B. v. B. Date:, 2011 BCPC 434

Citation: B. v. B. Date: 20111212 2011 BCPC 0434 File No: F62710 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: T.R.B. APPLICANT AND: J.L.H.B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE COWLING Counsel for the Applicant: Kristin Rongve Counsel for the Respondent: James M.W. Cudmore Place of Hearing: Nanaimo , B.C. Date of Hearing: November 7, 2011 Date of Judgment: December 12, 2011 [ 1 ] The Applicant, Mr. B. is 32 and employed full-time. [ 2 ] The Respondent, Ms.

B. is 30 and the mother of the parties’ child, D.B. born [DOB]. She is also the mother of N.T. born [DOB]. [ 3 ] The parties met in Fort McMurray, Alberta, in August of 2008 at a time when neither was in a relationship. Mr. B. was working in a remote community many hours away from Fort McMurray and Ms. B. was working in Fort McMurray as a store clerk with some part-time work as a cleaner. His residence was in the remote community and hers in Fort McMurray.

They began a dating relationship at that time with frequent telephone and internet contact and were together in person 2 to 3 times a month for 2 days at a time. [ 4 ] In October 2008 Ms. B. lost her store clerk employment due to the economic downturn but continued to support herself with baby-sitting and house-cleaning work and support from her parents. She and her son, N.T., lived in low-income assisted housing. In August of 2008, she had obtained an order for child support from the father of N.T.

To date approximately $8,000 has been paid pursuant to that order and about $18,000 is in arrears. [ 5 ] On December 26, 2008, Mr. B. proposed to Ms. B. and she accepted. The parties never set an actual wedding date. [ 6 ] In August of 2009, the parties relocated from their respective residences to a remote community in Northern B.C. where Mr. B. had been given a new posting which included housing. It was understood that there would be little or no employment opportunities for Ms. B. at this location. The evidence indicates that the parties made this move in expectation of living together in a marriage-like

relationship. [7] This relocation provided the parties with their first real opportunity to be together on a consistent daily basis and unfortunatelythe quality of their relationship did not live up to their expectations. It is possible that they might have gotten off to a better start if theyhad commenced cohabitation under different circumstances but in any event their relationship encountered problems which I wouldassess as not the fault of either one. [8] During an upturn in their affections Ms. B. became pregnant with D.B. This does not appear to have been a planned pregnancy.

Conception is estimated at around late March, early April and the expected due date was December 27, 2009. [9] Episodes of emotional distance and alienation continued notwithstanding the pregnancy and about 40-50% of the time they sleptin separate rooms. In early November Ms. B. left to visit with her parents on Vancouver Island. She testified that she intended to returnto Terrace to have their baby but that D.B. arrived early and was born in Nanaimo on December 6, 2010. Mr. B. was distressed to missthe birth of his son. [10] The parties returned to Northern B.C. in early January of 2011 with the mother of Ms.

B. living with them as well. Theycontinued to be unhappy and counselling only temporarily helped. [11] They separated on February 24, 2011, by mutual agreement, and the Respondent returned to Vancouver Island with the twochildren where she resides on her parent’s property. [12] The Applicant arranged a one-time transfer to the Nanaimo area with his employer arriving in mid-July of 2011. This was toenable him to be closer to his son. He has paid child support for D.B. since the separation. [13] This application was initiated by Mr. B. for increased access to his son.

The Respondent has replied seeking various reliefincluding maintenance for herself and her older child. Maintenance for D.B. and a joint custody order in his regard is not disputed. Certain aspects of Mr. B’s access to D.B. are in issue.

MAINTENANCE [14] The Applicant says that the Respondent is not entitled to support for herself and N.T. as the parties did not live together in amarriage-like relationship for a period of at least 2 years. [15] The Respondent relies on certain emails between the parties and the engagement of December 26, 2008, to establish a “marriage-like” arrangement from the Fall of 2008 to the date of separation in February 2011.

LAW [16] The parties have cited various cases relative to the issue of “marriage-like relationship” with the leading cases being: Takacs and Boucher v Gallo BCCA; Roach v Dutra 2009 BCSC 229; JLS v DW 2010 BCSC 1537; DLM v REG 2004 BCSC 364.

DECISION ON MAINTENANCE ISSUE: [17] I consider that having regard to the various criteria set forth in the case law and in particular in the reasons of Huddart, J.A. inTakacs at paragraphs 37 through 48, that a marriage-like relationship between the parties in this case has at most been establishedbetween August, 2009 and February, 2011. [18] The Respondent has relied heavily on the emails and engagement in attempt to lengthen the period but I consider they fall shortof doing so.

The emails present as impetuous and an effort at courtship while trying to sustain a long distance dating relationship. [19] The engagement in this case does not take place in the same context as in the Roach v Dutra decision. The “conduct” of theparties as opposed to the words between them does not begin to support a “marriage-like” relationship until August of 2009. The emailsmay have had more relevance if the replies of the Respondent had been included although again this would be more a matter of wordsthan conduct as per Takacs paragraph 40.

Prior to August of 2009 the parties maintain separate residences, separate finances and are inonly intermittent physical contact. During this time they are each self-supporting and do not acquire assets together nor share householdresponsibilities. [20] For the above reasons, I find that the claim for maintenance for the Respondent and N.T. fails and is accordingly dismissed. ACCESS AND JOINT CUSTODY AND GUARDIANSHIP ISSUES [21] The Applicant has a work

schedule that is known well in advance and has him work two 12-hour day shifts followed by two 12hour night shifts with a break of 4 days before the next cycle. [22] The Respondent has been breast-feeding D.B. and says that he does not use a crib but sleeps with her at night. The parties liveapproximately 30 kms apart now that the Applicant has moved to Nanaimo, B.C. This is said to be about a 40 minute drive. [23] The Applicant has no other children and no specific child care experience. He has been permitted to see D.B. on the second and

third of his day’s off for two 3-hour periods each day. Between the 3-hour visits he is required to return D.B. to the Respondent ostensibly for feeding purposes. The Respondent says that breast-pumping is not an option. The Respondent does not have a vehicle of her own but has the use of her mother’s vehicle. The Respondent also has concerns that Mr. B’s access with D.B. has some impact on N.T. who apparently does not have much contact with his natural father. The evidence indicates that during the cohabitation of the parties, N.T. sometimes got along very well with Mr. B. at other times did not.

It is possible that when the parties are out from under the stress of litigation and the recent upheaval in their lives they may enjoy more positive interaction to their mutual benefit. The parties should try to come up with some plans or strategies to integrate N.T. into some aspects of Mr. B’s access with D.B. This might initially include all four of them going to or doing some activity together. [ 24 ] Making an order as to access by Mr. B. to D.B. is complicated by the following factors:

a) The very tender age of D.B.;

b) Mr. B. does not have a history of caring for a very young child;

c) Mr. B. does not have an apparent child-care support system in place to supplement his lack of experience;

d) The distance between the parties. [ 25 ] In many cases where there is a family separation, each parent has been involved with the care of the child prior to the separation and their post-separation care for the child in an access context is just an extension of the pre-separation experience. During the early infancy of D.B., Mr. B., through no fault of his own, had minimal opportunity to establish such a pattern of care before the February separation. [ 26 ] Counsel have not referred the Court to any guidance in the case law as to recommended levels of access in such a situation.

I have attached as an addendum to this judgment an extract from the State of Indiana Access Guidelines which presents as reasonable.

They are intended as a general guideline and should be modified to suit the specific circumstances of the child and the parties as necessary. [ 27 ] Rather than making a specific order as to access at this time, I intend to provide some observations and directions to the parties in the hope that they can build on this to arrive at a consensus or at least better focus the points that need intervention to resolve. [ 28 ] As a supplement to the Guidelines that I have mentioned, I would recommend that the parties, or at least Mr. B., consult with a child-care professional such as Ms. A. Collum (M.A. Ed., E.C.

E) who is the Executive Director of the “Little Ferns Early Learning Centre” in Nanaimo for suggestions as to age-appropriate access and activities. [ 29 ] Mr. B. may wish to consider volunteering at a day-care establishment or “job shadowing” other parents of a child of similar age of D.B. to better develop his skills in this area. It would also be advisable for him to try and establish contacts and resources for child- care logistical support when he does have access to assist in making this work as well as possible. [ 30 ] A resource such as Ms.

Collum could also assist the parties with developing a longer-term access plan and with resolving any access issues that might arise from time to time. [ 31 ] At a preliminary level the Court would suggest that the best days for Mr. B. to have access are the 2nd, 3rd and 4th of his days off and that he use the 1 st day off to rest up and attend to other matters. [ 32 ] With respect to certain logistical aspects of access the court would assume that the parties have cell phone contact numbers and also email ability to make arrangements. [ 33 ] With respect to driving arrangements, I would suggest that Mr.

B. should be responsible for 75-80% of the driving as he has his own car, no other child care responsibilities, a very fixed work

schedule and a better financial position than Ms. B. One longer trip each way may be more restful for the child than a half-way transfer. CHANGE OF RESIDENCY PROVISION [ 34 ] The Applicant has stable employment which provides good financial security for D.B. There is limited flexibility for the Applicant to make transfers with his work and he has been told that he has exhausted his transfer possibilities with the move from Northern B.C. to Vancouver Island.

It is possible that with the passage of time he might recover some consideration in this regard but his would not appear to be the case in the short term. [ 35 ] The Respondent has a grade 9 education and more limited work skills and experience. She recently completed a 2-day traffic control course and hopes to have some income from that to supplement the child support she receives in addition to family benefit payments and support from her parents.

Her parent’s residence is well-established in the Central Vancouver Island area and in the short- term she would appear to have as many job opportunities in this area as elsewhere.

In this area she also has the advantage of her parents to assist with the care of the two children when she does work. [ 36 ] The Respondent does plan to upgrade her education and in the longer term and as the two children both enter the school system it is conceivable that she may wish to relocate to improve her employment and financial independence prospects. [ 37 ] I consider that while a child is under four this is a particularly important time for parental bonding and in the circumstances of this case there will be an order that for the next three years the Respondent may not change the residence of D.B. from the Regional District of Nanaimo except with the prior permission of Mr.

B. or of the Court. [ 38 ] After that three year period there will be an order that the Respondent must give Mr. B. 90 days notice of any intention to change

the residence of D.B. The issue would then be open to discussion and resolution between them in a like manner to any major decision as contemplated by their joint custody and guardianship order. [ 39 ] In providing for access the best interests of the child are paramount. Such interests may include health and wellness in the short- term and balancing that with maintaining a good bond with both parents and all siblings over the long-term.

It is important for both the custodial and access parent to be respectful of their mutual concerns and issues in this area and to be flexible and co-operative where it is in the best interests of the child. [ 40 ] I would concur, subject to input from a professional such as Ms.

Collum, with the remarks in the commentary to the Indiana Guidelines as to overnight parenting time and that frequent and predictable parenting time is of more benefit than less frequent-longer duration visits. [ 41 ] I agree with the remark in the commentary: “When a parent has not provided regular hands-on care for the child prior to separation, overnight parenting time is not recommended until the parent and the child have developed a predictable and comfortable daytime caretaking routine.” [ 42 ] The parties may wish to investigate whether a short visit could be arranged when Mr.

B. is in transition between his day and night shifts. This might take place for example on every second transition period in addition to such access as may be scheduled during the 4-day break. [ 43 ] I direct that the parties attempt to work out an access

schedule over the next 45 days from the entry of this judgment for a duration of at least one year. If they cannot agree or mediate this issue in that time, each can submit a written proposal with such submissions and supporting material as they consider appropriate. In making their

schedule proposal the parties should consider the likelihood that rather than attempt to reconcile or find a compromise position between the proposals, the Court will adopt in total the proposal that presents as the more reasonable of the two. If the parties think it may be helpful, a family-case conference regarding access could be arranged before me through the Judicial Case Manager. BY THE COURT ________________________________ The Honourable Judge J.D. Cowling