67]         The expressed views of the children are not determinative but rather provide “context in which to understand better the whole of the evidence that must be weighed”: S.Z. v. D.Z., 2015 BCSC 2157 at para. 103 [S.Z.], referencing Rupertus v. Rupertus, 2012 BCCA 426 at para. 13. I am also mindful that the Court must not confound the expressed wishes of a child with that child’s best interests.

[68]         As the Court observed in S.Z., the reliability of a child's expressed view may vary depending on a variety of factors. In citing L.E.G. v. A.G., 2002 BCSC 1455, the Court aptly observed:

[48]      The court can consider case specific factors that may affect the reliability of the information received. These could include factors such as the age, intelligence, and maturity of the child. It may also include a consideration of how "heated" the separation process and the litigation process have been and the ways in which the children have participated. It may include a consideration of whether the parents, or one of the parents, have influenced the children, consciously or otherwise.

[69]         In this case, the Court does not have the benefit of an independent assessment and report pursuant to s. 211 of the Family Law Act, S.B.C. 2011, c. 25 nor any views of the child report. The only evidence of J.’s views is provided by the parties and is therefore not objective. Accordingly, this evidence must be approached with particular caution.

[70]         J., who is nine years old and possesses the apparent maturity and intelligence commensurate with his age, has expressed to both parents that he would prefer not to move to Edmonton.

[71]         The mother candidly acknowledged that J. has conveyed to her that he would prefer to stay in the Lower Mainland because he would miss his school friends. However, she also stated that J. had friends in Edmonton and at one point that he had raised the possibility of living in Edmonton only in the winter.

[72]         According to the father, J. has told him that he wished he could spend more time with him. J. has also forcefully expressed to his father that he does not want to move to Edmonton because he enjoys his school, his friends, soccer, and sharing their outdoor adventures.

[73]         While J.’s expressed views are a factor to be considered in the overall assessment, in all the circumstances, this evidence should not be accorded significant weight.

The Mother's Reasons for Wanting to Relocate

[74]         Gordon expressly forbids the Court to take into account a parent’s reasons for moving, except in exceptional circumstances or where it is relevant to the parent’s ability to meet the needs of the child: at paras. 23, 49.

[75]         In T.K. v. R.J.H.A., 2015 BCCA 8 [T.K.], at para. 50, Madam Justice Smith observed that a restricted consideration of “the custodial parent’s reason for moving” only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child has proven to be “challenging in its application”. She went on clarify the extent to which a parent's reasons for moving may be considered:

[51]      In a variation application, there has been a pre-existing determination that one parent is best suited to satisfy the needs of the children (i.e., the custodial parent). In that circumstance, it is understandable that the “fresh inquiry” into the children’s best interests must be “based on the findings of the judge who made the previous order and evidence of the new circumstances” (Gordon v. Goertz at para. 49(3)). It follows that while there is no legal presumption in favour of the views of the custodial parent, his or her decision to live and work where he or she chooses is entitled to respect, barring an improper motive for the move or any other evidence that may reflect adversely on his or her parenting ability, because that custodial parent has previously been found to be the parent who is best able to provide for the children’s needs.

[52]      However, in the context of an initial custody and relocation application there has been no previous determination that one or the other parent is best able to meet the needs of the children. Accordingly, the modification of the test in Gordon v. Goertz, in my view, needs to include a modification of para. 49(7)(e). In an initial application, it seems to me that the reasons for a parent’s proposed move are relevant to the issue of whether the proposed move will meet the needs of the children or affect (positively or negatively) on that parent’s ability to meet the children’s needs. As the children’s best interests is the “only issue” in the blended analysis, all relevant circumstances that relate to the children’s needs and each parent’s ability to satisfy those needs must be considered.

[Emphasis added.]

[76]         The Court in T.K. summarized its analysis as follows:

[54]      In summary, there may be many legitimate and worthy personal reasons for a parent wanting to relocate or a parent wanting to remain in the children’s existing community, that are entitled to be respected. However, those reasons may also be relevant to the question of whether the proposed move meets the children’s needs and/or the parent’s ability to provide for those needs and therefore may be a necessary consideration with the other relevant evidence to determining the custodial arrangement that is in the best interests of the children.

[77]         I am satisfied that the mother’s reasons for moving are relevant in assessing whether the proposed move meets J.’s needs and/or the mother’s ability to provide for those needs.

[78]         The courts have repeatedly recognized that the economic prospects, financial security, career fulfillment, and emotional well-being of a parent are legitimate considerations in the assessment of the best interests of a child: S.S.L. at para. 33; D.S.B. v. D.A.C., 2005 BCSC 913 at para. 66; McArthur at para. 153. The potential positive effect on a child resulting from being cared for by a well-functioning, productive, and happy parent is a valid consideration in assessing the best interests of a child.

[79]         In this case, the mother’s reasons may be distilled as follows:

a)    she and J. will be closer to family members;

b)    she will enjoy improved economic prospects given the lower cost of living in Edmonton; and

c)     she has been offered employment in her sister’s business.

[80]         In this case, the mother's primary reason for the proposed relocation is for her and J. to be closer to their extended family. According to the mother, the recent death of her father has revived and underscored the importance of her family.

[81]         The mother's sister, J.C., who testified at trial, owns and operates a successful heavy equipment business in Edmonton that has recently expanded. The company currently has 28 employees. She described to the Court the family-oriented culture of their business. Two of J.C.'s adult children live in Edmonton. The mother has a close relationship with J.C. and her family. J. also has a loving relationship with his mother’s extended family.

[82]         K., who is J.C.’s daughter and therefore the mother’s niece, lives in the Lower Mainland. The evidence on the mother’s and J.’s relationship with her was not well-developed. The mother is estranged from her brother who lives in Calgary. J.’s maternal grandmother has homes in Creston, B.C. and in Arizona. J.’s relationship with his maternal grandmother is unlikely to be impacted by the proposed relocation.

[83]         J.'s paternal grandparents and aunt and her family also live in Edmonton. J.’s two cousins are close in age to him. When she is visiting Edmonton, the mother regularly arranges for J. to spend time with his paternal grandparents. By all accounts, the mother has fostered that relationship and she and the father’s family have an amicable relationship. The totality of evidence supports a finding that J. has a loving relationship with his paternal relatives who reside in Edmonton.

[84]         J.C. also described the close-knit Jehovah’s Witnesses community in Edmonton.

[85]         The mother also expressed the hope that her financial circumstances would improve if she moves to Edmonton because she contends that the cost of living there is lower. She maintains that her prospects for home ownership would be greater in Edmonton than if she stays in the Lower Mainland. She also stated that, as a consequence of the lower cost of living, she would be in a better position to save for J.'s university expenses.

[86]         The mother produced some evidence that her housing costs, at least for rental accommodation, would be lower in Edmonton. There was no cogent evidence that the other expenses necessary to maintain her and J.’s standard of living would be lower in Edmonton. In any case, the evidence falls short of establishing that she cannot meet her and J.'s reasonable expenses in B.C. or that the move is necessary to meet J.’s future needs.

[87]         The mother presented as a capable professional. The offer of employment she received from J.C.'s company would pay the equivalent salary to what she is currently earning in B.C. Her primary role would be that of a project manager, preparing bids and supervising the opening of a new location for the business. The mother may also assist J.C. with government relations. The evidence falls short of establishing that there would be significantly more opportunity for career advancement or that the mother would derive any significantly greater career satisfaction in Edmonton.

[88]         Finally, I note that the father submitted the primary reason for the mother's relocation proposal is "a back-door scheme to prevent a shared parenting schedule from occurring" and that she is "acting in bad faith". I reject this submission. The evidence does not establish any improper motive for the mother’s proposed move. The mother, for many years, shouldered the primary parenting responsibility for J. and I accept that she has acted throughout in good faith and in accordance with what she sincerely perceived to be in J.'s best interests. In recognizing the importance of J.’s relationship with his father and endeavouring to foster it as she has done, she has made an effort to protect and promote J.’s emotional well-being. The fact that she has never disclosed to J. that his father has been disfellowshipped fortifies my conclusion.

Disruption to the Child of a Change in Custody

[89]         The parties are joint custodial parents and there is no suggestion that this would change in a relocation scenario. However, a change in parenting time consequent on the proposed relocation is an important factor in the Court’s assessment of what is in J.’s best interests.

[90]         J. currently has regular parenting time with his father with whom he has a strong bond. J. has indicated that he wishes an increase in parenting time with his father.

[91]         While I accept that the mother would make an effort to be flexible and cooperative in facilitating the father's parenting time if she relocates to Edmonton with J. and the father remained in the Lower Mainland, the practical reality is that J.’s parenting time with his father would be significantly reduced. This would be very disruptive to J.

Disruption to Child Consequent on the Removal from Family, School and Community He has Come to Know

[92]         J. has lived in the Lower Mainland since he was three years old. It is uncontroversial that he is doing well at his present school and in his community. He has a full life with activities he is enjoying and he is attached to his circle of friends. J. attends both his parents’ respective Kingdom Halls. As I stated earlier, the totality of the evidence support a finding that he is a happy and well-adjusted child.

[93]         J. has a significant relationship with S.W. and her extended family who have similarly-aged children and who live in the Lower Mainland. They socialize regularly.

[94]         The team of various medical specialists that have treated J. over the years are all situated in the Lower Mainland. While there are no doubt capable physicians in Edmonton, it is reasonable to infer that there likely would be some benefit to J. from maintaining continuity and consistency in the treatment regime that was established in B.C.

[95]         The mother credibly testified that, based upon her inquiries, she has determined that there will be a suitable school, (although it does not offer a French Immersion program), doctor, and dentist for J. in Edmonton. J. will also be able to carry on his extracurricular activities such as soccer. It is likely that J. would eventually establish a new routine and new friendships in Edmonton.

[96]         All things considered, overall, I find this factor favours J. remaining in British Columbia.

The Desirability of Maximizing Contact Between J. and Both Parents

[97]         The assessment of a child’s best interests in a mobility application necessarily engages the “maximum contact” principle. It has been observed that proximity of parental homes will usually be in the best interests of children with two good parents: S.S.L. at para. 25. However, the authorities are clear that the maximum contact principle is not absolute and must yield to the overall best interests of the child, assessed within the context of the practical reality of the parents’ circumstances and lives, one aspect of which may involve relocation: Gordon, at para. 46.

[98]         In the context of a mobility application, it is fundamental that the court be clear about the scenarios that it is to assess and compare: McArthur, at para. 127. The appellate authorities caution that there are to be no presumptions in mobility applications. The existing residential arrangement must not be presumed to be the default location or the preferred option. That said, the Court must consider the parenting arrangements that exist at the time of the application in its evaluation of how the decision to move or not move would advance the best interests of a child: S.S.L., at para. 19; C.M.B. v. B.D.G., 2014 BCSC 780 at para. 104.

[99]         In S.S.L., the Court of Appeal outlined four alternate scenarios to assess the best interests of the child. The Court’s observations in Walker v. Maxwell, 2014 BCSC 2357, aff’d 2015 BCCA 282, are apt in this case:

[61]      At the end of the day, whether or not one undertakes an “all possible options” analysis to help weigh and assess the available evidence or whether one chooses to exclude irrational or unrealistic scenarios from the analysis, what is ultimately required is a fresh inquiry into the needs of the child and how, in the circumstances of this particular case, Emma’s health, psychological and emotional well-being can be protected and promoted to the greatest extent possible.

[100]     For completeness, I will undertake the “four scenario analysis”.

[101]     I note that the mother was clear in her testimony that she would not move to Edmonton in the event that this Court determines that it is in the best interests of J. to remain in the Lower Mainland. In submissions, the mother’s counsel did not advance the mother moving to Edmonton without J. as a viable option.

[102]     The appellate authorities have discouraged reliance by trial judges on an expression by a parent they would not move without the child because of the “double bind” in which a primary caregiver is put: Hejzlar, at para. 27.

[103]     In the first scenario, that being the mother relocating to Edmonton without J., the father would have primary residence. The mother would be able to accept a position in her sister’s business and she would be living in close proximity to her family. The substance of the father’s parenting plan, if the mother moved, was not highly developed on the evidence. This is likely because he was well aware of the mother’s testimony that she would remain in the Lower Mainland if J. is not permitted to relocate to Edmonton. In any case, the father indicated that he would make an effort to keep J. at his current school and to maintain J.’s contact with his friends in Port Coquitlam. However, it is not clear whether J. would be able to continue attending his school if he was residing in Maple Ridge. The father proposes that the mother would have the option of one monthly visit during the school year (arranged around long weekends) and that J. would spend one month each summer with his mother. They would divide winter and spring school breaks equally.

[104]     Such an arrangement, where J. resides primarily with his father, separate from his mother who has been his primary caregiver, would constitute a substantial shift in the parenting arrangement that J. has known. While, in all likelihood, the father would be a capable and committed parent in such a scenario, in my view, given the degree of separation from his mother that this option would entail, it has the potential for a negative emotional impact on J. There is also the possibility that J. would have to change schools which would cause him further disruption.

[105]     In the second scenario, where the mother and father both relocated to Edmonton, the current parenting regime (or one with an increase in the father's parenting time) could be continued. The mother maintains that this would be the ideal scenario for J. If he moved to Edmonton, J. would be able to spend time with both his mother and father and his extended family on a regular basis. Again, neither party devoted much attention to the specifics of this option, perhaps reflecting the reality of the father’s testimony that he is not willing to move to Edmonton.

[106]     The father maintained in final submissions that relocation to Edmonton is not a viable option for him. Although the father did not testify as to whether or not he would move to Edmonton if the Court permitted the relocation, the father clearly indicated in his testimony that he did not wish to relocate to Edmonton. The father candidly acknowledged that two of his former employers in Edmonton told him that they would consider offering him a position if there was an available opening. The father stressed, however, that he has established a new life in B.C. He and his new wife both have jobs in the Lower Mainland and his wife’s extended family are all in the Lower Mainland. Moreover, the father, since he has been disfellowshipped, has had little association with his sister and parents. If the father was residing in Edmonton, there is a greater risk that J. would come to learn about his father’s disfellowship and this likely would be detrimental to promoting a heathy relationship between J. and his father.

[107]     Given that in a mobility application the Court cannot order where a particular parent must reside, I do not view the father moving to Edmonton for shared parenting to be an objectively realistic scenario.

[108]     Under the third scenario, my inquiry into J.'s best interests must include a consideration of preserving the status quo wherein both parents reside in the Lower Mainland. Consideration of the current parenting arrangement is relevant to address how moving J. may or may not be in his best interests. The clear benefit of this scenario would permit the parties to continue implementing the current shared parenting regime or one with some increase in the father's parenting time. In my view, J.’s continued and regular contact with his father would promote his healthy emotional development. Furthermore, J.’s education and extracurricular activities would continue undisrupted. In all likelihood, J. would continue to visit Edmonton with his mother on a frequent basis and on those trips he would continue to be able to spend time with his extended family. The negative consequences would be the mother's profound disappointment in not being able to work in her sister's company and in not living in the same community as her extended family.

[109]     The final scenario for consideration is J. moving to Edmonton with his mother and spending holidays with his father. The mother would have an opportunity for a new employment and J. would be closer to his extended family on both his mother and father's side. The mother’s friend, E.L., who testified at trial and whose son is friendly with J., would provide before and after school care for J. in her home.

[110]     The obvious negative consequence of the relocation of J. would be the reduction of his parenting time with his father with whom he has a very strong bond. This could have potential long term and negative effects on J.’s emotional well-being. Although J. would eventually adjust to a new school, activities and friends in Edmonton, there would also be a significant disruption to J. consequent on his removal from his school, activities, and friends in the community in B.C. that he has come to know.

[111]     While the mother has offered to contribute, at least initially, to the various expenses the father will incur, it will be expensive, on a permanent basis, for the father to travel to Edmonton to see J. with any regularity. He likely would have to secure suitable accommodation when he visited given that currently he has very little association with his family.

Disposition

[112]     In determining the child’s best interests, the Court’s task is to take an objective view of the options, having regard to the “tangle of competing benefits and detriments” associated with a proposed relocation: Hejzlar, at para. 23. The Court must weigh a multitude of relevant factors in the best interest analysis: T.K., at para. 73.

[113]     In the final analysis, because mobility cases inevitably involve some degree of uncertainty of what might happen in the future, “[t]he judicial assessment of the best interests of a child amounts to an educated prediction” rather than the application of any proven truths: McArthur, at para. 161; Orring v. Orring, 2006 BCCA 523 at para. 55.

[114]     As set out above, I have considered what I anticipate will be J.’s circumstances if he moves to Edmonton and his circumstances if he remains in the Lower Mainland. J. and his mother, and J. and his father, each love each other dearly. If J. moves to Edmonton while his father remains in the Lower Mainland, J. will have less contact with his father who is a loving and capable parent. J. is well-established in the Lower Mainland. If J. moves to Edmonton, he will also suffer a significant disruption because of the removal from his school, friends, and community he has come to know.

[115]     On the totality of the evidence, I am not persuaded that the benefit of the increased time J. would have with his extended family in Edmonton and the potential for some indeterminate improvement in the mother’s economic circumstances and her consequent ability to provide for J. if a relocation was permitted, supersedes the importance of J. maintaining the strong bond with his father. I have considered the mother’s happiness and well-being in the assessment but I have concluded that this factor, while significant, does not outweigh the negative repercussions to J. associated with the proposed relocation to Edmonton.

[116]     I have concluded that the importance of maintaining J.’s strong bond with his father and the disruption that would result from the relocation, support J. remaining in the Lower Mainland. In summary, on the totality of the evidence and in balancing the competing benefits and detriments at play, I conclude J.'s best interests are best served if he remains in the Lower Mainland with a shared parenting regime. This arrangement protects to the greatest extent possible J.’s well-being.

[117]     The mother's application for an order that J. be permitted to relocate to Edmonton is dismissed.

[118]     I have also concluded that it is in J.’s best interests for his parenting time with his father to be increased. Although the father has demonstrated that he is a caring and competent parent, there are two primary impediments to implementing the equal parenting regime that he has advanced. The first is the practical reality of the commute and the early drop-off at day-care. The father lives in east Maple Ridge and the commute to J.’s school is 35 to 40 minutes. On his parenting time, the father drops J. off at daycare at approximately 7:15 a.m. and picks him up at approximately 4:00 p.m. In considering the commute both ways and the drop off and pick-up times, this makes for a very long day for J. when he is attending school. While I recognize that commutes and daycare are a reality of modern life, I am not persuaded that it would be in J.’s best interests to increase this from two to three days a week bi-monthly.

[119]     The second issue is the father’s stance on soccer which I accept is sincerely grounded in his religious beliefs. In all of the circumstances, I am not persuaded that it would be in J.'s best interests to make an order that his father be required to attend his soccer games during his parenting time. Neither party addressed the appropriateness of the Court making an order that potentially may infringe upon the father’s religious beliefs. In any case, it is inevitable that the father’s disapproval, unintentionally or otherwise, would be conveyed to J. It is in J.’s best interests that he be free to continue to enjoy his soccer games unencumbered by his father’s reservations on his participation.

[120]     All things considered, I have concluded that it would be in J.’s best interests to remain in the Lower Mainland with the father to have the following parenting time:

During soccer season when there is a game scheduled on Saturday: 

Week 1:        Monday - Pick-up after school or at daycare;

          Wednesday a.m. - Drop-off at school or at daycare;

Week 2:        Saturday - Pick-up at mother’s home after soccer game or pick up at soccer field after game or otherwise as agreed to;

                    Tuesday a.m. - Drop-off at school or daycare.

During the year-end soccer tournament, if there is a game on Sunday, J.’s parenting time on that weekend will be with his mother. The father will be entitled to compensatory parenting time if it falls on what would otherwise be his weekend parenting time.

Balance of the year when there is no soccer or when there is no soccer game scheduled on either Saturday or Sunday:

Week 1         Monday - Pick-up after school or at daycare;

                    Wednesday a.m. - Drop-off at school or daycare;

Week 2         Friday - Pick-up after school or daycare;

                    Tuesday a.m. - Drop-off at school or daycare.

[121]     On this schedule the mother continues to have primary residence. Despite the parenting schedule set out above, the parents would equally share the school winter and spring breaks as well as statutory holidays and professional development days. The summer school break will be shared equally and each parent will have two weeks of uninterrupted vacation time with J.

[122]     Neither party developed any submissions as to how holiday times would be scheduled or how pick-up and drop-off locations and times would be arranged when school is not in session. Commendably, the parties, for the most part, have been co-operative and flexible in scheduling parenting time. If the parties are unable to agree on matters relating to holiday scheduling, they have liberty to apply on a date they reserve through Supreme Court Scheduling.

[123]     The father has also indicated a willingness to assume some responsibility for arranging and scheduling some of J.’s medical, dental, and other appointments. I would encourage him to do so as having his father participating in all aspects of his life would undoubtedly serve J.’s best interests.

[124]     For clarity, paragraphs 2, 5 and 6 of the Final Order remain in force and effect.

Child Support

[125]     The parties agree on their respective Guideline incomes.

[126]     The parties shall share s. 7 special expenses in proportion to their respective Guideline incomes.

[127]     The payment of child support is to commence September 1, 2018.

[128]     Counsel have not had an opportunity to make submissions on the 40% threshold set out in s. 9 of the Guidelines as it applies to the parenting schedule I have ordered in these Reasons. If they are unable to agree on the payor and/or the quantum, they have leave to apply.

[129]     The parties are to exchange their income tax returns by May 31 each year and provide copies of assessments and reassessments within 21 days of receipt.

Costs

[130]     Finally, there is the matter of costs. In my view neither party was substantially successful in this application; success was divided. Each party shall bear their own costs.

[131]     If either party seeks a different costs award, they may reserve a date through Supreme Court Scheduling to address the issue.

“Dardi J.”