Court File and Parties
Ontario Court of Justice
Date: 2015-07-30
Court File No.: Kenora FO-08-014-004
Between:
Stephanie Palmer Applicant
— AND —
Jesse Bongfeldt Respondent
Before: Justice Sarah Cleghorn
Heard on: February 12, February 20, June 22, 2015
Reasons for Judgment released electronically on: July 30, 2015
Counsel:
- Thomas Carten, counsel for the applicant
- Stephen Lundin, counsel for the respondent
Cleghorn J.:
Overview
[1] A Motion to Change has been brought by Ms. Palmer with respect to the order of the Honourable Justice Hoshizaki, dated January 9, 2014, seeking to relocate with the parties' child from Winnipeg, Manitoba to Victoria, British Columbia.
[2] The child, Joryn James Robert Bongfeldt, was born on October 29, 2007. The parties separated on January 26, 2008.
[3] There have been 3 final orders to date. The first order is dated May 1, 2008. It provided that Ms. Palmer was to have custody of Joryn and set the amount of child support payable by Mr. Bongfeldt to Ms. Palmer. This order was silent as to Mr. Bongfeldt's access.
[4] The second order is dated November 16, 2011. It provided permission to Ms. Palmer to relocate to Winnipeg, Manitoba with Joryn and set out a specified access schedule for Mr. Bongfeldt.
[5] The third order (and the subject of the Motion to Change currently before me) is dated January 9, 2014. The preamble, which is relevant to the issues before me, states the following:
"Motions to Change brought by both parties were scheduled for hearing this date but were resolved in advance by way of Minutes of Settlement.
The following persons were in court: Thomas Carten, solicitor for the Applicant; Stephen R. Lundin, solicitor for the Respondent.
WHEREAS Stephanie Palmer has brought a Motion to Change seeking the court's permission to move the child, born October 29, 2007, to Victoria, British Columbia and to increase child support;
AND WHEREAS Jesse Bongfeldt has defended this claim and has brought a claim of his own seeking an order that the parties have joint custody of Joryn with Joryn residing with Jesse Bongfeldt in Kenora, Ontario;
AND WHEREAS Stephanie Palmer is currently residing with Joryn in Winnipeg, Manitoba while she is attending the University of Manitoba;
AND WHEREAS Stephanie Palmer is expecting a child with her new partner, Frederick Jaskiewicz;
AND WHEREAS Frederick Jaskiewicz resides in British Columbia and has been a member of Royal Canadian Navy since January 13, 2013."
[6] The order was premised on minutes of settlement that had been executed by both parents. The claims brought by Mr. Bongfeldt for joint custody and to change the primary residence of the child were dismissed. The claim by Ms. Palmer to vary the child's ordinary residence was dismissed. It was agreed that Ms. Palmer could reside with the child in Winnipeg, Manitoba or Kenora, Ontario unless she obtained the written consent of Mr. Bongfeldt or permission of the court to reside elsewhere. In the event that Ms. Palmer chose to pursue a claim to change the ordinary residence of the child any court application would be conducted in the Ontario Court of Justice in the City of Kenora. Both the child support payable and the access schedule were varied.
[7] At the time of the most recent Order, Ms. Palmer was and currently is residing in Winnipeg, Manitoba. Mr. Bongfeldt was and currently is residing in Kenora, Ontario.
[8] Ms. Palmer is now engaged to her new partner (who is employed and resides in Victoria, British Columbia) and has had a child with him.
[9] The substantive relief requested by Ms. Palmer is to change the ordinary residence of the child, from Winnipeg, Manitoba to Victoria, British Columbia.
[10] Mr. Bongfeldt has filed a Response to Motion to Change requesting custody of Joryn and the primary residence to be varied from Ms. Palmer to Mr. Bongfeldt.
[11] Prior to determining whether the relief requested by either parent in the pleadings is in the best interests of the child, Joryn, a material change in circumstances must first be established (first step in a two part test). Ms. Palmer bears the burden of establishing that the threshold of a material change in circumstances has been met.
[12] At the conclusion of Ms. Palmer's case I requested that both counsel prepare submissions on whether Ms. Palmer has established a material change in circumstances.
[13] For reasons that I will outline below, I have concluded that Ms. Palmer has failed to establish a material change in circumstances. As a result, I lack jurisdiction to vary the order of January 9, 2014.
Case Law
[14] In Gordon v. Goertz the Supreme Court of Canada set down the principles that govern when one parent seeks to change the ordinary residence of a child over the objections of the other parent. The Court established a two part test that requires the parent who is seeking the relief to first establish that there has been a material change in circumstances. The court defined what constitutes a "material change in circumstances" as follows, at para. 10 of its judgment:
"What suffices to establish a material change in the circumstances of the child? Change alone is not enough; the change must have altered the child's needs or the ability of the parents to meet those needs in a fundamental way: Watson v. Watson (1991), 35 R.F.L. (3d) 169 (B.C. S.C.). The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I. S.C.). Moreover, the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order. "What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place": J.G. McLeod, Child Custody Law and Practice (1992), at p. 11-5."
[15] If a material change in circumstances is not established then the inquiry is complete and no further consideration of the claim is warranted; as the court hearing the motion will lack jurisdiction to vary the order.
[16] Alternatively, if a material change in circumstances is established, the court must continue with a fresh inquiry into what is in the best interests of the child. In Gordon v. Goertz, the Court explained:
"It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order."
[17] The Court of Appeal has instructed that relocation for employment that will allow a parent to achieve or move towards the goal of economic self-sufficiency can meet the threshold of establishing a material change in circumstances that may impact children. However, it is clear that a move is not to be the only focus or factor to be taken into consideration nor does it hold more weight than other factors/circumstances that may be in existence. These factors are to be taken into consideration under the second part of the analysis.
[18] The Order of January 9, 2014 resulted from the consent of the parties. There is a high burden required when a party is seeking a variation of a consent order. As was explained in Ordano v. Moore:
"A consent order is analogous to a contract: one party agrees with another, in writing, about what they wish the court to approve. As the Supreme Court of Canada emphasized in Miglin v. Miglin, there is value – not only for the efficient operation of the justice system, but perhaps even more importantly for the health of family dynamics – in respecting negotiated settlements. A consent order represents a negotiated settlement; it therefore embodies the dual values of finality of court decision on the one hand and the right of parents to make decisions and requiring them to keep their promises on the other. A consent order should ordinarily not, therefore, be disturbed."
[19] Having set out the guiding principles and the controlling test of what constitutes a material change in circumstances, I will next summarize the evidence that Ms. Palmer has put forward on this motion.
Evidence of Roland Wong
[20] Mr. Wong is a professional engineer who is self-employed in Vancouver, British Columbia. He testified as to the offer of employment presented to Ms. Palmer, dated July 21, 2014.
[21] Mr. Wong has never met Ms. Palmer in person. His business partner, Bill Bohhoslawec, recommended Ms. Palmer to Mr. Wong. Mr. Bohhoslawec is involved in a common law relationship with Elizabeth Olsen; Ms. Olsen is Ms. Palmer's mother.
[22] Mr. Wong had Ms. Palmer complete some editing work for him on two separate occasions, remotely, in May or June of 2014. One project was for 8 hours; the second project for 6 hours. Ms. Palmer was paid cash for her work.
[23] Based on the work completed on these two occasions, Mr. Wong presented an offer of employment, dated July 21, 2014, that contained the following terms:
- Part time employment in the position of Client Relations Manager;
- Maximum of 30 hours per week;
- Starting salary of $44,400 per annum;
- Eligibility for vacation/personal time off, bonuses, stock options and health benefits.
[24] The offer of employment is still open for acceptance for a further 90 to 120 days.
[25] Mr. Wong does not currently have any administrative employees. Mr. Wong testified that he anticipates an increase in the workload and is therefore in need of administrative assistance. He hopes to groom the person hired to take on additional responsibilities in his business. He has made no other efforts to find an employee, beyond the offer to Ms. Palmer.
[26] Despite the offer of employment containing provisions for a benefit plan and bonus/stock options at the moment there is no benefit plan in place or an actual bonus/stock option, but these are benefits that Mr. Wong is hopeful he can offer at a future date.
[27] The contract sets out a maximum number of hours per week. Mr. Wong testified that there is no minimum, as some weeks substantially less hours will be required while there will be periods of time where more than 30 hours per week is needed.
[28] Although it is a requirement of the job that Ms. Palmer relocate to British Columbia, it is not essential that she reside in Vancouver, where Mr. Wong is located. Ms. Palmer may reside in Victoria and travel into Vancouver once or twice per week.
Evidence of Elizabeth Olsen
[29] Ms. Olsen is Ms. Palmer's mother and therefore Joryn's maternal grandmother. At the time of the trial she was residing in Thailand with her common law partner, Bill Bohhoslawec.
[30] She owns a home in Kenora but her intention is to sell the home and relocate to Vancouver, British Columbia where her partner currently resides (when not working out of the country). There is no set timeline for when she will be residing in Vancouver.
[31] Her partner's work requires him to periodically work in different countries. As noted, they are currently both in Thailand. She is unsure where his next job may take him or whether she will accompany him.
Evidence of Stephanie Palmer
Education
[32] Ms. Palmer is currently enrolled in a Bachelor of Arts program at the University of Manitoba. She requires a further 12 credits to complete her degree. Upon completion of her degree she intends to further her education to obtain a social work degree.
[33] Ms. Palmer has applied to continue her studies in Victoria. Her plan is to finish her gender studies degree and then hopefully enter a social work program. Her plan remains the same in either location, that being Manitoba or British Columbia.
New Partner
[34] Ms. Palmer met her current partner, Frederick Jaskiewicz, in May, 2013. They have a child together (who does not form part of the Motion to Change), M. Y-P., born May 19, 2014. Ms. Palmer became aware of the pregnancy in September, 2013.
[35] Mr. Jaskiewicz is employed in the Navy. His permanent residence is in Victoria, British Columbia. The two are now engaged with no date yet fixed for the marriage.
Parenting Concerns of Joryn
[36] Joryn has experienced some behavioral issues at school during the September to December term of 2014. He has reportedly been displaying aggression with other children at the school. The school has put in place a very specific plan to address these concerns. Ms. Palmer testified that Joryn has adapted to the plan and is doing much better.
[37] On February 20, 2015, Ms. Palmer informed both the court and Mr. Bongfeldt that Joryn has now been diagnosed with ADHD. This was not a surprise to her; she testified that Joryn has been displaying the behavioural symptoms for ADHD since he was a baby. Joryn has been enrolled and has started play therapy. He has an appointment with a specialist for April of this year.
[38] Ms. Palmer has accepted the first available spot for play therapy for Joryn, which occurs every Saturday. Ms. Palmer has requested from Mr. Bongfeldt if he is willing to ensure Joryn can be in attendance every Saturday (as every alternate Saturday is Joryn's access with his father with the access generally occurring in Kenora). She has suggested that Mr. Bongfeldt could stay in a hotel on the Friday evening and that she is willing to extend the return time on Sunday. Mr. Bongfeldt has not responded to Ms. Palmer. Fortunately, on the Saturday that was Mr. Bongfeldt's access weekend the therapy center was able to offer Joryn a make-up time during the school week. As a result, on the second day of trial, Joryn had not missed any of his sessions.
[39] As a result of the aggressive behaviors displayed by Joryn, Ms. Palmer has attempted to speak with Mr. Bongfeldt. In particular, Ms. Palmer does not want Mr. Bongfeldt to take Joryn with him when he goes to the gym that he attends. Joryn has reported to her that at the gym there is wrestling, fighting and, one occasion, he was tied up with ropes. She is aware of these incidents as told to her by the child. Ms. Palmer feels this is a negative influence in Joryn's life. Mr. Bongfeldt has not been receptive to the idea of not allowing Joryn to attend his gym. He does not see any negative impact on Joryn. Ms. Palmer has never personally been inside the gym. Her information is from what Joryn has told her.
[40] Ms. Palmer was concerned when Joryn reported to her that he was allowed to throw ninja swords around in Mr. Bongfeldt's home. She testified that when she attempted to speak with Mr. Bongfeldt about this he responded with anger.
[41] In the spring of 2014, after visiting with his father, Joryn returned with red swollen ears, huge welts on his head, back and shoulder. He was dehydrated. The parties exchanged emails concerning this incident, dated June of 2014. In the email, Mr. Bongfeldt explains that sunscreen was applied but that he did not have bug repellant with him. He acknowledges that Joryn was bitten by sandflies. He then explained what course of treatment was provided.
[42] Ms. Palmer has raised concerns with activities that Mr. Bongfeldt and Joryn engage in. Of concern to her was an incident where Joryn reported that he was throwing pocketknives at trees when he was in the presence of his father in the forest. Ms. Palmer addressed her concerns in an email dated August 9, 2014.
[43] Mr. Bongfeldt had the month of July of 2014 for access. Ms. Palmer was concerned that when Joryn was returned he had a high temperature and was exhausted. She brought him to the emergency room. The doctor advised that Joryn was likely tired and exhausted. Ms. Palmer gave no evidence that any type of treatment was required.
[44] Ms. Palmer has concerns that when Joryn is with Mr. Bongfeldt she is unable to have telephone contact with him, as Mr. Bongfeldt does not answer his telephone.
[45] There have been a number of occasions where issues have arisen when requests have been made to change weekends, but overall, the parties have been able to agree to changes within the schedule.
[46] Further, Ms. Palmer's evidence is that at times Mr. Bongfeldt does not respond to her emails and her concerns or questions go unanswered.
Material Change as Perceived by Ms. Palmer
[47] In cross-examination, Ms. Palmer was specifically asked what changes have taken place since the last court order. She was able to identify the following:
- She has had a second child with her new partner;
- She has completed more credits in school;
- She has spent more time with her new partner as a family and there is a solid connection within the new family unit;
- She completed some work and now has an offer of employment;
- She spent a month in Victoria with her new partner's family in the summer of 2014 and has formed a closer bond to them.
[48] Ms. Palmer acknowledged that at the time of the last Order of January 9, 2014 the following were in existence:
- She was residing in Winnipeg;
- Her current partner/fiancé was residing in British Columbia;
- Her fiancé was employed with the navy and still holds the same employment;
- She was pregnant;
- She was enrolled as a student at the University of Manitoba pursuing a degree.
[49] Ms. Palmer has not sought any meaningful type of employment in the City of Winnipeg since the birth of her daughter. Her evidence is that she has focused on her parental role.
Evidence of Frederick Jaskiewicz
[50] Mr. Jaskiewicz is engaged to Ms. Palmer and they have one child together. He is currently employed as a Naval Communicator and is stationed in Victoria, British Columbia.
[51] After the birth of his daughter Mr. Jaskiewicz took a parental leave from May 19, 2014 through to January 15, 2015. During this timeframe he resided with Ms. Palmer in Winnipeg. His parental leave afforded him the opportunity to spend meaningful time with his daughter and with Joryn. As result, he feels he has bonded with Joryn in a more significant way.
[52] In cross-examination Mr. Jaskiewicz was forthright in that the decisions concerning his employment will depend on the outcome of the trial. He was clear that it is his preference to maintain his employment with the navy. However, he acknowledged that his future decisions will depend on whether Ms. Palmer is permitted to move to Victoria.
Analysis
Material Change in Circumstances
[53] Ms. Palmer has raised a number of issues to support her claim that she can meet the threshold required to establish that a material change in circumstances has occurred. I will now address each issue in support of Ms. Palmer's claim.
Offer of Employment from Mr. Wong
[54] At least on the face of it, Ms. Palmer has received a very favorable offer of employment from Mr. Wong.
[55] However, I find it difficult to accept that the offer of employment from Mr. Wong, dated July 21, 2014, is in fact a bona fide offer. In my view, it is far more likely that the offer was made as a result of a favor to Mr. Bohhoslawec. It will be remembered that Mr. Bohhoslawec is involved in a common law relationship with Ms. Olsen, the mother of Ms. Palmer.
[56] Ms. Palmer completed a nominal amount of work for Mr. Wong, which was described as two projects requiring editing for a limited amount of hours. In the offer of employment, Mr. Wong describes the work completed by Ms. Palmer as part-time work, "Through your part time work with our company you have demonstrated a high level of organization and the attention to detail that we require." I do not accept that the two work projects by Ms. Palmer amount to what can be classified as "part-time work."
[57] Of further concern are the misrepresentations found in the offer of employment. The offer clearly states that Ms. Palmer will be eligible for bonuses, stock options and health benefits. Mr. Wong acknowledged that none of these are currently in existence. This gives rise to the distinct impression that these extras were simply included to make the job offer appear to be more enticing and thereby strengthen Ms. Palmer's claim.
[58] The offer of employment is dated July 21, 2014. Mr. Wong stated his business workload is increasing and he therefore requires an employee to assist him. Despite his evidence he has made no efforts to find an employee other than Ms. Palmer. He is willing to further extend the current offer for a further 90 to 120 days.
[59] Mr. Wong's offer is "contingent on your ability to relocate to the vicinity of British Columbia", but is not contingent on Ms. Palmer being in Vancouver. Mr. Wong testified that it is important that he be able to deal with Ms. Palmer in person and have her make a connection to potential clients. Despite this, he did not foresee her residing in Victoria as posing an obstacle. He felt she could commute one to two times per week to Vancouver.
[60] Despite the fact that Mr. Wong has an increased workload he has made no efforts to try and find an employee in the vicinity of where his business is located. There is no evidence that he has advertised or made any attempts to hire any other individual other than Ms. Palmer. The position being offered is essentially an administrative role, with the promise of it becoming something more (with no real concrete evidence of what the position could grow into). I find it difficult to accept that if Mr. Wong truly required administrative support he would not have made efforts to hire someone already. The position being offered, given the remuneration and the hours, would undoubtedly attract many qualified applicants from the Vancouver area.
[61] There is case law in which a parent's relocation for employment has served to meet the burden of establishing a material change in circumstances. I do not find that to be situation here. It must be remembered that Ms. Palmer's primary plan for her career path is to complete her current degree and then pursue a second degree in the social work field. This is not a situation where Ms. Palmer has made efforts and simply cannot find employment in her field. While Ms. Palmer is enrolled in school her intention is to find part-time work. Therefore this cannot be viewed as a situation where the only available employment to Ms. Palmer is employment in Vancouver.
[62] There is an obligation and expectation that Ms. Palmer would seek employment in the City of Winnipeg. Her evidence is that since the birth of her daughter she has not sought employment as her focus has been on her parental role. There was no evidence placed before me to establish that Ms. Palmer has made any meaningful attempts to seek employment in Winnipeg or that she has any desire to do so in the immediate future. Further, this is not a situation where evidence was led that Ms. Palmer's intention is to abandon her educational plans because she has found employment that she intends to be her long-term employment. A move for a temporary, part-time position with no efforts to find comparable employment in her current location cannot be sufficient to establish a material change in circumstances. I must bear in mind that Ms. Palmer's primary objective is to complete her education and pursue a career in social work. She maintained this position at trial. As a result, any employment with Mr. Wong is, at best, short-term employment.
[63] For all of these reasons, I find that this very favorable, flexible, seemingly open-ended offer of employment has been crafted specifically for Ms. Palmer to assist her with her claim before the court.
[64] As a result, I am unable to conclude that the offer of employment amounts to a material change in circumstances. In my view, it is not a bona fide offer.
Education
[65] At the time the last Order was entered into on a consent Ms. Palmer was in attendance at the University of Manitoba in the same program she continues to be enrolled in as of the present date.
[66] Her educational pursuits have not changed. It is her intention to stay on the same educational path whether in Winnipeg or in Victoria. The fact that she has been accepted to a similar program in Victoria does not constitute a material change in circumstances. Her educational pursuits were both known and foreseeable at the time the Consent Order was entered into.
Parenting Issues
a) Aggressive Behavior Displayed by Joryn
[67] Joryn is 7 years old. The school identified some behavioral issues and has put in place a plan to address and correct the problematic behavior. From the evidence of Ms. Palmer the plan appears to be achieving the desired goal.
[68] Joryn experiencing behavioral issues cannot be tied to any one factor. On the second day of trial Ms. Palmer was able to inform both the court and Mr. Bongfeldt that Joryn has now been diagnosed with ADHD.
[69] Most importantly the appropriate remedial actions have been undertaken. The school has put in place an appropriate plan and Joryn is enrolled in play therapy in Winnipeg, Manitoba. He will now have a specialist who he is set to see in April of 2015.
[70] It was Ms. Palmer's evidence that she has always known Joryn has displayed symptoms of ADHD, her evidence was as follows: "Joryn has had ADHD symptoms since he was almost a baby, it is part of who he is".
[71] Therefore, while the official diagnosis may be new, the behavioral issues have very clearly be known to Ms. Palmer for quite a significant period of time, even before the parties separation.
[72] The behavioral issues that have been identified do not constitute a material change in circumstances. Based on Ms. Palmer's evidence this is not new information, it was known at the time of the Consent Order.
b) Parenting Concerns
[73] Ms. Palmer has outlined concerns with how Mr. Bongfeldt is parenting Joryn. I have reviewed the emails that have been filed as Exhibits by Ms. Palmer (Exhibit 1.11). I find that the emails from Ms. Palmer and the responses from Mr. Bongfeldt are appropriate. In Ms. Palmer's viva voce evidence she attempted to portray Mr. Bongfeldt as not responding to her questions and concerns. In reviewing Mr. Bongfeldt's response to Ms. Palmer's questions and/or concerns as found in the emails dated April 12, 2014, June 2, 2014 and August 9, 2014, I have found his replies both responsive and appropriate.
[74] I do not find that any of the parenting concerns that Ms. Palmer has testified to establish a material change in circumstances. Ms. Palmer must recognize that Mr. Bongfeldt is entitled to a different parenting style than the one she employs in her own home. There was no evidence to support the contention that Mr. Bongfeldt is not meeting the day–to-day needs of Joryn when he is in his care.
[75] It appears that many of the specific incidents that have been raised by Ms. Palmer, (for example, bug bites, concerns over a winter jacket, use of a pocket knife, etc.) can likely be resolved if the parents were able to increase their ability to communicate in a more co-operative fashion. This is a case where Ms. Palmer has sole custody and therefore the inability to communicate effectively with one another has been in existence for some time. As such the inability to communicate with one another was foreseeable and known to both of the parents.
[76] More importantly, I find that the difficulties in communication have long been in existence between the parents. It was evident that the parties did not have the foundation for a joint custodial arrangement that requires parents to have the ability to communicate effectively and co-operatively for the benefit of their child. Since that was not in existence for these parents both agreed the appropriate order was for the mother to have sole custody.
New Partner
[77] Ms. Palmer now has a child with her current partner. Her new partner has a permanent residence in Victoria, British Columbia. It is clear that the motivation to relocate is to reside with her partner and form a new family unit. This is the driving force behind the Motion to Change. Mr. Jaskiewicz employment does not allow him the opportunity to relocate to where Ms. Palmer resides.
[78] When the January Order was entered into Ms. Palmer was not only in the dating relationship with Mr. Jaskiewicz, she was also aware of her pregnancy. Therefore the fact that she now has a child from a second relationship does not establish a material change.
[79] Ms. Palmer has put forward that her new partner has established a stronger bond with Joryn and that this should be viewed as a material change in circumstances. I cannot accept that position. It is entirely foreseeable that Mr. Jaskiewicz would have a more prominent role in Joryn's life given the fact that at the time of the January 9, 2014 Order, Ms. Palmer and Mr. Jaskiewicz were expecting a child of their own and were engaged. Under the circumstances, it would be concerning if Mr. Jaskiewicz did not have a close bond to Joryn. Given the intention of Mr. Jaskiewicz and Ms. Palmer's intention to marry, Mr. Jaskiewicz is assuming a step-parenting role to Joryn and should have a close bond to him given the responsibilities and role he has assumed.
[80] Ms. Palmer's desire to relocate and start a new life with Mr. Jaskiewicz is understandable. This does not lessen the threshold that must be met in order for a court to have the jurisdiction to vary an existing order. At the time that the current Order was entered into, it was known (as acknowledged in the preamble) that Ms. Palmer was in a long distance relationship and pregnant with a child.
Elizabeth Olsen
[81] Counsel for Ms. Palmer has put forward that the grandmother's intention to reside in either Vancouver or Victoria is a factor to be taken into consideration to establish a material change in circumstances.
[82] Ms. Olsen's own evidence is that there is no established timeline for when she may actually reside in either Vancouver or Victoria. Her evidence is that it has always been her intention to move there and at some point this is likely to occur. Ms. Palmer's request is to move to Victoria as soon as possible. Given that Ms. Olsen has no set timelines of when she will be a resident in Vancouver I do not accept that the fact that at some point in time Ms. Olsen may reside in Vancouver is a driving force behind Ms. Palmer's desire to relocate to Victoria.
[83] This is not a situation where Ms. Palmer has put forth that she requires the assistance of a third party in order to meet the needs of Joryn. To the contrary, and to Ms. Palmer's credit, she has effectively parented Joryn as a single parent without any issues arising. There is nothing to suggest that Ms. Palmer cannot meet Joryn's needs without the assistance of others.
[84] No evidence has been put forward that an unforeseeable change has occurred that now requires Ms. Palmer to have the assistance of her mother in order to parent Joryn.
[85] The mere fact that Ms. Olsen may at some unknown time in the future reside in Vancouver does not meet the burden of establishing a material change in circumstances. At the time of trial it is still unknown when and if that plan will actually come to fruition. More importantly had Ms. Olsen had a firm plan to relocate at the date of the last court order I do not find that it would have resulted in a different consent order being entered into by the parents.
Preamble to the Order of January 9, 2014
[86] The test to establish a material change in circumstances requires that there be something that was not foreseeable or could not have been reasonably contemplated at the time the Order was made.
[87] A rather comprehensive preamble formed part of the Order of January 9, 2014, effectively putting on notice situations that were both foreseeable and could reasonably be contemplated.
[88] Of all of the issues that have been raised by Ms. Palmer the two issues that were not covered in the preamble is that of the job offer and Ms. Olsen's ill-defined plan to relocate to Vancouver. As stated above, I have found that the job offer is not a bona fide offer to Ms. Palmer. Rather it is a strategic move put together by Ms. Palmer's family to try and establish a material change in circumstances.
Decision
[89] In summary, Ms. Palmer has not been able to establish that a material change in circumstances has occurred. Each issue that she has proposed to prove a material change in circumstances was both known and foreseeable at the time that the Consent Order of January 9, 2014 was entered into or simply does not meet the criteria needed that would have altered the Consent Order had it been known at the time the last order was entered into.
[90] The Motion to Change is therefore dismissed.
[91] Counsel for Mr. Bongfeldt has indicated that should the Motion to Change be dismissed the relief sought in the Response to Motion to Change will not be pursued further. In essence Mr. Bongfeldt is prepared to withdraw his pleadings. As a result, the Response to Motion to Change is dismissed.
[92] In the event that costs are an issue Ms. Palmer shall file written submission (limited to three pages) within 30 days of the release of my reasons. Mr. Bongfeldt shall file any response (limited to three pages) within 15 days of receipt of Ms. Palmer's submissions. Ms. Palmer shall submit her reply within 5 days after receipt of Mr. Bongfeldt's submission (limited to one page).
Released Electronically: July 30, 2015
Signed: "Justice Cleghorn"