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CUSTODY AND ACCESS - Conduct of parents - Maximum contact principle

Wednesday, July 04, 2018 @ 8:44 AM  

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Appeal by the mother from refusal of her application to relocate the child's primary residence from British Columbia to Nova Scotia with related relief. The mother spent the majority of her life in rural Nova Scotia in close proximity to family. She moved to Vancouver in 2004 after graduating university, but always planned to return to Nova Scotia. The father was born in Australia. He moved to Canada in 2005 and became a citizen in 2012, working in construction management. He had no family in Canada. The parties met in 2007 and moved in together in 2009. Their relationship began to deteriorate after their child was born in 2011. A major source of tension was the mother's belief that the father was an alcoholic. The father denied the allegation, but acknowledged he consumed four beers per evening. In 2013, the mother left Vancouver for Nova Scotia with the child. She returned after receiving acceptance into a nursing program at UBC. The return to cohabitation while separated was toxic for the parties and adversely impacted the child's behaviour. The mother developed a major depressive disorder. As of 2015, the mother lived apart from the father. The parties shared parenting time, but their relationship remained uncooperative. The mother sought to relocate with the child to Nova Scotia to be close to family, and to improve her mental health and her financial position. The trial judge accepted a s. 211 report's conclusion that the best interests of the child would not be served by relocation. Despite significant criticisms of the father's conduct, the judge concluded that the mother's proposed relocation was not made in good faith, was not likely to enhance the child's life, and did not involve arrangements to preserve the child's relationship with the father. The mother was granted primary residence in Vancouver with equal parenting time. The mother appealed.

HELD: Appeal allowed. The trial judge erred in law in deciding the relocation application pursuant to Division 6 rather than Division 4 of the Family Law Act. Absent an existing agreement between the parties, when an initial application was brought for an order respecting parenting arrangements under s. 45 and a guardian indicated an intention to change the child’s residence, s. 46 applied, notwithstanding that an interim order was made in the course of the proceedings. The error led the trial judge to decide the relocation application in advance of determining appropriate parenting arrangements. Determination of the child's best interests required a blended, in-the-round analysis that balanced all of the relevant factors, including the mother's proposed move. Such an analysis supported a conclusion that the proposed relocation was in the child's best interests, recognizing the mother's role as primary caregiver, the father's involvement of the child in degrading the mother, the available support in Nova Scotia, and the likely positive impact on the child of the mother's increased stability and happiness. The parties were granted joint guardianship and the mother was granted permission to relocate to Nova Scotia with the child, with the father's parenting time to be agreed upon by the parties or determined by a future application.

K.W. v. L.H., [2018] B.C.J. No. 977, British Columbia Court of Appeal, R. Goepel, G.J. Fitch and S.A. Griffin JJ.A., May 25, 2018. Digest No. TLD-July22018004