S.H. v. G.M. Date:, 2010 BCPC 369

Citation: S.H. v. G.M. Date: 20101221 2010 BCPC 0369 File No: F13190 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: S. H. APPLICANT AND: G. M. RESPONDENT REASONS FOR JUDGMENT RE: ACCESS TRANSPORTATION OF THE HONOURABLE ASSOCIATE CHIEF JUDGE M. J. BRECKNELL Counsel for the Applicant: D. Kavka Appearing on his own behalf: G. Mann Place of Hearing: Prince George , B.C. Date of Hearing: October 25 and December 8, 2010 Date of Judgment: December 21, 2010 INTRODUCTION [ 1 ] In this Application, G. M. (Mr.

M.) seeks a court order requiring S. H. (Ms. H.) to equally share in the access transportation for their ten year old daughter, M. C. E. (M.) between Calgary and Prince George. [ 2 ] Ms. H. agrees that she should participate in some access transportation but objects to being required to share the entire access transportation equally. BACKGROUND HISTORY [ 3 ] In 2000, while they were both living in the Okanagan, Mr. M. and Ms. H. were involved in a brief casual relationship resulting in Ms. H. becoming pregnant with M. [ 4 ] Mr. M. wanted to be more involved with Ms.

H. during her pregnancy than she wanted him to be. Mr. M. only found out about M.’s birth after the fact. Ms. H. did not name him as the father on M.’s birth certificate. [ 5 ] Approximately six months after M.’s birth, Ms. H. moved with M. from Kelowna to Prince George without any prior notice to Mr. M. Mr. M. who was then also living in Kelowna took no legal steps to oppose the move and within a month or so later moved to Calgary for employment purposes.

[ 6 ] Mr. M. continues to reside in Calgary although his circumstances have changed as follows:

a) His employment has changed where he now earns far less than he did for several years in the past; and

b) He has married and his new wife is expecting a child very soon. [ 7 ] Ms. H. continues to reside in Prince George although her circumstances have changed as well:

a) She has finished her university education and is now employed as a teacher at a private school, the same school M. attends; and

b) She has married. [ 8 ] After a partially contested hearing on February 28, 2002, the Court made the following Orders concerning M.:

a) Mr. M. and Ms. H. would share joint guardianship on the Master Joyce model;

b) They would share joint custody of her;

c) Her primary residence would be with Ms. H.; and

d) Mr. M. would have specified and reasonable access. [ 9 ] That hearing was required because the parties disagreed in part on M.’s care and custody, and in part because they disagreed on the nature, type, duration, location and transportation issues surrounding Mr. M.’s access to M. [ 10 ] That set of circumstances, although changing in nature from time to time, has remained a constant problem between Mr. M. and Ms.

H. with M. caught in the middle of her parents nearly continuous acrimonious or at least uncooperative communications. [ 11 ] Since 2002, as a result of the parties differing views on access arrangements, the Court has had to intervene on several occasions. On August 24, 2007, after two days of hearing the Court put in place some extensive access Orders specifying the dates, duration, and locations of M.’s access to Mr. M., as well as partially directing on how M. was to be transported. At that time, due to direct flights between Prince George and Calgary, she was permitted to fly.

That situation did not last long due to airline scheduling and policy changes. [ 12 ] On August 24, 2007, the Court specifically reserved dealing with the issue of Ms. H.’s obligations to assist with travel to facilitate M.’s access visits with Mr. M. [ 13 ] It is that issue that brings the parties before the Court on this occasion, although there have been other outstanding matters scheduled but yet to be resolved, including:

a) A trial scheduled for March 2011 on Mr. M.’s Application to change M.’s residence from Prince George to Calgary on allegations of Ms. H.’s parental alienination, parental neglect and failure to follow Court Orders; and

b) Ms. H.’s application to review child maintenance paid by Mr. M. and to prohibit the parties from discussing this proceeding with, or in the presence of, M. THE PRESENT APPLICATION [ 14 ] The hearing of this Application is limited to access transportation arrangements. Mr. M. insists the Court should impose a permanent regimen in that regard. [ 15 ] Neither party wished the Court to in any way vary the access regimen, although by the end of the hearing they had agreed to such a variation as it applies to summer access. [ 16 ] In support of the Application Mr.

M. filed Affidavits dated March 18, 2010, June 15, 2010, October 15, 2010, and October 19, 2010. In addition, he gave viva voce evidence on October 25, 2010, and was cross-examined by Ms. H.’s counsel. [ 17 ] Ms. H. responded with Affidavits dated March 25, 2010 and December 1, 2010, and gave viva voce evidence on December 8, 2010, and was cross-examined by Mr. M. [ 18 ] Mr. M.’s evidence relevant to this Application can be summarized as follows:

a) Ms. H. has been particularly uncooperative in facilitating access between M. and him by refusing to equally share the transportation;

b) This refusal requires Mr. M. on many occasions to either drive from Calgary to Prince George and return at the beginning of and end of access, a time consuming and expensive venture complete with seasonal adverse driving conditions and lack of cell phone coverage for emergencies in some areas;

c) Ms. H. puts her own needs and desires ahead of M.’s and his; referring to her time as “precious” and that having to transport M. is an inconvenience she shouldn’t be subjected to regularly;

d) Due to changes in his employment both his available time and financial resources has been curtailed to the point that being forced to bear the majority of the burden to transport M. will result in a reduction of her time with him which could be overcome if Ms. H. bore an equal share of the transportation burden;

e) If both parents share the driving by meeting in Jasper (approximately half way) each could leave home in the morning and be back home in time for dinner (weather permitting);

f) The meeting times should be 12 Noon Mountain time. [ 19 ] Ms. H.’s relevant evidence to this Application can be summarized as follows:

a) Having just completed her schooling she has limited financial resources for transporting M. on all access occasions;

b) Her new employment curtails her availability to transport M. because she is often preparing for the following week’s classes;

c) The weather and road conditions between Prince George and Jasper can be very adverse making it unsafe for her to travel;

d) Her vehicle is very old, has a high odometer reading and maybe mechanically unreliable. This point was countered by Mr. M.’s assertion that his vehicle was in a similar condition;

e) She does not believe she should be obliged to share equally in the time or economic consequences of M.’s access to Mr. M.;

f) On the times she does assist with transportation the meeting time should be 12 Noon Pacific Time. [ 20 ] In addition to these points of evidence, the parties provided detailed accounts of their past communications and disagreements surrounding access arrangements but in addition their dispute about the nature and detail of information provided to M. by Mr. M. concerning these legal proceedings. [ 21 ] It is clear from all of the evidence that Mr. M. wants the Court to conclude that Ms.

H. is an uncooperative, selfish shrew, who has throughout M.’s life worked to undermine and interfere with her relationship with Mr. M. [ 22 ] In counter point, Ms. H. would like the Court conclude that Mr. M. is a calculating and persistent bully who puts his own interests ahead of all others and whose involvement of M. in the legal proceedings is detrimental to M. and her relationship with Ms. H. THE LAW Family Relations Act [ 23 ]

Section 24 of the Family Relations Act states in part: 24(1) When making, varying or rescinding an order under this part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors in give emphasis to each factor according to the child’s needs and circumstances:

a) the health and emotional well being of the child including special needs for care and treatment;

b) if appropriate, the views of the child;

c) the love, affection and similar ties that exists between the child and other persons;

d) education and training for the child;

e) the capacity of each person to earn guardianship, custody or access, rights and duties may be granted exercise those rights and duties adequately; Case Law [ 24 ] The parties referred the court to the following cases:

a) C.T. v. J.T. and B.A.S. 2007 BCPC 112 (CanLII) , 2007 BCPC 0112

b) McCaffrey v. Paleong 2009 BCSC 242

c) M.J.G. v. A.M.G. 2006 BCSC 1433

d) Hill v. McCracken 2008 BCSC 932

e) M. v. M. 2003 BCPC 75 (CanLII) , 2003 BCPC 0075

f) S.L.C. v. K.G.C. 2010 BCSC 349

g) G.W.Z. v. S.M.Z. 2010 BCSC 92

h) Dykens v. Horn 2008 BCSC 1588

i) Ruel v Ruel 2006 ABCA 170 SUBMISSIONS Mr. M.

[ 25 ] Mr. M.’s submissions can be summarized as follows:

a) Ms. H. moved from Kelowna to Prince George. That should oblige her to assist with access. That assistance should be an equal transportation obligation;

b) His later move to Calgary is irrelevant because the distances from Kelowna to Prince George and Calgary to Prince George are almost the same;

c) Ms. H.’s four reasons for refusing to participate equally in access transportation, namely finances, weather, automobile condition and work, are not supportable on the evidence and additionally are equally experienced by him. Ms. H. [ 26 ] Ms. H. submissions can be summarized as follows:

a) Her move to Prince George was not meant to deny access but rather to gain family support. Mr. M. did not object at the time and in fact moved as well;

b) Mr. M. should not demand or expect that Ms. H. should equally share the transportation just to convenience him and the Court should give regard to her stated concerns, particularly her lesser finances and her work preparation obligations;

c) Ms. H. is being as fair as she can be in the circumstance;

d) Mr. M. puts M. in the middle of matters by relaying all aspects of the proceedings to her and unfairly casting Ms. H. in a bad light when she doesn’t concede to his unreasonable demands concerning access transportation. COMPROMISES REACHED [ 27 ] Despite the acrimonious nature of their relationship and the proceedings before the Court, before the hearing concluded the following compromises were suggested to the Court by the parties:

a) That the pick up and drop off time for access be at 12 Noon Pacific time;

b) That the pick up and drop off location when transportation is shared should be the Petro Can Gas Station in Jasper, Alberta;

c) That for Christmas 2010 access transportation shall be shared equally and access will occur from Sunday, December 19 to Monday, December 27, 2010;

d) For spring break 2011, the access transportation will be shared equally and will occur on the

schedule set out in the Order of August 24, 2007;

e) For the summer 2011 access, the access transportation will be shared but access will be varied to provide for one access block to Mr. M. (rather than the two as set out in August 24, 2007 Order) although the actual length, commencement and times were not set out for the Court. DISCUSSION [ 28 ] Before addressing the Application before the Court and making orders in that regard, there are two topics that cry out for comment.

Coming from someone who spent 15 years practicing exclusively family law and ten years judging such cases, I would urge the parties to carefully consider this judicial guidance before another judge is called upon at a later date (after much time and depleted financial resources) to make orders. [ 29 ] Firstly, M. should be left entirely out of the loop when it comes to these legal proceedings.

She should occupy her time with pursuing her schooling, athletics, the arts, friends and Justin Bieber, and not have to be subjected to either parents’ views as to whether the other parent is or is not complying with this Court’s orders regarding maintenance, access or anything else. I am advised that Judge Dollis has already made such a direction and for clarity I make it again. [ 30 ] Second, just like M.’s lifestyle and needs required a variation in her time with Mr. M. in August of 2007, the fact is that the present Order probably does not best meet her needs now. While Mr. M. and Ms.

H. each spent much effort to demonstrate the level of inconvenience and hardship the access

schedule imposes on them, neither parent even mentioned what kind of hardship such transportation and frequency might have on M. A long weekend visit for her means two days in a car for a two day visit. [ 31 ] The parties made some progress in recognizing that less transportation may be better in agreeing to change the summer access frequency, but more cooperation needs to be demonstrated if they are genuine in keeping M.’s best interests first and foremost. [ 32 ] M. has the benefit of having a teacher as a mother and going to the same school that her mother teaches in.

This would allow M. to arrange to have school work assigned to be completed during access visits while school is in session, if longer and less frequent access occurred during the school year. [ 33 ] Turning to the Application itself, I conclude that the case law presented by the parties, although illustrative, is of limited assistance because I must conclude what is in M.’s best interests as required by

section 24 of the Family Relations Act , within the facts found in this case. [ 34 ] I reject Mr. M.’s request for a permanent access transportation order for the following reasons:

a) No order in a family case is ever permanent and in any event is not acceptable or permissible for me to fetter the discretion of a judge who will be hearing a trial in a few months hence;

b) There may be changes in the manner M. moves between her parents as she matures and becomes more independent and,

c) The financial situation of either parent may change making one or the other more or less able to contribute to transportation expenses of themselves, the other parent, or M. [ 35 ] I also reject Ms. H.’s position that I should relieve her of some access transportation due to financial considerations. There is no demonstrable evidence from either party concerning their income, expenses, finances or lifestyles, although Ms. H. provided a Financial Statement after the Application was heard.

I accept for the purposes of this Application what each says their income is and conclude that the differences are not so great as to require one to bear more of the cost of access transportation than the other. [ 36 ] I also do not accept Ms. H.’s other reasons for being unable to or unwilling to equally share access transportation, namely, weather, automobile reliability or time constraints. All of those factors apply equally to Mr. M.

The weather or vehicle issues are something M. has to experience regardless of which parent drives her. [ 37 ] That is not to say that the Court is unaware of, or unsympathic to, the concerns about weather and vehicle reliability. No court order regarding access transportation would require any parent to travel in dangerous conditions or in an unsafe vehicle. Waiting until the weather improves, or borrowing or renting a more reliable vehicle on occasion may be required. DECISION [ 38 ] This Court orders that:

a) Mr. M. and Ms. H. shall share access transportation by each ensuring M. is transported to the Petro Can Gas Station in Jasper by 12 Noon Pacific time for the start of or end of each access visit unless alternate arrangements are agreed to by the parties in writing at least 48 hours in advance;

b) For Christmas 2010 access, will commence on Sunday, December 19, 2010 and end on Monday, December 27, 2010;

c) Summer school vacation access commencing in 2011 will be for a continuous period of not more than 35 days as may be agreed upon between the parties but shall not start until at least one week after M.’s school term finishes in June and shall end at least one week before the school term resumes in September;

d) All remaining provisions of the August 24, 2007, Order continue until further order of the Court or as may be other wise agreed to in writing by the parties. [ 39 ] The Order may be drawn by Ms. H.’s counsel and provided to Mr. M. for signature. If Mr. M. fails to sign or return the Order within 30 days of it being mailed to him by counsel, counsel may set down an application to settle the terms of the order before me. __________________________ M. J. Brecknell Associate Chief Judge of the Provincial Court Judge