IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
A.P. v. J.C., |
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2018 BCSC 1381 |
Date: 20180816
Docket: 3813
Registry: Courtenay
Between:
A.P.
Claimant
And:
J.C.
Respondent
Before: The Honourable Mr. Justice Verhoeven
Reasons for Judgment
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Counsel for the Claimant: |
G. White |
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Counsel for the Respondent: |
S. Aldinger |
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Place and Date of Trial/Hearing: |
Courtenay, B.C. June 27-29, 2018 |
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Place and Date of Judgment: |
Courtenay, B.C. August 16, 2018 |
[1] The primary issue in this case is whether to allow the parties’ twin eight year old boys, T. and R., to relocate from Cumberland, BC, to Elora, Ontario, where their mother, the respondent, now resides. Their father, the claimant, resides in Cumberland. He applies for an order under s. 69(1) of the Family Law Act, S.B.C. 2011, c. 25 [FLA], prohibiting the relocation of the children. Their mother applies under the same section for the converse order, permitting the relocation. Both parties apply for ancillary orders that depend upon the relocation issue.
[2] The parties’ applications are both brought as summary trial applications under R. 11-3 of the Supreme Court Family Rules [the Rules]. The parties agree the matter is suitable for disposition using the summary trial procedure. There is a degree of urgency in the matter, as the children will be registered for school beginning in September 2018, in either Cumberland or Elora, depending on the outcome of the case.
[3] As these reasons for judgment are anonymized by use of initials, it is convenient for me to refer to the parties simply as the father and the mother.
[4] The father’s application was filed over a year ago, on July 13, 2017. The mother’s responding application was filed September 11, 2017. A two day summary trial application was scheduled to be heard October 4-5, 2017. As I understand it, when the matter came on for hearing Baird J. expressed concerns (validly, in my opinion) about the lack of an assessment pursuant to s. 211 of the FLA. The parties consented to an order appointing Dr. Michael Elterman as the court’s assessor. The hearing was adjourned for this purpose.
[5] Dr. Elterman prepared an assessment report dated March 20, 2018. I heard the summary trial applications over the course of three days in late June 2018, in Courtenay, BC. Neither party sought to cross-examine Dr. Elterman, or to examine or cross-examine witnesses viva voce. Both have provided voluminous materials and numerous affidavits.
[6] The father also applies, in effect, to strike out the portions of the s. 211 report in which Dr. Elterman makes recommendations regarding the relocation issue, and provides reasons for his recommendations.
[7] The father was born in Italy. He immigrated to Canada at age 10 with his family. His family settled in Victoria, where he was raised.
[8] The mother was raised in Ontario. The parties met in Toronto, Ontario, in June 1994. The father was 26, and the mother was 25. The mother was nearing completion of her training as a registered massage therapist (“RMT”), which she completed in August 1994. The father was living in Ontario at the time, working for Revenue Canada (now called Canada Revenue Agency). He became qualified as a professional accountant in 1994 while working for Revenue Canada in Toronto.
[9] The parties moved to Victoria. Soon thereafter the mother became pregnant with their first child, a daughter (“M.”), born in 1995. The parties were married in Victoria on September 3, 1995. Their second child, a son (“R.”), was born in Victoria in 1997.
[10] As these applications relate only to the two younger children, the twins born in 2010, in these reasons I will refer to them as the children or the twins.
[11] Rather than continuing to work as an accountant, the father began working in the family bakery business in Victoria, which had been established and operated by his parents since 1978, at or near the time the family arrived in Canada. The mother also worked in the bakery business and, to some extent, other businesses the parties developed.
[12] In 1995, the parties purchased a home from his parents, with their financial assistance. In 1999, they purchased the bakery and the bakery property from his parents, again with their financial assistance. Also in 1999, they purchased and moved to a five acre farm in Victoria, which they operated as a farm. In 2003, the parties opened and operated an Italian restaurant in Victoria next door to the bakery. They closed the restaurant in 2012. The mother stopped working in the bakery in approximately 2006.
[13] In 1998, the mother’s sister (“M.B.”) and her sister’s husband (“S.B.”) moved to Victoria. From 2001-2006, M.B. and S.B. operated a satellite bakery business in Sidney, BC, owned by the parties. M.B. and S.B. returned to Ontario in 2006. The Sidney bakery closed in 2008. M.B. and S.B. now reside in Elora. The mother’s mother resides with them.
[14] Pursuant to s. 37(4) of the FLA, a person’s conduct may only be considered if it substantially affects the best interests of a child in accordance with the factors set out in s. 37(2), and only to the extent it affects that factor. In this case, the mother contends that the father’s persistent infidelity and marijuana use during the relationship are relevant to the relocation issue. I will therefore provide an overview of these matters, in the context of some of the reasons for the eventual breakdown of the marriage. At this stage, I refer to these matters for background or context purposes only.
[15] In 2006, the father admitted infidelity. This led to a separation in 2007, lasting about six or eight months. The parties disagree as to the number and extent of extra-marital affairs the husband had been involved in prior to this, and after this. The father acknowledges one long-term relationship, with a part-time staff member of the bakery. The mother says he admitted to several sexual relationships. She names several females with whom he had relationships. He did not deny these allegations.
[16] In 2008, the parties reconciled temporarily. As a condition of reconciliation, the mother insisted that the father obtain treatment for his addictions to sex and marijuana. The father attended meetings for several months. The mother established and participated in a support group for family members of sex addicts.
[17] The mother says his extra-marital relationships and abuse of marijuana continued. The father admits that the one long-term relationship he acknowledged continued. The father states that he attended a 10 day meditation retreat in 2008 which was very helpful to him.
[18] In 2009, the mother became pregnant with the twins, who were born in February 2010. They are fraternal twins. The following month, the parties visited Cumberland, while visiting friends in the Comox Valley. They mutually decided to move to Cumberland, a small town, (officially an incorporated village). Cumberland is located near the larger towns of Courtenay and Comox.
[19] Their descriptions of their motivations for the move differ somewhat, but they agree that they hoped a move away from Victoria would help their marriage. They purchased a home in Cumberland, selling the home and farm in Victoria shortly after. The father continued to operate the bakery and restaurant in Victoria until 2012 when the restaurant closed. He continues to manage or oversee the management of the bakery.
[20] Problems in the marriage continued after the move to Cumberland. In September 2011, the husband of the woman with whom the father had a long-term affair called the mother on the telephone. The mother confronted the father with this.
[21] The father admits that the single extra-marital relationship he acknowledges had carried on. The mother demanded that the father participate in an addiction rehabilitation program or be divorced. The father attended a 40 day treatment program in late 2011.
[22] The parties separated again in October 2013, until some time in early 2014, then reconciled for some length or lengths of time (the details are vague), until separating for the final time on February 14, 2015.
[23] The father acknowledges marijuana use but states that he has not used marijuana since the parties separated and reconciled again in 2013. He submits he began using cannabis in 2000 for stress relief, and that the mother also used it for a period of several years. The mother acknowledges some past use of marijuana. The mother does not accept the father’s assertion that he no longer uses marijuana. She alleges that she observed the father exhibiting signs of marijuana use on two occasions since separation when she encountered him in public: in May 2015 and May 2016. As noted, the father denies using marijuana after 2013. His evidence that he no longer uses marijuana is not corroborated by other witnesses on his behalf. He refused to take a drug test.
[24] A few weeks after the parties’ final separation in February 2015, the father moved to a rented condominium at Mount Washington, where he resided until November 2015. Later he resided with a female friend (“L.T.”) at her home in Courtenay for two or three months. He then returned to Cumberland in February 2016, where he resided in one of the two apartments (a three bedroom suite) in a commercial and residential building (the “commercial building”) that the parties purchased in 2012, and which he retained in the property division. He continues to reside there.
[25] The Victoria bakery suffered a major fire in January 2014 that caused the business to close for repairs until March 17, 2015—about a month after the separation.
[26] During the initial period after the separation the children resided primarily with the mother, while the father was busy in Victoria during the work week with the re-opened bakery business. The children were with the father most weekends.
[27] With the aid of separate legal counsel the parties entered into a separation agreement in June 2016. The separation agreement provided: for joint guardianship; shared parenting responsibilities; a week on/week off parenting schedule commencing September 2016; and shared vacation times (all with reference to the FLA). The parties agreed to a division of their assets. The mother retained their Cumberland home and an adjacent vacant lot, and the father retained the commercial building, the Victoria bakery property and the bakery business.
[28] During negotiations for the separation agreement the mother had expressed a “desire and intention” (as she puts it) or a “possibility” (as he puts it) of moving to Ontario with the children. As a result, the parties included terms in the separation agreement relating to relocation. They incorporated the relocation provisions of the FLA into the agreement, in case either party wished to relocate with the children outside of the Comox Valley, as defined.
[29] In February 2017, the mother advised the father that she wished to move to Ontario. The father was opposed. The mother says she then considered relocation to other locations in or near Vancouver Island, such as Victoria, Duncan, or Quadra Island, “as a compromise.” She made an offer on a residence on Quadra Island. She did not complete the purchase, as an inspection revealed deficiencies. She says that in any event the father was opposed to the proposed relocation to Quadra Island, and she says she reverted to her original intention to move to Ontario. The father says the mother abandoned the Quadra Island purchase and the idea of relocating within the region before they had reached any final agreement about it. They agree the mother reverted to her Ontario relocation plan. The mother listed her house for sale, which sold quickly.
[30] The parties exchanged emails about the Ontario relocation plan on April 1, 2017. The mother confirmed her plan to relocate effective September 2017. They discussed continuation of equal time, shared parenting, on four month rotations. They did not reach an agreement. In an email sent June 12, 2017, the mother stated that she planned to relocate to Ontario with the children effective September 2017. She presented options of a either a four month rotation or primary residence with her in Ontario, and vacation times (summer, winter and spring breaks) with the father. As the parties reached no agreement, they retained legal counsel and the present applications ensued.
[31] The children were with the mother in Elora, Ontario during August 2017, where they resided with her sister, M.B., and her family. The parties agreed that the mother would return the children to Cumberland in September, and that they would remain resident with the father in Cumberland until the decision of the court, which they hoped would be made in October 2017.
[32] The mother purchased a home in Elora and moved into the home in September 2017.
[33] As noted previously, the court hearing scheduled for October 2017 was adjourned. Since September 2017, the children have resided primarily in Cumberland. They completed grade two there in June 2018. They were with the mother in Elora in her new home for three weeks in December 2017, and early January 2018, and at spring break in March and April 2018. I presume the parties have continued to share parenting over this 2018 summer as they did in 2016 and 2017, where the children were with the father for July and with the mother for August.
[34] When the parties separated the mother had been in the process of training to become a yoga instructor, and was working as a yoga instructor, out of the commercial building. She did not continue with her yoga training and business as she considered it non-viable. She then studied hypnotherapy from September 2015 to June 2016, and began establishing a practice in BC. She has continued to attempt to establish a hypnotherapy practice in Elora since moving there in September 2017.
[35] The parties agree that the matter is suitable for disposition on the basis of a summary trial under R. 11-3 of the Rules. They both contend that there are no fundamental factual conflicts in the evidence presented by the parties. Their positions are also driven by practical considerations of economy and delay. At the hearing I was advised that a conventional trial would not likely be heard for another year. Particularly in view of the fact that a year has already gone by, any further significant delay in the decision would clearly be unacceptable.
[36] Although there are several points of disagreement between the parties concerning the evidence of each other, including the issues they take with some of each other’s statements to Dr. Elterman, having now fully reviewed all of the affidavit evidence and the report in the course of my deliberations, in my view, I am able to find the facts necessary to make the decision, and it would not be unjust to decide the case on the basis of the evidence before me. In general, the disagreements are not fundamental to my decision. For example, although the mother criticizes the father’s parenting in some instances, she agrees that he is a capable parent in overall terms.
[37] Without the benefit of the s. 211 report, I would not likely have come to the same conclusion.
[38] In my view, in most relocation cases a conventional trial in which the court has the benefit of hearing directly from the parties is preferable. A possible alternative might be a hybrid trial where the parties testify viva voce, and collateral witnesses provide evidence in affidavit form, subject to cross-examination. I agree with the comments to this effect of Skolrood J. in B.M.G. v. S.J.S., 2018 BCSC 967, at paras. 5-15. There, Skolrood J. references the Court of Appeal on this topic of summary trials in relocation cases in Hellberg v. Netherclift, 2017 BCCA 363, at para. 100.
[39] In the circumstances of this case, the need for a prompt decision outweighs the advantages and general desirability of a conventional trial. The children need to be enrolled for grade three before the school year starts next month. A mid-school year relocation should be avoided if possible.
[40] Section 69 of the FLA is as follows:
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;
(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.
[41] Section 37 is as follows:
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.
[42] Prior to the mother’s move, and at the time these applications were filed with the court, the parties had substantially equal parenting time with the children. The parties agree that s. 69(5) of the FLA applies. The father relies on the onus provisions of that section.
[43] However, the case law under s. 69 establishes that the focus of the analysis must be on the question of the best interests of the child. Therefore the analysis does not end with the issues, factors, onus or presumptions (the legislation is inconsistent as to this) set out in ss. 69(4)-(6). The factors or issues set out in these subsections may be relevant to the overall best interests of the child analysis: L.J.R. v. S.W.R., 2013 BCSC 1344, at paras. 76-81; Hadjioannou v. Hadjioannou, 2013 BCSC 1682; A.J.D. v. E.A.E., 2013 BCSC 2160; C.M.B. v. B.D.G., 2014 BCSC 780; Hefter v. Hefter, 2016 BCSC 1504, at para. 40; LeMasurier v. Parsons, 2017 BCSC 1536. Moreover, some of the factors or issues set out in ss. 69(4)-(6) overlap with the question of the best interests of the child in s. 69(4)(a)(ii).
[44] As a result, I will assess the question of whether the proposed relocation is in the best interests of the children, in all of the circumstances. The issues and factors set out in ss. 69(4)-(6) will also be considered.
[45] As the court’s assessor under s. 211, Dr. Elterman has had the advantage of interviewing the parties, the children and collateral sources (several of whom did not provide affidavit evidence). His report is thorough. Dr. Elterman had available to him all of the same affidavits that the parties relied upon before me, except of course for affidavits sworn subsequently.
[46] The facts set out in the s. 211 report are prima facie evidence of the truth of those facts: K.M.W. v. L.J.W., 2010 BCCA 572, at para. 50 (in relation to the predecessor legislation, s. 15 of the Family Relations Act, R.S.B.C. 1996, c. 128 [FRA]); L.D.K. v. M.A.K., 2015 BCSC 226, at para. 50 (applying the same principle to s. 211 of the FLA.) As noted, neither party sought to cross-examine Dr. Elterman. Neither party has major disagreements with the basic facts as set out in Dr. Elterman’s report. Understandably each party takes issue with some of the statements made by the other to Dr. Elterman, as set out in his report. Naturally the father disagrees with Dr. Elterman’s overall opinion that the children’s interests are best served by residing primarily with the mother.
[47] A summary of some of the more pertinent points arising from Dr. Elterman’s report is as follows:
a) The mother states that the best arrangement for the children is that they have their primary residence with her, in Elora. The children would then be with the father in Cumberland for the summer, Christmas and spring break. He notes that the father believes the best arrangement is the opposite; that is, the children reside with him during the school year and see their mother during spring break, Christmas and summer;
b) These are the only two scenarios considered by Dr. Elterman. Dr. Elterman did not consider the other potential scenarios involving either parent moving to the other location, depending on the court’s decision. It seems clear that he was given no information to suggest that these other scenarios were viable.
c) In addition to the interviews, Dr. Elterman administered personality tests of the parents.
d) Dr. Elterman describes the mother as follows:
[The mother] presented as a focused, mature individual who has a clear set of priorities and boundaries for herself. The personality testing, while defensive, shows someone with a high activity level and concern about physical functioning. She has a very positive sense of self-esteem and a high appraisal of her own personal skills. She is someone who is organized but also has a need to maintain control of the situation around herself.
e) Dr. Elterman describes the father as follows:
[The father] presented as a relaxed, attentive, gregarious, alert man. … The personality testing for [the father], while defensive, suggests that he acknowledges a history of drug use which has been a source of problem in some sphere[s] of his life. While being a social individual at the same time he tends to be fairly private and closed in terms of sharing.
f) He interviewed the children twice; once in Cumberland at the father’s home, and a second time in Elora at the mother’s home. The children were approximately seven years, ten months of age when interviewed. The Cumberland interviews occurred November 30, 2017, when the children had been residing in Cumberland with their father since early September. However, their mother had parenting time with them in the Comox Valley from September 25 to October 9, 2017. The children were in Elora from December 12, 2017 until January 3, 2018. The Elora interviews took place December 14, 2017. Some of their comments were:
a) When interviewed in Cumberland, T. said that his dad is busy, and he was “kind of unhappy” not seeing his mom as much as his dad, and wished it could be equal time (“50-50”) with each parent. He said that his mother has more time for them. When in Elora, he reiterated that he wished the time could be equal. He liked being at both houses. He liked being in Elora because he missed his mom and there was more to do in Elora. His best friend is his brother.
b) In Cumberland, R. said he wished his time with his parents could be equal (“50-50”). He said that the amount he saw his mom was too little. In Elora, he said he was unhappy they could not do equal time. He said that he could be just as happy living with dad or mom. He said that in Elora, he misses his friends. He speaks positively about both parents but tends to refer to non-emotional issues when speaking about the parents. He talks about games and toys when speaking about both parents. He seems equally emotionally dependent on both parents.
c) In his concluding comments Dr. Elterman states that when in Elora, the children said to him that they would prefer to be with their mother. This comment is at odds with their comments that they wished the time with their parents could be equal, and R.’s comment that he would be just as happy living with dad or mom. Given their age, it is not surprising that their comments might be somewhat inconsistent and ambiguous. However, despite that consideration, my interpretation of their remarks is that they do have some degree of preference for time with their mother, in the sense that while they both say they want “50-50” (an odd expression for seven year old children in my view), they could be unhappy if their time with their mother is less than the time with their father, while there is less likelihood of the opposite being true.
g) Both parents have strong, healthy and loving relationships with the children.
d) Regarding the father, Dr. Elterman observed:
[the father] seems to have a fun, upbeat relationship with the children and they clearly respect and enjoy his company. He is present, alert and interested in them and he listens with keenness while they are talking. The boys seem to play well together and will disappear for periods of time to do an activity together. They seem to have an active life with [the father] to the extent that they talked about soccer and going cycling the day before. He is clearly an authority with them and when he speaks they listen. He tends to direct them rather than ask questions. Child management was not an issue because the boys were well behaved and did not push at limits. I had no concerns about the attachment that [the father] has with the boys or that they have with him.
e) Regarding the mother, Dr. Elterman observed:
The children were happy, animate and full of energy when they came back from being out in the morning. They seem to have already developed some favourite activities and spoke about spending time with family during that week. The children were affectionate, attentive and smiled broadly with [the mother]. She similarly was respectful and smiled more around the boys than I had seen her previously when interviewed alone. The boys, despite their absence, have a comfortable, familiar and close relationship with [the mother]. Their different personalities come through in both homes and neither child dominated the other. At [the mother’s home] the boys did not act out at all and were quite attentive and cooperative towards her. Compared to [the father], she asked more questions and spoke in a more respectful, tentative manner to them rather than how I had described him. The boys responded to both types of approach. I thought that the attachment that the boys have with their mother was strong and she also is closely bonded to them.
h) Dr. Elterman noted that the collateral references largely lined up behind each of the parents, and described the parents as devoted and skilled in relation to looking after the children, although they each have different parenting styles.
i) He noted that both of the parties’ older children (M. (age 22) and R. (age 21)) favoured their mother because they felt that her empathy and support for them was consistent and as a parent she was more respectful of their individuality. They both perceive that the boys will be better off in Elora with the mother.
j) Dr. Elterman was very complimentary of both parents, saying:
In this case what I have found are two very good parents who probably would occupy the top 25% of all of the cases that I have assessed over the past 36 years. [i.e., over 3,000 cases]. There is little question that they both love the children and want what is very best for them. They both put importance on raising the children as a life activity and both are willing to make personal sacrifices to this end. Under normal circumstances this would have been an excellent combination of two parents who would cooperate and co-parent the two children. Both parents can provide for the children's physical and emotional needs.
k) In concluding remarks, Dr. Elterman states that it is a difficult case, as both parties are excellent parents. He states:
This is a case where, frankly, the recommendation about where the children should reside, is not head-and- shoulders where one home is significantly better than the other. They both have advantages and disadvantages.
l) While stating that the strengths of one scenario over the other are not overwhelming, on balance, he recommends that the children reside primarily with the mother, in Elora. He states:
The reason for this is that I think that in terms of continuity from the past, that the children associate her more with their day-to-day care. I also perceive that they feel psychologically closer to her than to [the father], If one looks at the older children and what they have said, I think that there is more likelihood of the boys having conflict with [the father] as they get older and want more independence and express stronger opinions. I believe that [the mother] will be better able to balance her work and parental responsibilities as she is an organized person, While there are not many family members in Elora, they appear to live around the town and there seems to be a network of family who see each other quite often. The advantages at [the father] are that he as the male parent, is someone that the children can model and he is someone who can promote an active lifestyle and emphasize outdoor activities. He is an ambitious person and I have some concern that as time passes, he will increasingly busy himself with work and that the lifestyle of having his days spent around the boys will slowly chip away.
[48] Dr. Elterman recommends that the children have parenting time with the father in BC for six weeks in summer, ten days at Christmas break, and two weeks at spring break. The father could also see the children if there is a long weekend, on prior notice to the mother, either in Cumberland or Ontario. This is similar to the mother’s proposal. The result is that the children would be with the father in BC for nine to ten weeks of the year exclusively during vacations. The mother’s parenting is almost exclusively when the children are in school, other than weekends and two weeks in the summer.
[49] The peculiar reference in the comments of the children to “50-50” parenting probably reflects discussions they have had with one or both parents. I draw no particular inference or conclusion about this.
[50] Section 37(1) of the FLA provides that the parties and the court must consider the best interests of the child only. Section 37(2) provides factors that must be considered, in addition to the specific needs and circumstances of the child, when determining the child’s best interests. In this case there is no history or indication of any concern about family violence, therefore of the enumerated factors in s. 37(2), only subparagraphs (a)-(f) are relevant. They read:
(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;
[51] To this list I would add, in keeping with the opening words of s. 37(2),
(g) Other considerations.
[52] Before turning to these factors specifically, I will set out my reasons in a more general way.
[53] There is no suggestion by either party that other scenarios, such as either parent relocating to the other’s location, needs to be considered by me. I have considered the two alternatives presented by the parties on their applications. If either party were to choose to relocate, then there is no reason to think that some co-parenting arrangement could not be implemented, perhaps in line with the separation agreement terms.
[54] This is not a case where the decision lies overwhelmingly on one side or the other. Both parties are very capable parents, who love their children and want what is best for them. They are both mature, rational, sensible people. The parties communicate very well with each other. As an example of this, when the children have been in the other’s care during the past year (approximately), each has taken the trouble to write to the other with regular, weekly detailed summaries about the children’s activities and general status or well-being. They each facilitate distance communications with the other parent, e.g. Skype and telephone. Both parents work to foster and support the relationship between the children and the other parent. The children are both strongly bonded to each parent.
[55] Although the children would likely thrive in either scenario, my task is to decide which is to their greatest benefit, and therefore in their best interests, both in the short and long term.
[56] A major question is this: with which parent should the children reside during the parts of the year when school is in session, and with which parent should they spend the majority of their vacation time? This question necessarily affects a related question: which parent is best suited to perform the resulting roles that this decision will cause? Another related question is: which schedule will enable the parties to fulfill their own lives in a way which most benefits the children?
[57] In my view, the best interests of the children lies essentially with the parenting plan and schedule advanced by the mother, and as recommended by Dr. Elterman.
[58] On the basis of the large body of evidence presented, the children would benefit most by having the mother fulfill the day to day and school year roles, while the father fulfills the complimentary role as, largely, the vacation parent. This allocation of responsibilities best plays to the strengths of each parent.
[59] The mother is a very stable, calm and organized person who is well suited to the every day and school year roles. This is not to say that the father does not have similar capabilities. The father takes a degree of umbrage with Dr. Elterman’s comment that the mother “will be better able to balance her work and parental responsibilities as she is an organized person”. The father contends that he has a demonstrated ability to balance competing responsibilities. I do not interpret Dr. Elterman as saying that the father is not “an organized person” or that he is incapable of balancing responsibilities. The question is which parent is and will be better able to balance their work and parental responsibilities during the school year. In this respect, I accept the view of Dr. Elterman that the mother is best able to do this.
[60] The father is clearly capable and well positioned to fulfill the complementary role. He is a very active person. The children benefit from the types of active outdoor activities he enjoys, such as walks or hikes in the nearby natural surroundings of Cumberland, skiing, and sports. Dr. Elterman makes a similar point, in saying that an advantage on the father’s side is that “as the male parent, [he] is someone that the children can model and he is someone who can promote an active lifestyle and emphasize outdoor activities.” It is notable that this is the only “advantage” to the father that Dr. Elterman refers to within his recommendations.
[61] The children’s parenting time with the father should be rich. This should help ensure that their bond with him remains strong, while providing them with the full benefit of the time they spend in his primary care.
[62] In January 2017, the father purchased a cabin at Forbidden Plateau. He emphasizes the outdoor activities available to the children in Cumberland and in the surrounding area. These sorts of activities can continue when the father has parenting time, unimpeded by school demands.
[63] The father coaches the twins in soccer—a passion of his. I infer that this will not continue if the children reside primarily in Ontario, as according to the mother’s evidence, soccer takes place in the spring and fall each year. This is a loss. However, this might have ended at some point anyway, for any number of reasons. The children have organized sports options in Ontario, and the mother and the children’s aunt and uncle (M.B. and S.B.) are supportive. M.B. and S.B. are each involved in several capacities as volunteers in local youth hockey, soccer and volleyball organizations. Both coach youth soccer teams and work for the local school board. They are clearly well established in their community.
[64] In their interviews with Dr. Elterman the children noted that their father was busy. T. said he could improve as a parent by spending more time with them. Their sister M. corroborates this. She has had the opportunity to observe this. She resided in the other apartment in the commercial building until April 2018 when she moved to Elora to reside with the mother. When she was interviewed by Dr. Elterman she was still residing in Cumberland, and was attending North Island College in Courtenay. She stated that the father wants the children to be with him, but doesn’t have time for it. She added that her mother is sweet and supportive. She stated that her brothers are calmer with her mother and more aggressive with her dad. She felt that the children are better off with their mother because she is more emotionally available.
[65] The children’s brother R. lives in Ottawa where he began attending the University of Ottawa in September 2017. Initially he considered studying at the University of Victoria but when the mother announced her plans to move to Ontario, he enrolled at the University of Ottawa. He sees his mother often. He also thought the children would be better off in Ontario with the mother. He commented that his mother is supportive, and is in a good situation with her family in the area. He commented that his father is an outdoors guy, plays soccer and has an active lifestyle. His mother was more likely to say, “Let's do art.” He says that his dad is also a good parent and wants what is best for them. His mother is not as directive with the children about activities.
[66] I recognize that the opinions of the older siblings should be treated with some caution. Dr. Elterman noted that M. “…came across as angry and having a number of unresolved issues with her father.” The opinions of both siblings is necessarily shaped by their own experiences being raised by the parties at an earlier time in their lives. Nevertheless, in my view their observations and perceptions should be given some weight. As adults recently parented by the parties, they are uniquely situated to provide insight. Dr. Elterman’s report indicates that he placed some weight on their perceptions.
[67] Dr. Elterman is concerned that the father is an ambitious person, and that over time, when this case is over, his pursuit of his career ambitions would eventually lead to erosion of his parenting time and responsibilities. I share this concern.
[68] In addition, whether or not the foregoing concern is valid, it is in the best interests of the children that the father be able to focus more fully on his career and business opportunities. He is a qualified professional accountant by training. He has demonstrable business and occupational skills. In recent years, and particularly since the separation and then the mother’s move to Ontario, he has not been able to focus on his career. It seems he has deliberately limited his career activities in order to devote more time to parenting. He emphasizes that he has been able to manage the Victoria bakery largely remotely (i.e. from Cumberland) with the aid of a very competent manager in Victoria. He told Dr. Elterman that the bakery runs without him and that he can devote his time to the boys. In 2017, he was offering cooking classes in Cumberland and in Courtenay. He has discontinued this. From 2013-2017 he worked on call with the Village of Cumberland as an accounting clerk. That work has ended, too. It seems he is now working only part-time.
[69] The father states that when the parties moved to Cumberland in 2010 they planned to sell the bakery business. He states that when they bought the commercial building in 2012 the goal was to sell the Victoria businesses and to establish a business in the Comox Valley. His initial (July 2017) affidavit stated that he continued to plan to sell the bakery but needed three years of financial statements post-fire to be in a position to sell it. His recent affidavit (June 2018) indicates his decision about selling the bakery depends “in part” on the decision of the court. This comment is not further explained. The mother is somewhat skeptical that he will actually sell the bakery. Her skepticism is justified. The delay in selling the bakery is notable, even considering the fire and the time needed to re-establish the business. It has been family operated since 1978, and he may simply be reluctant to let it go. The bakery continues to provide a large portion of the father’s income. After more than eight years he has not established the Comox Valley business he says was the initial goal.
[70] The father’s income is modest, considering his training, talents, and age (50). This is a time in life when most people who can do so are endeavouring to build assets. On the evidence I am satisfied that the father has the capacity to earn a larger income if he were to focus on his career.
[71] The June 2016 separation agreement states that his income for support purposes is $40,000. His 2016 income was about $43,000. His 2017 income was $44,800, of which $20,800 was an RRSP withdrawal. Currently he states that his three sources of income are the bakery operations, and rental income from the bakery and the commercial building. The precise details of this are somewhat unclear. I note that he also states that the commercial building operates at a loss. In any event, while it appears that presently the father’s income is (surprisingly) adequate to support the current lifestyle of himself and the children, it is in their long term interests that the father focus on his career in order to earn a larger income. For example, his current income levels would not likely support any post secondary education expenses for two children.
[72] The father argues that the mother has not established that her move to Ontario would be beneficial to her career or was truly motivated by career needs. He relies on this point to argue that her wish to relocate the children to Ontario is not in good faith.
[73] As noted, the mother was trained as an RMT. She practiced in that field only briefly, before moving to BC in late 1994. She worked in the bakery at times until 2006. She was also involved in some capacity in the farm and the restaurant.
[74] In 2014, she attempted to establish a business in Cumberland as a yoga instructor in the commercial building. The business achieved some success but took up much time and was uneconomic. The mother obtained training and qualified as a hypnotherapist in August 2016. She was not able to establish a prosperous practice in the Comox Valley. She submits the population base of the Comox Valley was insufficient to develop a full business for her services, particularly since her instructor already had an established practice there. She contends that her business is more likely to thrive in Southern Ontario. Elora itself is a small community of 7,700 persons but the much larger centres of Guelph and Kitchener-Waterloo are nearby. The population in the area that her business could serve is several times that of the Comox Valley. In her updated affidavit sworn June 2018, she states that she is continuing to build her business in Ontario but growth has been slow, although she remains confident. She acknowledges that her earnings have been no higher than they were in BC. Her 2016 net business income was $1,737.97. This was earned from the yoga studio, a few massage therapy sessions, and the hypnotherapy practice. She is drawing on her savings from the sale of her home in BC.
[75] The mother’s contention that her business has a better chance of succeeding in Elora than BC is plausible. I can safely infer that hypnotherapy is a niche business. A larger population base to draw from would be an advantage.
[76] However, in contrast to the father’s situation, the mother may have difficulty establishing a successful career, or earning a substantial income. This might have been the case in either location. Should the mother’s career flounder, it is all the more reason why the father needs to maximize his income earning capacity, for the benefit of the children.
[77] Each party emphasizes the advantages of the community in which they live. There is no denying the various advantages they describe. There are other advantages and disadvantages of each community, no doubt.
[78] The father describes the natural surroundings of Cumberland and nearby recreational opportunities, and the advantages of living in a small village. He notes that Cumberland has skiing available nearby at Mt. Washington, mountains, lakes, and ocean and that he has a cabin nearby at Forbidden Plateau.
[79] Elora is also small town, although bigger than Cumberland. The mother notes that her new home in Elora is located in a pleasant residential area near the town’s old downtown core, and that she and the children are able to walk and bicycle for most errands and socializing. Her home is located near the Elora Gorge Conservation Area, the Elora/Cataract trail, and a notable popular park. M.B., S.B. and their two teenage children live nearby. The mother’s mother resides with them. M.B. provides enthusiastic detail about the community, including recreational opportunities and schools. Dr. Elterman visited both homes and found them both suitable. Clearly both communities offer good schools, and ample recreational opportunities. In the end, I am sure both communities are more than suitable, so this is a neutral factor.
[80] The presence of extended family favours Ontario. The father has no immediate family members in Cumberland. His mother and a sister reside in Victoria. Unfortunately his father has Alzheimer’s disease and is in a care home. He states that he and the children visit his sister (“M.P.”), her husband and their daughter (aged 16) in Victoria at least monthly. They enjoy family meals and holiday together. His other sister (“I.P.”) resides in North Vancouver, with her husband and two children, a daughter (aged eight) and a son (aged six). Thus, these cousins are close in age to the children. He states that the children and these cousins enjoy seeing each other at holiday times and when the father takes the children to the Lower Mainland. I.P. states that she sees the father approximately once per month, usually with the children. She states that she and her two siblings are all very close to their mother in Victoria. She states that in 2016 and 2017, her family and the father and the children holidayed together during the summer. M.P. and the father’s mother have also provided affidavits supporting the father’s position and attesting to his parenting skills and devotion to the children. As the father’s immediate family members do not reside in Cumberland, the detrimental effects upon the relationships of the children with them can be limited, as the children will still have ample opportunity to spend time with them in BC.
[81] In addition to her own mother, M.B. and S.B., the mother has four brothers, who all reside in southern Ontario. The mother sees her brothers J.C. and D.C. and their families regularly. J.C. lives in nearby Guelph and has two adult children. D.C. and his family are an hour away in Cookstown. He and his wife have two children, aged ten and nine. She sees her other two brothers, C.C. and G.C., much less often. They each have two children. C.C.’s children are adults residing in Toronto. G.C. has daughters aged 17 and 13. She sees these family members mainly on special occasions.
[82] Their brother R. resides in Ottawa. If the children reside primarily in Ontario they will have plenty of opportunities to maintain contacts with their large extended family residing there, even though they will have limited availability during vacations.
[83] The father’s previous adulterous relationships are not relevant per se, but in assessing the issue of which parent is better suited to which role in future, his admitted addictions to sex and marijuana are relevant. A related consideration has to do with the relationships the parties have had. Prior to the final separation the father had a number of significant extra-marital relationships. Since separation he has had four relationships with different women. L.T., a former relationship partner, provided an affidavit attesting to the quality of the father’s parenting. (The affidavit includes much inadmissible argument, which I have ignored, as I have ignored all of the inadmissible material appearing in the affidavits of both parties.) Another former partner, H.M., also provided a supportive affidavit. Another person, A.O., provided supportive collateral information to Dr. Elterman. At times the father left the children in the care of H.M. and A.O., and I infer, L.T. By contrast, the mother has had one relationship since separation, which has ended.
[84] The father swears he no longer uses marijuana, and has not used it for several years. He refused to submit to a drug test, for reasons that are unpersuasive. The mother admits that she joined the father in using marijuana at times, long ago. Her evidence about the limited extent of her own marijuana use is persuasive. She has not suffered from any identified addictions.
[85] These facts suggest that the father’s personality is less stable and resilient than the mother, which suggests to me that the children would benefit from residing primarily with the mother. Dr. Elterman noted that his history of interpersonal relationships and drug use may have been a method of managing stress. Also, if the father continues to have unsteady or short term relationships with different women, (and this has obviously been the pattern in his life so far, including the marriage of course), then the children would be better off residing primarily with the mother.
[86] Conduct by a parent such as drug use and extra-marital affairs may be relevant to the analysis of the best interests of the child, if that conduct substantially affects a factor set out in s. 37(2): FLA s. 37(4); M.S. v. T.K., 2017 BCSC 1550; Van de Perre v. Edwards, 2001 SCC 60 [Van de Perre], at paras. 23-33, aff’d K.V.P. v. T.E., [1999] B.C.J. No. 434 (S.C.). The father’s conduct affects the father’s ability to exercise parenting responsibilities: s. 37(2)(f). In this case it is a factor tipping the balance towards the mother’s school year care and hence her location.
[87] I emphasize that my comments regarding the father’s relationships and marijuana use are not meant to imply any kind of moral judgment or blameworthiness. In fact the father’s recognition of these concerns and undergoing treatment is laudable. The case is not about judging either parent in any such sense.
[88] The father argues that the mother has a history of change and lack of perseverance, for example by closing the yoga business, and becoming a hypnotherapy practitioner in the Comox Valley, before moving to Ontario. He relies on the fact that she briefly contemplated moving to Quadra Island and practicing hypnotherapy in nearby Campbell River. The implication is that her behaviour has been erratic. I do not agree with this characterization. The mother has not worked independently in the workforce since before the marriage. She certainly persevered in the marriage, despite the challenges. It is not surprising that when the marriage finally ended she would have difficulty and would take some time adjusting, both personally and occupationally. She seems to be coping reasonably well in difficult circumstances.
[89] A further factor favouring Ontario is the perception of Dr. Elterman that the children “associate [the mother] more with their day to day care” and that they are “psychologically closer to her than to [the father]. In his opinion, these considerations favour Ontario. I accept Dr. Elterman’s expertise and perception about this. Dr. Elterman is a highly regarded expert in this field. He has vast experience. He has appeared before me in person on at least one other occasion, and I consider his insights valuable. His perception supports the children’s perhaps ambiguous comments to him that they would prefer to live with their mother.
[90] Inevitably, a move to Ontario will entail considerable disruption in the children’s lives. It is axiomatic that if avoidance of disruption were the only consideration, relocation of children would almost never be permitted. Upon relocation, the children’s relationship with both parents will be affected in various ways. It is not necessarily the case that their relationship with their father will deteriorate. As the vacation parent, it may even improve.
[91] The children will move to a new home in a new community. However, they have some familiarity with Elora and will be residing with their mother and sister, and with each other. They will see other familiar family members. Their aunt and uncle in Elora and their cousins state they are committed to helping with the adjustment. At eight years of age, they should be well able to adapt to the change. There is no suggestion on the evidence that either of them would have any special or unusual difficulty overcoming the change. They will make new friends, and if the father continues to reside in Cumberland, they may be able to maintain contacts with their current friends. Both children told Dr. Elterman that they find it easy to make friends. Both children participate in group sports and other activities where they will have opportunities to make new friends, in addition to new school friends.
[92] The parties disagree about the extent of the father’s involvement with the care of the children prior to separation. The mother was their primary caregiver from their birth in 2010 until separation in 2015, as the father was working. The mother contends that the father spent much of his “home time” in other activities, not involving the children. The disagreement is only about the extent of his involvement. The mother agrees that he was always an involved father, but not to the extent that he states. It is not necessary to resolve this question. In this case, “the history of the child's care” is not a significant factor. Parenting time was shared equally from June 2016 until September 2017. Since then the children have primarily been with the father while this decision has been pending. The children are bonded to both parents.
[93] In relation to some of the enumerated factors listed in s. 37(2), additional comments are as follows:
a) the child's health and emotional well-being: there are no particular health issues relevant to the relocation issue. The children are healthy. They will receive appropriate health care as needed in either location. The more general aspects of their health such as sports, recreation, or living arrangements are also generally neutral. “Emotional well-being” is a very broad term that may encompass many things. Dr. Elterman’s report suggests that the children associate more with their mother in terms of their day to day care and that they are psychologically closer to her than to the father. I have accepted this. This and other factors that I have referred to suggest to me that ultimately the children will be happier residing in Elora with their mother during the school year and largely residing with their father during vacation times than the converse;
b) the child's views, unless it would be inappropriate to consider them: this has already been canvassed in connection with Dr. Elterman’s report;
c) the nature and strength of the relationships between the child and significant persons in the child's life: the primary relationship that is relevant in this respect is the parents. This has been canvassed. In addition, the factors of contact with extended family members is relevant, and somewhat favours Elora;
d) the history of the child's care: this have already been canvassed;
e) the child's need for stability, given the child's age and stage of development: As stated, in a sense “stability” might be taken to mean that the inevitable disruption of a move must be avoided. The evidence supports the view that the children will adapt to this disruption. More broadly, the children ought to have stable lives in either location;
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: this is the key factor in this case. In overall terms, the mother’s plan will allow each parent to utilize their various strengths to best benefit the children.
[94] I will discuss the issues or factors set out in s. 69(4)-(6) in the next section of these reasons.
[95] Section 69(6) of the FLA requires the court to consider whether the relocating guardian has established that the proposed relocation of the child is made in good faith, and 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. In relation to the good faith issue, s. 69(6) mandates consideration of “all relevant factors” and certain specific factors:
(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.
[96] There is no issue about the matter of reasonable and workable arrangements. As noted, the mother proposes the following parenting time with father: six weeks in the summer, and the Christmas (winter) break, spring break, additional parenting time if the father is in the Elora area, or if the children are in the area of Vancouver Island, plus regular communication via telephone or internet applications. There is no suggestion that the mother’s proposal is not reasonable and workable. Her proposal is as liberal and generous as possible given the inherent geographic limitations. Dr. Elterman supports this plan.
[97] I have no difficulty concluding that the mother’s relocation plan is in good faith in the ordinary general sense, by which I mean that her proposal is not driven by ulterior or improper motives, such as impeding the other parent’s parenting time or intending to harm the child’s (in this case, the children’s) relationship with the other parent, and the mother genuinely believes on objectively reasonable grounds that the relocation is in the best interests of the children.
[98] The mother does not seek to vary the joint guardianship provisions of the separation agreement, under which the parties share parenting responsibilities. As noted, she proposes the most generous parenting time possible for the father. There is no evidence of any kind to suggest that she has ever done or said anything deleterious or obstructive to the father’s parenting of the children. The mother is fully supportive of the children’s relationships with the father. Her post separation conduct to date provides tangible support for this conclusion. Notably, she consented to the court order made by Baird J. October 4, 2017, which varied the separation agreement on an interim basis to allow the children to remain primarily with the father pending the court’s decision, in place of the equal time shared parenting schedule in effect under the separation agreement. Her conduct in this respect is a factor militating in favour of finding good faith: Chin v. Hegarty, 2017 BCSC 1321, at para. 40.
[99] Strictly speaking the “reasons for the proposed relocation” must relate to the guardian’s reason for the proposed relocation of the children, not the guardian’s own reasons for moving. The court’s jurisdiction relates to the residency and parenting of the child, not the guardian’s decision about where to live. This is made very clear as well by the wording of s. 46(2)(a), the complementary section of the FLA, not applicable here. The two sections must be read harmoniously. Unsurprisingly, in this case, as in most if not all cases, the mother’s stated reasons are her own reasons for relocating herself. Despite the wording of the section, this is not inappropriate in my view.
[100] The mother states that she chose to relocate to Ontario because that is where she is from and that is where her extended family continues to live. She decided upon Elora because of its proximity to other family members, and because of the appealing nature of the community and its advantages both for herself and the children. I have already referred to these aspects of her evidence and do not need to repeat that.
[101] The mother moved to BC in the first place to live with and marry the father. It is not surprising that with the ending of the marriage she would wish to return to Ontario, where her family are located.
[102] As I interpret subsection 69(6)(b), the court is obliged to consider whether the proposed relocation is likely to enhance the general quality of life of the child(ren) and the relocating guardian on a combined or blended basis. This makes sense, given the inevitable interrelationship between the guardian and the child. In this case, the answer is “yes”. The mother has provided cogent evidence establishing that the quality of her life will be enhanced by the move. The quality of the children’s lives will be improved by relocating to Ontario. This latter point substantially overlaps with the general issue of the best interests of the children, which I have already considered.
[103] The mother provided notice of relocation as required by s. 66 of the FLA. The section stipulates that the notice must set out the “name of the proposed location” and the proposed date. The father argues that the notice was insufficient and vague because it specified “Ontario” but not Elora.
[104] A purposive interpretation of the notice requirement under s. 66 is called for. In my view, the notice provided was sufficient and the lack of further detail in the notice is not indicative of bad faith.
[105] The mother had discussed her possible return to Ontario prior to entering into the separation agreement. She had said the reasons were to be closer to family. In February 2017, she wrote that she was abandoning her Ontario plan “for the foreseeable future” in favour of Quadra Island. However, in March she advised the father that she had abandoned that idea, and on April 1, 2017, she provided written notice that she intended to return to Ontario by September 2017. The parties were discussing proposed parenting schedules, as confirmed in emails they exchanged as this time. The father wrote that he opposed the move. He did not ask the mother about the precise location in Ontario where she planned to live. The mother reiterated her plans by way of another email on June 12, 2017. Again, the notice referred only to “Ontario” not to Elora. However, it seems quite clear that the mother was referring to southern Ontario, where her family was. She verbally said that there were several towns close to her family in Ontario. The precise location was not central. There is no suggestion the father might have been in favour of some southern Ontario locations but not others. Although it would have been better if the notice had specified Elora, or the general area, or that the mother provide that detail earlier than she ultimately did, in the context of this case, the notice was sufficient to fulfill the requirements of s. 66, thus notice was given within the meaning of s. 69(6)(c).
[106] As to s. 69(6)(d), as noted, the separation agreement provided that the relocation provisions of ss. 66-68 of the FLA would apply if either parent wished to relocate the children from the Comox Valley. This provision was included because the mother had previously stated that she might wish to move to Ontario with the children. In the circumstances, the fact that the separation agreement contains this term does not indicate bad faith on the mother’s part. The opposite is true. The mother was open about this from the beginning, and has abided by the agreement.
[107] In summary, I am satisfied that the mother has established the matters set out in s. 69(4)(a) of the FLA.
[108] As noted, the father objects to admission of Dr. Elterman’s recommendations. Prior to the trial he brought an application for an order that Dr. Elterman be directed to amend his report to delete his recommendations respecting the proposed relocation and the parenting schedule. On June 6, 2018, Madam Justice Young dismissed the application, on the basis that the question of admissibility of the contested portions of the report should be decided by the trial judge. The application was renewed before me. At trial he argued that the recommendations in the report be excluded from evidence or disregarded.
[109] The father argues that in making recommendations Dr. Elterman went beyond the terms of the consent order appointing him, and the terms of what was in effect a joint letter from counsel. He contends that he did not agree to Dr. Elterman making recommendations regarding the relocation issue. The letter, sent by counsel for the mother, enclosed the court order of Baird J. made October 4, 2017. The letter stated:
Please note that the order does not require you to provide specific recommendations as to the future parenting time for each party.
[110] The father relies on Fawcett v. Fawcett, [1999] B.C.J. No. 506 (S.C.) [Fawcett]. In Fawcett, Mr. Colby prepared a report pursuant to a consent order under s. 15 of the FRA, addressing custody of the parties’ 10 year old son. Mr. Justice Lowry criticized Mr. Colby’s decision to make detailed recommendations regarding custody, guardianship, and parenting time, where this went beyond the terms of the consent order appointing him. Lowry J. stated:
[10] Mr. Colby not only brings his expertise to bear on the situation in assessing the pros and cons of Joshua living in each household but goes further and actually formulates a detailed resolution of the dispute. He offers a nine point proposal that addresses custody, guardianship, and the time Joshua should spend with each parent. It is, however, my respectful view that, in making such a recommendation, Mr. Colby has gone beyond what was asked of him under the terms of the order to which the parties consented. Neither the Act nor the order invites, much less directs, that he make a recommendation as to what the court's decision should be. Mr. Colby was asked only to investigate the matter of Joshua's custody and access and to report his findings. That must certainly mean that he should offer his opinion, as he so helpfully does, in assessing the apparent advantages and disadvantages of Joshua living with one parent or the other, but does not mean he should then go on to recommend the disposition to be made. That is what the court must decide albeit based in large part on the report of the investigation made.
[11] Had Mr. Colby been asked to make recommendations either by both parties or by the court, the situation would have been different. Recommendations by a person of his qualifications might well assist parents to resolve a dispute of this kind without the court's intervention. But, at least in my view, a parent who consents to no more that an order for a s. 15 investigation and report ought not to then be faced with a recommendation that amounts to a predisposition of the issue the court is asked to decide.
[12] I recognize that frequently the recommendation a consultant would make if asked can be inferred from the opinions expressed in assessing the alternatives. But that is not so in this case. The advantages and disadvantages of Joshua's living with his father or his mother as assessed by Mr. Colby in his report appear equally divided. I consider it would have been much better if he had refrained from making any recommendations.
[111] Lowry J. decided, in effect, to disregard Mr. Colby’s proposal, and instead to derive his own conclusions as to what was in the child’s best interests. As it happened, those conclusions were substantially the same as the recommendations of Mr. Colby.
[112] Baird J.’s order provides as follows:
Pursuant to s. 211 off the Family Law Act, R.S.B.C. 2011, and BY CONSENT, Dr. Michael Elterman of Vancouver, B.C. shall be appointed to prepare a report to evaluate the needs of the children [T., R.] born [______] 2010 ("Children") in relation to the Respondent’s application to relocate with the Children to Elora, Ontario, and which report is to assess:
a. The views of the Children in relation to the proposed relocation;
b. The needs of the Children in relation to the proposed relocation;
c. The impact of the proposed relocation on the Children and the impact on the Children remaining in the primary care of the Claimant; and
d. The ability and willingness of each party to satisfy the needs of the Children.
[113] As can be seen, the language of the order largely tracks the wording of s. 211 of the FLA, but is tailored to focus particularly on the proposed relocation.
[114] In my view, in making the recommendations set out in the report, Dr. Elterman did not go beyond the terms of the statute or of the order appointing him. The order does not address this issue. It was open to the parties to persuade Baird J. that a term so directing Dr. Elterman was appropriate. They did not. There may be cases in which the court would make such an order. In my view such a term would be unusual and contrary to the usual and widely accepted practice under s. 211.
[115] As I perceive it, the comments of Lowry J. in Fawcett were directed to the circumstances of the case before him. As far as I am aware, Fawcett has not been cited as authority for the proposition that s. 15 FRA (now s. 211) report authors should not make recommendations as to the actual issues before the court. FRA investigators and FLA s. 211 assessors routinely make such recommendations. I acknowledge that the father also relied on T.C. v. S.C., 2013 BCPC 217, in which Judge H.K. Dhillon expressed similar views, without citing any authority: see para. 143.
[116] The context under s. 211 is not comparable to that of an expert retained by a party in a non-family case. As observed by Parrett J. in Goudie v. Goudie, [1993] B.C.J. No. 1049 (S.C.), at para. 33:
[33] …The procedure anticipated by s. 15 is one in which the investigator interviews the people involved, observes the relationship and interaction between the spouses and the children and reports those observations, facts and impressions to the court. In the truest sense these individuals act as the courts eyes and ears in what are all too frequently highly emotional areas of conflict. The safeguards built into the process include the early delivery of the investigation reports, the opportunity to call the investigator to the witness stand and the opportunity to respond to the report generally by other evidence.
[117] FRA s. 15 reports were not governed completely by the evidentiary rules which would be in effect when dealing with reports requisitioned by one of the parties from an expert: Wu v. Sun et al, 2006 BCSC 1891, at para. 3. Similar legal principles can be applied to both s. 15 FRA and s. 211 FLA assessments or reports: K.B. v. J.B., 2015 BCSC 704, at para. 6.
[118] The s. 211 author may provide an opinion, but it is for the court to decide the matters at issue: Johnson v. Skillen, 2009 BCSC 209, at para. 8; I.J.G.P.G. v. K.M., 2016 BCSC 1072, at para. 100; A.L. v. L.W., 2017 BCSC 964, at para. 8. The court must not abdicate its role in favour of the recommendations made: King v. Borserio, 2018 BCCA 308, at para. 76. Regardless of the information that goes to the report writer, the court ultimately has the discretion to review the background information presented in the report, carry out an independent assessment based on the evidence at trial, and come to a different conclusion as to the best interests of the child: K.B. v. J.B., 2015 BCSC 704, at para. 10, citing T.C. v. S.C., 2013 BCPC 217, at paras. 143-144; Plant v. Kempton, 2011 BCCA 171, at para. 11.
[119] In K.M.W. v. L.J.W., 2010 BCCA 572, Huddart J.A. stated (for the court):
[50] To aid the court and counsel in their respective tasks, in British Columbia, counsel and the court are permitted to seek the assistance of an independent and impartial investigator and to call on that investigator to make recommendations based on the results of that investigation: Family Relations Act, s. 15. The facts stated in the investigator's report are prima facie evidence of their truth: B. v. B., 2004 BCSC 72 at para. 36; Goudie v. Goudie, [1993] B.C.J. No. 1049 (S.C.) [Q.L.] at paras. 33-4; Hamilton v. Hamilton (1983), 50 B.C.L.R. 104 at 109 (Prov. Ct.).
[Emphasis added.]
[120] Huddart J. uses the phrase “to call on that investigator to make recommendations”, which may suggest that such a request must specifically be made. However, in view of fact that such recommendations have been routine for many years, and the importance and utility of them, in my view the ordinary expectation of the parties and court is that the report will contain recommendations, unless the court otherwise orders.
[121] In the same year Fawcett was decided (1999), in the trial decision in Van de Perre, T. P. Warren J. declined to follow the recommendations of Dr. Korpach pursuant to the s. 15 FRA report, that custody of the child should go to the father and his wife. He granted custody to the child’s mother. This illustrates both that the practice of s. 15/s. 211 report writers making recommendations is nothing new, and that judges can and do disregard such recommendations. The trial decision was reversed by the Court of Appeal, and restored by the Supreme Court of Canada.
[122] It could be awkward and artificial for the assessor to limit the report by avoiding recommendations or opinions as to the actual issue before the court. This is such a case. There was one essentially binary issue that Dr. Elterman was directed to assess: where should the children reside? A report written in a manner designed to avoid dealing directly with this issue would not be as useful, and could leave out important information.
[123] Here, the portions of the report the father seeks to exclude set out Dr. Elterman’s recommendations, and, critically, his rationale. The combined presentation of both recommendations and reasons helps the court to easily and clearly understand and evaluate the assessor’s opinion. Without the recommendations, and reasons, the parties and the court could be left guessing as to the assessor’s real opinion. Where the stakes are as high as they are in relocation cases, that should not happen.
[124] Another advantage of having the report writer provide recommendations is that, as recognized in Fawcett, the parties could choose to implement the recommendations, without going to court. The report writer should not have to prepare two versions of the report.
[125] The terms of the letter to Dr. Elterman from counsel could not limit his authority from that set out in the order of the court appointing him, even though the order was made by consent of the parties. The s. 211 assessor is appointed by the court, and derives his or her authority from the court order and the statute, not counsel’s instructions. In any event, the wording of the letter relied on is very limited. It does not state that the parties agree that Dr. Elterman must not make recommendations as to the relocation issue.
[126] In summary, I consider Dr. Elterman’s opinions and recommendations admissible, and that the process has not been unfair or prejudicial to the father. It is open to me to agree or disagree with the recommendations as I may see fit. More broadly, in my view it is appropriate for a s. 211 assessor to include in the report the author’s recommendations concerning the actual issues before the court, unless the court orders otherwise. If the parties wish to limit the assessor’s authority in this way, they should address that through the terms of the court order.
[127] I observe that in this case I am particularly reliant on the s. 211 report, due to the fact that the parties have chosen to proceed by way of a summary trial. It is thus all the more critical that I have the benefit of a full and complete report.
[128] The father’s application for an order prohibiting the relocation is dismissed, and the mother’s application is allowed. The father will have parenting time with the children as follows: six weeks in summer, ten days over the Christmas break, and two weeks at spring break, as well as long weekends or weekends that are extended by a professional day, either in Ontario or B.C., the latter on reasonable prior notice from the father. Additional parenting time may be agreed to by the parties. The parties may mutually agree to vary the parenting schedule. The parents will both have regular communications with the children via telephone or internet applications. The amount and timing of such communications will be agreed by the parties or if necessary will be the subject of a court order.
[129] The mother proposes that the costs of transportation between BC and Ontario be shared equally. This is reasonable and fair, given her income. This will apply to transportation costs of the Christmas, spring and summer parenting times in BC. Transportation costs for other parenting times will be as agreed to by the parties. Although the children are now eight years old and may fly unaccompanied according to airline policies, I am not sure the parties have agreed that they are yet ready to do so. Therefore, until such time as the parties agree that the children may fly unaccompanied by an adult, the parties or another agreed adult shall accompany the children to the other party’s location, and the transportation costs of the accompanying adult will be the responsibility of that party.
[130] The mother applies for child support. I did not receive submissions about this. The parties will have liberty to apply in relation to child support if they are unable to agree on the order that should be made. I am not seized of that issue.
[131] The mother has been successful and is entitled to the costs of the proceedings.
“Verhoeven J.”