K.G. v. T.M. Date:, 2013 BCPC 228

Citation: K.G. v. T.M. Date: 20130828 2013 BCPC 0228 File No: 2878 Registry: Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: K.G. APPLICANT AND: T.M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. MROZINSKI Appearing for the Applicant: K.G.

Appearing for the Respondent: T.M. Place of Hearing: Nelson , B.C. Date of Hearing: August 22, 2013 Date of Judgment: August 28, 2013 Introduction [ 1 ] The applicant, K.G., seeks an order that he be granted parenting time with the child, A.G-M., from Sunday to Friday of each week and that the child’s mother, T.M. be granted parenting time with the child one day per week from Friday evening after the child’s school to Saturday evening at approximately 6:00 pm.

Alternatively, K.G. would consent to T.M. exercising her parenting time every second weekend. [ 2 ] T.M. opposes this order and seeks an order that the parties share parenting time equally. At present, by agreement, the parties by consent order dated January 24, 2013, agreed that T.M. will exercise parenting time with A.G-M. on a bi-weekly basis from Wednesday to Monday. K.G. exercises his parenting time for the remainder of the two week period. Under this arrangement, K.G. has A.G-M. for at least sixty five percent of the time.

As a result, K.G. also seeks an order that T.M. pay child maintenance in accordance with the Federal Guidelines. [ 3 ] Prior to the consent order of January 2013, the parties shared equally in the parenting of their child A.G-M. Background [ 4 ] K.G. and T.M. are the natural parents of A.G-M., born [DOB]. T.M. is also the natural parent of J.M., born [DOB]. K.G. and T.M. were living together in a common law relationship upon the birth of A.G-M. K.G. is the step father of J.M., though the two now appear to be estranged. [ 5 ] The relationship between K.G. and T.M. broke down in 2011.

There is no question on the evidence, particularly given the emphasis placed on it by K.G. in this hearing, that the relationship ended when T.M. began a relationship with a man with whom she now lives, and who is also the natural father of her infant child born [DOB]. [ 6 ] When K.G. and T.M. resided together as a couple, they shared the parenting of A.G-M. K.G. concedes that when A.G-M. was an infant, he was cared for mostly by T.M. It was not until about a year before the couple split in 2011 when T.M. was working out of the home that K.G. took a greater role in the parenting of his son.

At that time, K.G. was working in the home. [ 7 ] As I have noted, when the relationship ended, the parties agreed to share parenting time equally of not only their child, A.G-M., but also of J.M. At the time, A.G-M. was in school in Robson. K.G. moved to Nelson, while J.M.’s natural father lived closer to Nelson than to Robson. T.M. ultimately moved to Crescent Valley to be closer to both K.G. and J.M.’s natural father and enrolled A.G-M. at Brent Kennedy where he started in January, 2013. [ 8 ] Both parents describe A.G-M. as a delicate, sensitive child who is somewhat emotional.

T.M. added that her son was smart, gentle, open hearted, a good big brother and a frustrated little brother. K.G. described his son as a lot like himself. He considered A.G- M. to be a very active, caring, empathetic child, prone to take on a big brother role and, as far as K.G. was concerned, naturally inclined to vegetarianism. T.M. testified that when A.G-M. is with her, he eats meat. [ 9 ] Both parents accept that their son loves the other, is bonded to the other, and wants to spend time with both. [ 10 ] K.G.’s concerns and his reasons for bringing this application are as follows.

First, K.G., who has some financial means, has signed A.G-M. up for various extracurricular courses such as snowboarding, skateboarding, swimming, basketball and art classes. K.G. testified that A.G-M. might also be interested in gymnastics. He hopes to sign his son up for a number of activities so that A.G-M. can chose one or two that suit him. [ 11 ] K.G. maintains that though he has spent considerable money signing A.G-M. up for various classes T.M. does not follow through with them when A.G-M. is in her care.

K.G. concedes that he often has to push A.G-M. to attend these classes but when he does go he benefits from them. K.G. feels that T.M. does not make the same effort and T.M. does not wholly disagree. As for A.G-M.’s schooling generally, K.G. points to recent report cards indicating A.G-M. is improving as evidence that he is the more capable parent. [ 12 ] K.G. testified also that he does not feel A.G-M. gets enough exercise at his mother’s home, that he does not eat properly, and appears to have put on weight when he comes back to his father’s house after being with T.M.

K.G. is also sure that on at least one occasion this summer, A.G-M. was uploading inappropriate materials on his face book page at 2:00 a.m. while in the care of T.M. [ 13 ] K.G. wants A.G-M. to take religious studies and to read religious stories with good morals and values. He testified that he seriously doubted A.G-M. would be getting religious instruction at his mother’s home. T.M. does not seriously dispute that allegation. [ 14 ] T.M. testified that at her home, A.G-M. fits in fine with her blended family. At present, she lives with her partner, her older daughter, J.M., and her infant daughter.

From time to time, her partner’s son will stay at the home, as will his daughter. [ 15 ] While at her home, A.G-M. has his own room, though sometimes he will crawl into bed with her and her partner. This causes K.G. much concern and was the subject of a previous court order dated January 14, 2013, in which T.M. agreed to ensure A.G-M. slept in his own bedroom. In this trial, T.M. explained that sometimes if A.G-M. has a nightmare, he will lie down in her bed. In no way does he have contact with her partner.

[ 16 ] At T.M’s home, A.G-M. is sometimes watched after school by his older sister, J.M. T.M. testified that J.M. is qualified as a babysitter and helps out from approximately 3:00 p.m. or so after school until she can get home from work at 6:15 or 6:30 p.m. For the present, however, T.M. is home on maternity leave so that A.G-M. needs no care while she exercises her parenting time. [ 17 ] K.G.’s final and it would seem central concern lies in T.M.’s partner and his children. K.G. and T.M. both knew and socialized with T.M.’s new partner before they separated.

As I have noted, K.G. consistently pointed out that T.M. had an adulterous affair with her current partner while she was still living with him. I think it not unrelated to this fact that their separation has been acrimonious. It was evident from their conduct in court that the parties dislike one another intensely at this point in time. [ 18 ] K.G. testified that T.M.’s partner is a drug user, that his children, particularly his son, are feral, and that “if anyone is going to get lice or scabies, it will be in (T.M.’

s) house.” Having said that, K.G. admitted he had not been in T.M.’s home so could not judge its state of cleanliness. He admitted on cross examination that while he disapproved of T.M.’s smoking habit while they were together he otherwise had no concerns about her housecleaning or her care of their son A.G-M. [ 19 ] K.G. and T.M.’s partner have been involved in several violent altercations. K.G. agreed that after T.M. told him she was having an affair with the man who is now her partner, he confronted him. He admitted that A.G-M. was in his car as he went into the home of T.M.’s partner and a fight ensued.

He left with a bloody shirt and drove to T.M.’s work place with A.G-M. in the car where he then threw the shirt at her and told her it was her fault. [ 20 ] In another instance, T.M.’s partner threatened K.G. and T.M. and was charged and convicted of various offences including breach of an undertaking. [ 21 ] T.M. quite naturally has a different view of her current partner. She points out that K.G. used to allow her partner to care for A.G-M. when they were together, although on the evidence this did not occur often or for long.

In any event, T.M. attributes much of K.G.’s concerns regarding her partner to jealousy. She maintains, and in my view there is some objective basis for this given K.G.’s comments and conduct in court, that K.G. is angry with her and her current partner for their affair, and is even more angered by the fact she now has a child with this individual. [ 22 ] T.M. did not deny that her partner’s children, especially his son, may not be well behaved but maintains that she has little control over him as he lives mostly with his mother.

She testified that she did not approve of her partner’s son all the time but denied his conduct could be attributed to her. As far as her parenting, T.M. maintains that she is a good parent to A.G-M., that she loves him and he her. [ 23 ] T.M. does not wish to deprive K.G. of parenting time to the same extent sought by K.G. against her in this proceeding. Even despite their animosity, T.M. maintains that they can co-parent A.G-M. T.M. testified that she is prepared to take counselling and to try to find ways to work with K.G.

She is prepared to give him 50% of the child tax credit and to work harder to ensure A.G-M. goes to the programs K.G. has signed him up for, provided that K.G. consults with her first which she maintains is not now the case. [ 24 ] K.G. maintains that the current parenting arrangement is simply unworkable from his perspective. He can offer no suggestions for its future workability. The Law [ 25 ] The care of and time a guardian spends with a child is governed for the purposes of this application by

Part 4, s. 45 of the Family Law Act , SBC 2011, c. 25 (“ FLA ”).

Section 45 provides as follows: 45

(1) On application by a guardian, a court may make an order respecting one or more of the following: (

a) the allocation of parental responsibilities; (

b) parenting time; (

c) the implementation of an order made under this Division; (

d) the means for resolving disputes respecting an order made under this Division.

(2) An order under subsection (1) must not be made if the child's guardians are the child's parents and are not separated.

(3) The court may make an order to require that the transfer of a child from one party to another, or that parenting time with a child, be supervised by another person named in the order if the court is satisfied that supervision is in the best interests of the child. [ 26 ] In this case, the application is by K.G. for an order regarding the parties’ parenting time.

Section 45 does not preclude the court from making other orders such as orders regarding the means of resolving disputes. [ 27 ] Any order made under

Part 4 of the FLA must take into account the best interests of the child. For the purposes of determining best interests, the court must apply the factors set out in s. 37 which provides as follows: 37

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following: (

a) the child's health and emotional well-being;

(

b) the child's views, unless it would be inappropriate to consider them; (

c) the nature and strength of the relationships between the child and significant persons in the child's life; (

d) the history of the child's care; (

e) the child's need for stability, given the child's age and stage of development; (

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (

g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being. [ 28 ] The question in this case is whether it is in A.G-M’s best interests that he reside almost exclusively with his father, G.M. while leaving his mother, T.M., to enjoy what is essentially the equivalent of contact time under the FLA , or whether it is in the child’s best interests to be in the care of both parents for an equal or even relatively equal amount of time. [ 29 ] In making my decision, I make the following findings in regard to the factors that assist to inform the child’s best interest.

The child’s health and emotional well being [ 30 ] A.G-M. is by all accounts a healthy, reasonably active child who from time to time has to be pushed into attending his extracurricular activities. He apparently enjoys computer access and has a face book page. He is by all accounts adept in school work though not a reader. A.G-M. is from any objective view healthy and reasonably happy. [ 31 ] Aside from K.G.’s concerns about A.G-M.’s apparent lack of exercise, I find no basis in the evidence to conclude that A.G-M.’s health is in any way adversely affected by his care by T.M.

Emotionally, neither party described anything that would signal problems with A.G-M.’s emotional health in the care of either parent. However, given A.G-M.’s history of care which I will touch on in a moment, and the evidence of both parties who acknowledge their son loves them equally, I am satisfied that A.G-M.’s emotional well being would not be served by an order that would restrict his access to his mother along the lines sought by K.G. The views of the child [ 32 ] K.G. testified that he had grave concerns about A.G-M. being asked for his views on this matter.

Among other things, K.G. felt that A.G-M. was conflicted about his loyalties evidenced he thought by A.G-M.’s apparent discomfort when in the presence of both his parents. [ 33 ] T.M. entered into evidence an email note allegedly from A.G-M. to her in which he is said to have expressed a desire to spend more time with her. It is clear from the note, entered into evidence, that the writer is conveying his love and affection for T.M. and desire to see her.

I cannot find much more than that in the note. [ 34 ] In any event, the evidence of both parties indicates clearly that their son loves them equally and that he is conflicted. That fact alone would suggest that if his views were taken into account they would indicate that at least in this stage of his life he wants to please both parents and to spend time with each, probably in a way that minimized his own feelings of conflict. Nature and Strength of the child’s relationship with significant persons [ 35 ] The evidence indicates there are a number of significant persons in A.G-M.’s life.

There is his older sister, J.M. T.M. described A.G-M. as a somewhat frustrated younger brother, meaning, I suppose that he does not always get along with J.M. Nonetheless, J.M. does care for him on occasion after school and has been in his life since his birth. I accept there is a strong bond between the two. T.M. described A.G-M. as being a good big brother. I accept that he has a bond with his younger sister, T.M.’s infant daughter with her new partner. [ 36 ] A.G-M. is also very close to his paternal grandparents, particularly his grandmother.

They are said to live in Grand Forks and I have no doubt are bonded with their grandson. They see A.G-M. often when K.G. is exercising his parenting time. [ 37 ] A.G-M. is strongly bonded with members of both his maternal and paternal families. An order in line with that sought by K.G. will inevitably upset A.G-M.’s bond with his siblings on his mother’s side. History of Care [ 38 ] I have already noted that until the parties separated in 2011, A.G-M. was cared for by both parents but in his early years, largely by T.M.

Following their separation, the parties agreed it was in the best interests of A.G-M., that they share parenting responsibilities equally. It is apparent in the evidence that this arrangement broke down sometime late last year when K.G. learned of T.M.’s pregnancy.

[ 39 ] I accept T.M.’s evidence that she agreed to the parenting

schedule set out in the order of this court dated January 24, 2013, in which K.G.‘s parenting time was increased to nine days out of every two weeks, because of her pregnancy. T.M. testified that at the time she did not have extra energy for her son and thought it was in his best interests under the circumstances. Now that she has delivered her child and rested, she is prepared to resume the couples’ equal parenting schedule. The Child’s need for stability [ 40 ] There can be no question that at this stage of his development A.G-M. needs stability.

Both parents testified as to his innate shyness and each had a concern about his changing schools as an example. [ 41 ] K.G. testified that his home was the more stable and therefore better suited to the needs of his son. As for the change of schools which K.G. proposes if he is successful in this application, his evidence was that the new school he proposed was better and that A.G-M. had not been in his current school long enough to be too affected by the change. [ 42 ] However, if K.G. were successful, the change for A.G-M. would be much greater than simply changing schools.

In less than two years he will have gone from living with and being cared for by both parents, to being cared for equally by each while both parents were living separately and apart, to being cared for slightly more by his father, to being cared for almost entirely by his father and being placed in a new school. In my view there would have to have been much more evidence about the lack of care in T.M.’s home to justify such a dramatic change in the life of this child.

Ability to parent [ 43 ] Aside from the fact that these two parents do not get along, which fact I will address shortly, there is nothing in the evidence to suggest an inability on the part of either parent to parent A.G-M. Family Violence [ 44 ] While there is evidence of a violent dispute between K.G. and T.M.’s partner, there are no indications of violence between K.G. and T.M. such that this should be taken into account as a factor in determining where A.G-M. should live.

It is the case that K.G. put to T.M. that her new partner assaulted her but that charge was denied. [ 45 ] I see no reason to grant K.G.’s application based on any fear or concern for the safety of A.G-M. while in the care of T.M.

Co-operation between the Parties [ 46 ] This factor requires the court to consider the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well- being of the child or other family members. [ 47 ] The current relationship between K.G. and T.M. is strained such that communication is not good.

For her part, T.M. agrees the two could benefit from counselling and various courses, including “Parenting after Separation.” [ 48 ] I do not find that the couple’s having to cooperate would put A.G-M. at risk, merely that it will be difficult given their mutual animosity.

However, the FLA is structured such that while each guardian is exercising parenting time, that person will exercise defined parenting responsibilities such that the need to communicate can be minimized. [ 49 ] Of course, ideally, parents should communicate but in this case I am not convinced it is in the best interests of A.G-M. that his mother’s parenting time be reduced to 24 hours a week, or even every second weekend, simply because she and K.G. do not communicate well. [ 50 ] T.M. has indicated a desire to address that issue.

In that regard, I am satisfied that she is acting in the best interests of A.G-M. [ 51 ] One cannot help but be sympathetic to K.G. in that his relationship with T.M. ended in a way that must be difficult for him to accept. It would be inhuman not to at least understand why he is angry and why he sees fault with T.M.’s current domestic relationship. Objectively, however, K.G.’s concerns do not merit an order restricting T.M.’s parenting time as suggested or at all. [ 52 ] In my view, it is in A.G-M.’s best interest that he spend equal time with both parents.

This should alleviate any concerns he has about appearing disloyal to one or the other, they will share in his care equally. Other Orders [ 53 ] I have noted that it is open to this court to make ancillary orders pursuant to s. 45(1)(

d) regarding the means for resolving disputes respecting an order made under the Act . In this case, bearing in mind the parties’ history, I find it necessary to order that neither party may make any further application to this court without leave of the court unless and until one or both have availed themselves of the “Parenting After Separation” course, or otherwise attempted in good faith to have engaged in mediation, or with a family mediator or parenting coordinator. [ 54 ] I order that the parties share parenting time equally.

Unless the parties agree otherwise, the parties will exercise parenting time on a week on week off basis with pick ups and drop offs to be at A.G-M.’s school. [ 55 ] Otherwise, the parties will comply with the terms of the order of this court dated July 24, 2013. [ 56 ] K.G. is entitled to five days compensatory parenting time. Unless the parties otherwise agree, K.G. will exercise his compensatory parenting time during T.M.’s first week of parenting time granted pursuant to this order.

[ 57 ] T.M. has agreed to share the child tax credit equally with K.G. This court therefore orders that by consent the child tax credit shall be shared equally between the parties and T.M. will take whatever steps are necessary to ensure K.G. receives his portion of the tax credit when it is next due. [ 58 ] I make no further order regarding child maintenance. _________________ L.J. Mrozinski