M.R. v. L.J-R. Date:, 2012 BCPC 402

Citation: M.R. v. L.J-R. Date: 20121029 2012 BCPC 0402 File No: F63927 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: M.R. APPLICANT AND: L.J-R. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Appearing in person: Mr. R

Counsel for the Respondent: N.B. Evans Place of Hearing: Nanaimo , B.C. Dates of Hearing: June 26, August 31, October 11, October 25, 2012 Date of Judgment: October 29, 2012 [ 1 ] Ms. J-R and Mr. R met in May, 2003, moved in together in July, 2003, and married in 2007. When they decided to have children, they agreed that Mr. R would be the breadwinner and that Ms. J-R would be a stay-at-home mom. They have two sons, ages 4 and 7, and a daughter, age 2. Ms. J-R left the relationship in September, 2011. There is no prospect of reconciliation. The children have resided with Ms.

J-R since the separation. [ 2 ] On May 31, 2012, I ordered that Mr. R pay child maintenance in the amount of $959 per month and spousal maintenance in the amount of $350 per month. I then embarked on a trial of the issues of guardianship, custody and access. Pending my decision on those issues, the children have remained in the custody of Ms. J-R. Mr. R has taken them for access visits at his home on weekends. Because of the level of animosity between the parties, they have exchanged the children at the police station at the beginning and end of each access visit. [ 3 ] Mr.

R seeks an order for joint guardianship and joint custody, and that the children reside with each parent in alternating weeks. Ms. J-R seeks an order for sole guardianship and sole custody, and that Mr. R have an order for access, limited to daytime only on two days per month (with provisions for statutory holidays). [ 4 ] In most cases, a close relationship with each parent is important for the emotional health and development of the children. Close relationships are fostered by frequent, consistent contact between parent and child.

For that reason, except in unusual circumstances, it is the duty of the custodial parent to facilitate and encourage frequent and consistent access by the non-custodial parent: Goesen v. Goesen BCSC unreported, March 14, 1994, Prince Rupert Registry #8702 @ page 9.

If one parent is willing and able to do that, and the other is not, it may be appropriate to award custody to the parent who is willing and able to foster the relationship between the children and the other parent. [ 5 ] There are cases in which the personal qualities of a parent render that parent an unsuitable care-giver for a particular child, or for children in general. In those cases, one must seek to craft access conditions which will adequately protect the child, or, in extreme cases, deny access altogether. Fortunately, this is not such a case.

On the contrary, the difficulty in this case is the hostility of the custodial parent, Ms. J-R, for the non-custodial parent, Mr. R. It is so intense and pervasive that the children must be conscious of it. Ms. J-R’s inability, or unwillingness, to let go of her anger at Mr. R is a material impediment to the healthy development of their relationship with their father, and, for that reason, poses a threat to the emotional health of her children [ 6 ] The last sentence of the preceding paragraph is exemplified by the manner in which Ms. J-R chose to conduct this trial.

Her evidence consisted of a lengthy recitation of matrimonial grievances, few of which have anything to do with Mr. R’s capacity as a parent or with his relationship with his children. For example, Mr. R purchased an engagement ring in 2004 and gave it to Ms. J-R. There were insufficient funds in his account to honour the cheque, which was returned to the jeweller by the bank. As a result, the jeweller seized the ring when Ms. J-R took it in for adjustment. She then purchased it with her own funds. I appreciate the significance of an engagement ring and the emotional distress which this incident caused to Ms.

J-R. She is entitled to be resentful. However, it has nothing to do with Mr. R’s capacity to parent. It is not a reason to deny the children an opportunity to have a close and loving relationship with their father. As a custodial parent, it is Ms. J-R’s obligation to put it out of her mind, and to foster the children’s relationship with Mr. R, whatever she might think of him. She owes that to her children. There were many similar examples in Ms. J- R’s evidence. It does not matter whether the allegations are true. The point is that they should not be made unless they reflect, in a material way, on Mr.

R’s capacity to parent: Abbott v. Abbott 2001 BCSC 323 @ paragraph 25. I do not mean by this that a party should refrain from cross-examination directed to issues of credibility. I do mean that parties to a custody and access dispute owe it to their children to refrain from gratuitous mud-slinging. [ 7 ] I must now assign to myself the task which I have given Ms. J-R. That is, I must put aside my irritation at the manner in which Ms. J-R conducted her case, and turn my attention exclusively to the best interest of the children. [ 8 ] I begin with the question of custody.

Joint custody is a viable option only if the parents are able to parent cooperatively: S.M.M. v. J.P.H. 2011 BCSC 1084 @ paragraphs 186 – 187. Mr. R and Ms. J-R have demonstrated that they are not. If they were the only parties, it might be useful to decide who is most at fault for that, and to award the prize (custody) to the parent least at fault. However, the interests of the children are paramount. The question is not whether one parent is more at fault than the other, but rather which parent is better able to provide an appropriate home for the children. In this case, the answer is that Ms.

J-R is better able to provide an appropriate home than is Mr. R. That is true for the following reasons: a. Stability and consistency are very important to children, particularly young children. It is not generally desirable for children to live in two different houses, alternating weeks. Such arrangements are usually too disruptive to the routines which are important in the lives of young children. In this case, the problem is exacerbated by the hostility between the parents. b. The children have been living with Ms. J-R for more than a year. Her house is home for them. c. Mr. R travels frequently for his work.

His work hours are irregular. He will not be able to provide consistency and routine for the children.

[ 9 ] Joint guardianship, on the Master Joyce model, requires less cooperation than joint custody: S.M.M. v. J.P.H. @ paragraphs 231 – 232 . I see no reason to deprive the children of the benefit of Mr. R’s voice on guardianship issues. There will be an order for joint guardianship on the following terms: a. the parents are to be joint guardians of the estates of the children; b. in the event of the death of either parent, the remaining parent will be the sole guardian of the persons of the children; c. Ms. J-R will have the obligation to advise Mr.

R of any matters of a significant nature affecting the children; d. Ms. J-R will have the obligation to discuss with Mr. R any significant decisions which have to be made with respect to the children, including significant decisions concerning the health (except emergency decisions), education, religious instruction, and general welfare of the children, and Mr. R will have the obligation to discuss these issues with Ms.

J-R, and each parent will have the obligation to try to reach agreement with respect to those major decisions; e. in the event that the parents cannot reach agreement with respect to any major decision despite their best efforts, Ms. J-R will have the right to make such decision, and Mr. R will have the right, under s. 32 of the Family Relations Act , to seek a review of any decision which he considers contrary to the best interests of the children; f. Ms. J-R shall advise Mr.

R of the names of the children's medical and dental practitioners; and g. each parent will have the right to obtain information concerning the children directly from third parties, including teachers, counsellors, medical professionals and third-party caregivers. [ 10 ] That leaves the question of access. Ms. J-R is opposed to overnight access because of past incidents in which, she says, Mr.

R: a. lost his temper with the children and called them names; b. swatted the boys on the back of the head; c. picked up the elder son by placing his hands on either side of his head and hoisting him in the air; d. lifted the boys by one arm and slapped them on the backside; e. brought the children home smelling of urine and MacDonalds; f. left the children unattended in the back yard while Mr. R was in the shower.

Assuming, without deciding, that all of these allegations are true, they are not sufficiently serious, individually or in the aggregate, to justify a decision to deny the children the opportunity for normal interaction with their father, including overnight visits. Certainly, the conduct alleged is inappropriate. I have no doubt that Mr. R understands that any future similar conduct is likely to invite renewed interest on the part of the Ministry of Children & Family Development, and may prompt an application by Ms. J-R to vary the access order which I am about to make.

However, I observe that the Ministry, after making enquiries, has not thought it necessary to intervene, and that the children have survived 6 months of regular weekend visits with Mr. R without suffering any harm. I cannot conclude that the children will be at risk when in the care of Mr. R. [ 11 ] Ms. J-R submits that Mr. R’s access should be limited because he is in arrears in payment of child and spousal maintenance. With rare exceptions, I do not consider that to be a relevant factor in relation to guardianship, custody or access. That is because the emotional health of the children is the paramount concern.

If, as in most cases, frequent, consistent visits with the non-custodial parent are conducive to the emotional health and development of the children, the children should not be denied that benefit because of the default of the non-custodial parent. Children should not be punished for the delicts of their parents. In some cases, it may be possible and useful to extract payment from a deadbeat by denying him access to his children, but that is a tool to be used with great caution because of the risk which it poses to the children. Mr. R is not a deadbeat.

His fiscal acumen appears to be limited, but that is a problem which can be managed in other ways. [ 12 ] Ms. J-R has registered the maintenance order with the Family Maintenance Enforcement Program. I have no doubt that they will take appropriate steps to ensure compliance with the order. [ 13 ] Mr.

R will be entitled to unsupervised access on the following schedule: a. every second weekend, commencing November 3, 2012, from 9:30 a.m. on Saturday to 4:00 p.m. on Sunday; b. from 1:00 p.m. on December 25 to 4:00 p.m. on December 26, each year; c. from 9:30 a.m. on Good Friday until 4:00 p.m. on Easter Monday, each year; d. from 5:30 p.m. on the last Friday in July to 4:00 p.m. on the third Friday in August, each year. Given the nature of his work, it is likely that Mr. R will, from time to time, experience difficulty in exercising all of the access rights granted by this order.

When that occurs, it would be appropriate and helpful for Ms. J-R to cooperate in arranging make-up access periods, with the objective of fostering Mr. R’s relationship with the children. [ 14 ] Because Mr. R is no longer represented by counsel, it is appropriate for me to tell him that spousal maintenance is usually transitional, and that the spouse receiving maintenance is expected to make reasonable efforts to become self-sufficient. Mr. R may think it appropriate to apply for a review of the spousal maintenance order in the latter part of 2013.

October 29, 2012 ______________________________ T. Gouge, PCJ