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[57] To summarize these authorities, the correct approach in an initial custody application involving parental mobility is a “blended” analysis where mobility is decided together with custody, instead of a two-step analysis where custody is decided first and becomes determinative of mobility (T.K. at para. 48). The blended analysis involves considering the factors set out in Gordon and One in the context of the four scenarios (S.S.L. at paras. 24 and 29). In this case, the four scenarios are: (i) primary residence with the Mother in Haida Gwaii; (ii) primary residence with the Father in Vancouver; (iii) shared parenting in Vancouver; and (iv) shared parenting in Haida Gwaii.
[58] If the court concludes that the question of primary residence is balanced as between the parents, or the only custodial arrangement in the best interests of the child is shared custody, the parents’ answers to the double-bind questions can be considered to determine where the parents should live, so long as the evidence is carefully weighed and is not allowed to overpower the analysis or militate towards the status quo (S.S.L. at para. 24 and T.K. at para. 66). Ultimately, the court cannot order either parent to live in a particular place (McIntosh v. Kaulbach, 2014 BCCA 299 at paras. 16-19), so the court should be careful to make realistic decisions and give workable directions if the court concludes that shared parenting is in the best interests of the child (see R.E.Q. v. G.J.K., 2016 BCSC 1498 at paras. 90-93). The court might, for instance, make alternative orders in the event that the parents do not ultimately retain or change residence in accordance with the court’s decision, as they indicated at trial that they would do.
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[120] In summary, the mother is a most capable and loving parent. It is to be hoped that she will be willing to share the parenting of M with the father with a generous heart. It is not necessary that the parents have any relationship other than being parents of M. However, it is necessary for M that that relationship be a respectful one.
[130] In unilaterally imposing restricted parenting time for M with the father, and in making unilateral decisions, the mother was acting without regard for the fact that she and the father were joint guardians of M notwithstanding the separation. As joint guardians they had and have joint abilities and responsibilities to make decisions regarding M including her residence, childcare, time with both parents and grandparents, and her cultural upbringing.
[131] The father’s frustration in not being able to spend time with M as he wished in the summer of 2016 manifested itself in his making more requests of the mother than he reasonably expected to be granted. He referred to these requests as “moonshotting”. One effect of the moonshotting was to increase the mother’s anxiety, and thus the conflicts between the parties. The assistance of counsel in arranging parenting time reduced the conflict, and M’s improved schedule with her father reduced her transition difficulties.
[132] It appears that M’s time with her father – and the law is that parenting time is the right of the child – is now positive and progressing. To reach the next stage of M having equal time with both parents, the transition time recommended by Mr. Finlay will be of assistance.
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[169] After consideration of the factors discussed above and all of the evidence, particularly that of Mr. Finlay, I am satisfied that the only custodial arrangement in M’s best interests is that the parents have joint custody while residing in the same location. I make this determination specifically because the question of primary residence is balanced between the parties, and the amount of change involved for M if she travels between Haida Gwaii and Vancouver monthly is noted by Mr. Finlay to be not in her best interests. Further, frequent travel back and forth between Vancouver and Haida Gwaii would not be sustainable after M begins kindergarten in two years. In his testimony, Mr. Finlay described this as the ideal parenting plan. I agree.
The parents have joint guardianship of M pursuant to the Family Law Act. They will share equally the parental responsibilities as set out in s. 41 of the Family Law Act. Neither parent will have the final say or tie-breaking vote as both parents are equally competent to make such decisions. Any difficulties in jointly exercising the parental responsibilities are to be resolved either by mediation, a parenting co-ordinator if that agreement or court order is made, or, as a final option, with recourse to the court. In that regard, I will be seized of all matters arising from these Orders for two years from the date of these Reasons.
· The primary residence of M will be in Vancouver, British Columbia.
· Parenting time as defined by the Family Law Act will presently be shared equally by the parents
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Vancouver Surrey Child Mobility Lawyers at MacLean Family Law are led by Lorne N. MacLean, QC winning counsel in Canada’s most famous child custody case of Young V. Young from our Supreme Court of Canada.
