Citation: ☼ A.P. v. C.N.

2023 BCPC 167

Date: ☼20230713
File No: 5493
Registry: [omitted for
publication]

2023 BCPC 167 (CanLII)

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

IN THE MATTER OF
THE FAMILY LAW ACT, S.B.C. 2011 c. 25

BETWEEN:
A.P.
APPLICANT

AND:
C.N.
RESPONDENT

REASONS FOR JUDGMENT

OF THE
HONOURABLE JUDGE L.E. DOERKSEN

Counsel for the Applicant: V. Canil

Appearing on his own behalf: C. N.
Places of Hearing: [omitted for publication], B.C.
Dates of Hearing: March 7, 8, 9, 2023 and June 23, 2023
Date of Judgment: July 13, 2023

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A.P. v. C.N. Page 1

INTRODUCTION

[1] Throughout this decision I will refer to the Applicant as the “mother” and the
Respondent as the “father”. Both parties are the parents of J., born [omitted for
publication], now [omitted for publication] years of age. J. will be referred to as the

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“child”.

[2] The mother and father separated in 2015 in tragic circumstances after a second
child died. Both parents lived in [omitted for publication], British Columbia, at the time
and both have family in the area. In 2018, the parents agreed in writing to a shared-
parenting arrangement for the child on a roughly equal basis. This agreement was filed
in court as a resolution to a Family Law Act application made by the mother.

[3] Subsequent to their separation, the mother started a new relationship and
remarried and has three children with her new spouse. As of November 2021, the
mother moved with her new family to [omitted for publication], B.C. The father remains
in [omitted for publication] with the child. An interim order has been made that allows the
mother parenting time with the child every other weekend.

[4] The mother applies to have the child in her care full time, with the father having
parenting time every other weekend. The father opposes the mother’s application.

THE FACTS

[5] A hearing was held over the course of four days. The mother, the mother’s new
spouse (R.M.) and his sister (S.B.) testified. The father did not testify. A s. 211 report
(also known as the “Views of the Child”) was filed with this Court. Affidavits submitted by
the parties in regards to prior applications and interim orders were referred to.

[6] Although the parents agreed to a 50-50 parenting-time schedule, the child has
lived with the father for most of his life. This is due to the mother being unable to parent
the child at times due to her battle with addictions.

[7] The mother acknowledged that she has suffered through many years of addiction
to alcohol and drugs. She has fought valiantly to change her life and overcome her
A.P. v. C.N. Page 2

addictions and she believes that she is now recovered and able to parent the child full
time. She acknowledged that she has had relapses and that she has relied on the father
to take care of the child full time when this has occurred. She has also spent many
weeks in treatment and she could not parent the child then either.

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[8] The reason for her move to [omitted for publication] is because it will help her
with her recovery as she has family support there through her husband. The mother
testified that [omitted for publication] is not a good environment for her, although she too
has family in [omitted for publication].

[9] Since her move to [omitted for publication], the mother states that the father has
been less than cooperative with arranging and facilitating parenting time with the child.
She provided several examples of this; however, she acknowledges that the father is a
good parent to the child and that he and the child have a strong bond.

[10] Another motivation for the mother to make this application is that the child now
has three half-siblings and the child would benefit from being in one big family. She is
also a stay-at-home mom and will have more time to look after the child than the father
who works. However, she acknowledged that looking after three children is a lot of work
and she relies on other family for support and has two of the children in child care.

[11] The mother’s new spouse, R.M., testified and supports much of what the mother
said about her addictions and recovery. The mother and Mr. R.M. appear to be a
compatible and supportive match for each other. They discussed a harrowing time when
Mr. R.M. contracted COVID and nearly died. He was hospitalized for many weeks and
had a long recovery. Mr. R.M. was frank in his understanding of addictions recovery and
that it is never really over; it is a lifelong journey.

[12] Mr. R.M. was fair in his assessment about the father. The two have not gotten
along well and there was an incident that almost became a confrontation. However, they
were able to work through it. Mr. R.M. believes that the father is under a lot of stress
due the mother’s move to [omitted for publication] and this Court matter.
A.P. v. C.N. Page 3

[13] S.B. testified as to the positive aspects of the child living in [omitted for
publication] with the mother’s new and larger family. She also described the father’s
involvement with the child. She believes the father and the child have a strong
relationship; however, the father’s behaviour concerns her. When the father asked her if

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she thinks he is a good father, she replied that she does not think that he realizes some
of the damage that he causes. She does not think he is intending to do harm. She
thinks that the father probably needs help. She points out that the mother has
recognized that she needs help and has gotten it. An appropriate and caring answer.

[14] Both Mr. R.M. and Ms. S.B. are in agreement that the mother’s new life in
[omitted for publication] will make it less likely that she would relapse.

[15] Both Mr. R.M. and Ms. S.B. were impressive witnesses and although they clearly
hope that the mother is successful in this application, they do not appear to have any ill
will towards the father. They recognize that the child needs a good relationship with his
father regardless of the outcome of this matter.

THE SECTION 211 REPORT

[16] The child’s views on this matter are very clear: he wishes to remain with his
father in [omitted for publication]. He is clearly very torn between his parents and does
not wish to make either parent unhappy. When asked what would be the best solution
for him if he had the power to make it happen, it is, predictably, that his parents were
still together.

[17] The reporter does not see any undue influence from the father on the child in
expressing his views. The reasons for the child’s wishes are obvious when he was
asked about his life by the reporter. He has lived his entire life in [omitted for
publication], his grandparents are in [omitted for publication], his best friends are in
[omitted for publication], his father has been the parent most involved in his life and the
parent he would “go to” first to discuss anything. It is not hard to see why the child would
not want to change any of this.
A.P. v. C.N. Page 4

[18] As the 211 report was completed after the mother had testified, the mother was
recalled to provide a response to the report. She does not doubt the child provided his
views as reported but feels that the child is co-dependant with the father and that it is
still in the best interests of the child that he relocate with her.

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[19] The mother also provided further instances of the father not being a co-operative
parent. Also, a report card was submitted showing that the child has had several
absences from school that is concerning.

THE LAW

[20] The relevant provisions of the Family Law Act [SBC 2011] Chapter 25 (“FLA”) are
sections 37 and 69, set out below:

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;
A.P. v. C.N. Page 5

(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

2023 BCPC 167 (CanLII)

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.
Orders respecting relocation
69 (1) I n 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
A.P. v. C.N. Page 6

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

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(a) of the factors described in subsection (4) (a), and
(b) that the relocation is in the best interests of the child.
(6) For the purposes of determining if the proposed relocation is
made in good faith, the court must consider all relevant factors,
including the following:
(a) the reasons for the proposed relocation;
(b) whether the proposed relocation is likely to enhance the
general quality of life of the child and, if applicable, of the
relocating guardian, including increasing emotional well-
being or financial or educational opportunities;
(c) whether notice was given under section 66 [notice of
relocation];
(d) any restrictions on relocation contained in a written
agreement or an order.
(7) In determining whether to make an order under this section, the
court must not consider whether a guardian would still relocate if
the child's relocation were not permitted.

SUBMISSIONS BY THE MOTHER

[21] The mother submits that her application should be granted as there has been a
material change in circumstance in that she has relocated. Her relocation necessitates a
change in the current parenting-time arrangement.

[22] With respect to the s. 211 report, the mother asks this Court to give the
conclusions less weight, as the child is still young and does not fully realize that it would
be better for him to live with his mother and his half-siblings. The case law states that a
child’s views should only be a factor this Court may consider and cannot be
determinative – the child does not get to decide the case (See L.M. v. J.J.M., 2017
BCSC 853, at para. 9).

[23] The mother asserts that she is acting in good faith and in compliance with s. 69
of the FLA and therefore her application should be granted.
A.P. v. C.N. Page 7

[24] If the child is not relocated to the mother’s new residence, the mother seeks
parenting time with the child every other weekend and school vacations to be shared
equally. Further, the father should be placed on conduct orders so that he is at least
forewarned about what this Court’s expectations are of his future behaviour.

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SUBMISSIONS BY THE FATHER

[25] The father submits that the child should remain in his care as this would be
consistent with the history of his care. Further, consistency is important to children and
changing the child’s living arrangements would be upsetting and not worth the risk.

[26] The mother has obligations to her other children and he only has the one child to
look after. He is a devoted father and he and the child have a very strong bond.

[27] He submits that the child is mature beyond his years and the 211 report makes it
clear that the child’s desire is to remain in his care. The child’s views should be given
considerable weight in this case.

ANALYSIS

[28] I find that each parent cares deeply about the child and earnestly believes they
are seeking what is best for him. I find each parent capable of caring for the child. Each
parent has their strengths and weaknesses, but this is not a parenting contest and is not
dependant on who is the better parent.

[29] I find the mother’s handling of her addictions and recognizing when she could not
parent to be commendable. It is to her benefit and to those around her that she had this
insight and dealt with her addictions in a constructive manner.

[30] The factors that are set out in s. 37(2) that weigh in favour of the child remaining
with his father are:

The child’s views – at age [omitted for publication], it is appropriate to

consider the child’s views. It is very clear that the child wishes to remain
with his father.
The nature and strength of the relationships between the child and
significant persons in the child's life – the child has a strong bond with both
A.P. v. C.N. Page 8

of his parents and other family. The bond between the child and his father
is strong.
The history of the child's care – the father has had the majority of the time
caring for the child.
The child's need for stability, given the child's age and stage of

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development – as expressed by the child himself, he does not want any
change to his life. He has a good life in [omitted for publication] with
friends and activities that he does not want lose. He has extended family
in [omitted for publication]. It is unsurprising that a contented child wants
things to stay as they are and unless there are very good reasons, such
as to protect the child from harm, the status quo should be maintained.

[31] There is only one s. 37(2) factor weighing in favour of the mother’s application:

a. The appropriateness of an arrangement that would require the child's

guardians to cooperate on issues affecting the child – the father has, at times,
behaved badly towards the mother and has frustrated her parenting time with
the child.

[32] However, this Court must consider s. 37(4), in that 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.

[33] Although the father has at times behaved badly, I do not expect this behaviour to
continue. The father is fearful of losing his child and has been reactive and emotional. It
probably would have helped if he could have maintained legal counsel to guide him
through this. The father’s fear has led him to make decisions and do things that I believe
he now knows he should not have done.

[34] It would be surprising to this Court if, once this matter is settled, the father
maintains this reactive behaviour any longer. He does recognize that the child needs to
spend time with his mother. Moving forward, the father needs to trust that the child he is
raising will respect him, in part because of the respect he shows to his child’s mother.

[35] Should the father’s attitude toward the mother not change, this will not bode well
for his relationship with the child and he will not look good before this Court should this
matter return to court.
A.P. v. C.N. Page 9

[36] As this is an application to relocate the child, this Court must also consider s. 69
of the FLA. Section 69(4)(a) requires the relocating parent to show that the relocation be
made in “good faith” and s. 69(6) sets out the factors to consider in determining what is
in “good faith”.

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[37] Those factors, restated from above, are:

(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.

[38] The reasons for the mother’s relocation are primarily for the mother’s mental
health and addiction issues. Although these reasons are laudable, in and of themselves
they are not specifically for the direct benefit of the child. The child does not need to
move in order to improve his emotional well-being or be placed in better financial or
educational opportunities. If anything, there is a risk that the child will suffer emotional
harm by relocating.

[39] “Good faith” as set out in s. 69 is probably an unfortunate phrase in the family law
context. It is a legal phrase with defined factors to determine if one is acting in good
faith. Unfortunately, it may seem to the lay litigant that it means one must act with “good
intentions” and if not successful, that they are not acting with good intentions or worse,
in bad faith. I have no doubt that the mother’s application is with all the best intentions;
even the father in his final submissions agrees with this.

[40] In testimony, it was revealed that the child enjoys visiting his mother and his half-
siblings. There are positive aspects to being with one’s siblings; however, visiting a
place and living in a place are not the same. I am not confident that the child would be
emotionally better off by relocating and I am concerned that the opposite might occur.
Certainly, in the short term, a relocation would be emotionally harmful to the child and I
A.P. v. C.N. Page 10

am not willing to take the chance that the potential longer-term benefits are worth the
short-term harm (See Pasin v. Beitel, 2017 BCSC 253, para. 47).

[41] In addition, the mother and father filed a written agreement that stated the child
would not be relocated outside of the [omitted for publication] area. The mother has

2023 BCPC 167 (CanLII)

argued that her move to [omitted for publication] is a substantial change in circumstance
that necessitates her application. I disagree.

[42] The mother’s move is not a substantial change as she generated this change on
her own – even if for her own mental health, this cannot be considered a factor. If the
mother had remained in [omitted for publication] and made this application, she could
not argue that her desire to move is a substantial change in circumstance and this Court
is forbidden to consider whether a party would move, or not, depending on the court’s
ruling (see s. 69(7) of the FLA).

[43] In the end, I find that the mother has not satisfied the requirements of s. 69 and a
relocation is not justified.

CONCLUSION

[44] I make the following order:

a. The mother’s application for the relocation of the child is dismissed.

b. The Parenting Agreement filed with this court April 24, 2018 remains in
force except paragraphs 5, 6 and 9 as amended by this order.
c. This order replaces all prior orders.
d. The child will remain with the father as the primary parent in [omitted
for publication], British Columbia.
e. The mother will have parenting time with the child every other
weekend. If a school holiday or non-instructional day falls on a Monday
or Friday (or both) of the mother’s scheduled weekend, the mother will
have those days for parenting time as well.
f. School vacations will be split equally between the parents, except for
the summer school vacation, of which this year there are nine weeks of
vacation; therefore, the mother will have five of the weeks of the
summer vacation and the father, four. If, in future years, the summer
vacation is nine weeks in length, the mother will have a fifth week of
summer vacation with the child.
A.P. v. C.N. Page 11

g. The mother is responsible to pick up the child, or designate a

responsible adult to pick up the child, after school at the start of her
parenting-time weekend. The father is responsible for picking up the
child, or designating a responsible adult to pick up the child, from the
mother’s residence at 2:00 p.m. pacific time at the end of the weekend.
h. The parents will discuss and agree on a parenting-time schedule by

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July 31 of each year for the coming school year. For this year, 2023,
the parents will have until August 15th to discuss and agree on a
parenting-time schedule for the coming school year.
i. If the parents cannot agree on a parenting-time schedule, then the
mother’s first weekend parenting time will start September 15, 2023,
and alternate every other weekend thereafter. If the parents cannot
agree on the division of the school vacation time, the mother will have
the first choice of deciding which half of the vacation time she will have
parenting time with the child.
j. The parties are at liberty to amend any parenting time, including the
time and place of any pick up or drop off of the child, provided the
agreement is in written or electronic form.
k. Conduct orders:
The parties shall:
i. put the best interests of the child before their own interests;
ii. encourage the child to have a good relationship with the
other parent and speak to the child about the other parent
and that parent’s partner in a positive and respectful manner;
and
iii. make a real effort to maintain polite, respectful
communications with each other, refraining from any
negative or hostile criticism, communication or argument in
front of the child.
The parties shall not:
i. question the child about the other parent or time spent with
the other parent beyond simple conversational questions;
ii. discuss with the child any inappropriate adult, court, or legal
matters; or
iii. blame, criticize or disparage the other parent to the child.
l. Either party is at liberty to schedule an appearance before this Court
on short notice to clarify any terms of this order and add any terms to
which the parties consent.
A.P. v. C.N. Page 12

_______________________________
The Honourable Judge L.E. Doerksen
Provincial Court of British Columbia

2023 BCPC 167 (CanLII)