T.M. v. J.B. Date:, 2013 BCPC 405

Citation: T.M. v. J.B. Date: 20130820 2013 BCPC 0405 File No: 17380 Registry: Kitimat IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: T. M. APPLICANT AND: J. B. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. F. M. JACKSON Appearing on their own behalf: T. M. Appearing on their own behalf: J. B. Place of Hearing: Kitimat , B.C.

Date of Hearing: August 1, 2013 Date of Judgment: August 20, 2013 Background [ 1 ] The parties were in a relationship that ended in September of 2010. [ 2 ] During the relationship the parties had two children, ATB, born [omitted for publishing] and RJB, born [omitted for publishing] . [ 3 ] There was a Court Order February 3 rd , 2011 which stated that neither party shall remove the two children from the Terrace Kitimat area without the written permission of the other party.

The Order also stated that the Order might be set aside on 14 days notice and a change of circumstances was not necessary for a review of the Order. [ 4 ] On March 2 nd , 2011 there was a second Order that the parties shall have shared custody and guardianship (as it was then called). Secondly, the Order stated that neither party should consume or be under the influence of non-prescription drugs in the presence of the children nor allow others to be so. [ 5 ] On September 9 th , 2011 there was a third Court Order which restated a shared custody of the children.

It continued to reaffirm joint guardianship and then specify the rights of the parents as to information and consultation on decisions affecting the children. [ 6 ] On December 8 th , 2011 there was a fourth Court Order that repeated that the parents had shared custody of the children “on a

schedule to be agreed to between the parties.” This Order also stated that neither party would be in the presence of the children under the influence of alcohol and finally it provided that ATB would attend school unless he was unable to do so due to health or other agreement between the parties. [ 7 ] Apparently, the parents were able to mutually agree to the parenting time for a period after that. On August 30 th , 2012, the parties signed an agreement concerning ATB and RJB’s school schedules. This was part of Exhibit 1.

It provided that TM would be responsible to take ATB and RJB to and from school on the following days: ATB: Monday, Tuesday and pick up only on Friday; RJB Tuesday. It further provided that JB would be responsible to take the boys to and from school on the following days: ATB: Wednesday, Thursday and drop off only on Friday; RJB: Thursday. [ 8 ] Until February 2013 both parties lived in Kitimat. In February 2013, TM moved to Terrace where she lives with her parents. [ 9 ] In March of 2013, TM brought an Application to vary the earlier court Orders as to the parenting time and parenting responsibilities.

Evidence [ 10 ] TM testified that after her move from Kitimat to Terrace she continued to abide by the agreement of August 30 th , 2012. She indicated that she drove the boys back and forth from Terrace to school and pre-school in Kitimat. [ 11 ] TM testified that all this driving was both expensive and potentially dangerous in the winter. She added that she did not apply to change the arrangement earlier as she “didn’t want to break up their school schedules.” [ 12 ] TM referred to the August agreement in the first page of Exhibit 1. She continued through Exhibit one’s attachments.

Page 2 was a school record of ATB’s absences and “lates” for the school year in Kindergarten. She indicated the large majority were when JB was responsible to deliver ATB to school. [ 13 ] TM went through page 4 of Exhibit 1 which was RJB’s attendance records at the Kitimat Child Development Centre. She pointed out that JB was responsible for 6 of 9 what the court takes to be either absences or “lates.” [ 14 ] TM briefly reviewed the other four pages of Exhibit 1.

These consisted of receipts for her medical treatments that required JB to take ATB to school for her, a receipt for swimming lessons for ATB and RJB she had arranged and an extract from ATB’s report card that “it would also be beneficial to ATB to consistently wear his glasses to school”. [ 15 ] The above mentioned pages of Exhibit 1 were to corroborate her oral testimony as to the problems with Mr.

B’s ability to deliver ATB and RJB to school, that she had to arrange the extracurricular activities and a dispute the two had over ATB being instructed to leave his second pair of glasses at school. [ 16 ] TM then testified that her extended family of aunts and uncles were available to the children in Terrace. [ 17 ] TM testified that her work

schedule would allow her to personally deliver and collect both boys from school or pre-school. As well, she testified that JB worked Monday through Friday which made it impossible for him to either personally deliver or collect the boys from school or take them to after-school weekday activities.

[ 18 ] She also advised that she works eleven p.m. to seven a.m. Monday through Friday each week. She suggested an arrangement whereby she would have parenting time Sunday at 6 p.m. until Friday at 6 p.m. during the school year and during school breaks JB could have the boys Sunday at 6 p.m. until Friday at 6 p.m. It was suggested that the parties could arrange between themselves the sharing of the major holidays such as Christmas, New Year and Easter.

Accordingly, the boys would attend school or pre-school in Terrace and live with her during the school week. [ 19 ] TM testified that the current division of the week was not consistent for ATB by breaking up his week and had “not helped him in school at all.” [ 20 ] In cross-examination, TM admitted that since the separation from JB three years ago, she had moved three times, as had JB. [ 21 ] TM accused JB of being careless as to whether ATB had the glasses he needed with him at school. [ 22 ] TM stated that both children spend “lots” of time with her extended family in Terrace.

Further in cross-examination, she indicated that the children have friends in Terrace. [ 23 ] RM, the mother of the applicant, testified that she and the applicant’s father have been married 35 years. She added that she has a good relationship with the boys and brings stability to their lives. She stated that although she didn’t initially think having the applicant and her two grandsons live with her would work, they are now all getting alone fine. [ 24 ] RM stated that she works Monday through Friday and gets off work at 3 p.m. and then takes over looking after the boys until 8 p.m. while the applicant slept.

Then the applicant would get up to be with the boys for supper, bath time and to put them to bed after which she would go to work. [ 25 ] JB testified that he wanted parenting time from Sunday at 6 p.m. until Friday at 6 p.m. His hours of work are 8 a.m. until 5 p.m.

Monday through Friday. [ 26 ] JB testified that he had actual parenting time with the boys Monday through Friday until February 2013, although that was an oral agreement to vary the August 2012 agreement. [ 27 ] JB stated that he had concerns over the parenting care of TM’s parents without giving any further detail aside from the fact that RM had a stripper pole in her house. [ 28 ] JB recited some of the conflict the he and TM had had since the separation such as when TM had allegedly assaulted him or sworn at him in front of the boys. [ 29 ] JB stated that in the 2013-14 school year ATB would be in a grade one class with his cousin and his step-sister (the child of CM). [ 30 ] In cross-examination, JB denied being about to move again or smoking in the boy’s home.

He indicated that in his residence the boys sleep in bunk beds while his step daughter sleeps separately in the same room. [ 31 ] In cross-examination he agreed that he had to buy a second set of glasses for ATB and that he instructed ATB to keep them at school as they often could not find his other set of glasses at home in time to take them to school. [ 32 ] EM, JB’s mother, testified that she had been involved in caring for RJB on a daily basis for the first two years of his life.

She described herself as having a “very happy relationship” with the boys but that they wouldn’t even acknowledge her if she met them with their mother (which TM denied during her question as part of the cross-examination). [ 33 ] CM, the fiancée of JB, testified as to disputes she and JB have had with TM including a recent incident at a park in the area. [ 34 ] CM described occasions when TM would ask JB and her to keep the boys extra time beyond the August 2012 agreement. This was often Monday through Friday and occasionally Sunday through Friday.

She added that ended in February 2013 when TM more rigorously followed the August 2012 agreement. [ 35 ] CM described her relationship with the boys as being “excellent”. She stated she regularly drove the boys to school, day care or other events and is the contact person for the school if there are minor incidents with ATB. Analysis [ 36 ] As per

section 37 of the Family Law Act the Court must consider the best interests of the children. In the case at hand the mother of the children has relocated from Kitimat to Terrace.

Section 65 of the Family Law Act applies to such situations.

The formal notice requirements have not been complied with but the Court attributes no “bad faith” to that procedural error as the parties are self- representing and she has continued to abide by the pre-existing agreement of August 2012. [ 37 ] Section 69(5) of the Family Law Act also requires the Court to consider the best interests of the children as stated in s.37 as well as whether the relocating guardian is acting in good faith and the proposed arrangements would preserve the relationship between the children and other guardians and people entitled to contact [s.69(4)]. [ 38 ] It is also clear from the evidence that currently, the parties have substantially equal parenting time.

The onus is thus upon the relocating parent (TM) to establish that the move is in the best interests of the children.

[ 39 ] The Court is satisfied that the move was made in good faith and a weekday/weekend split may be reasonable and workable. However, it is still necessary to determine the best interests of the children under s.37. [ 40 ] Section 37(2) states that the Court must consider the following factors to determine the best interest of the child:

a) the child’s health and emotional well-being,

b) the child’s views unless it would be inappropriate,

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 the guardians to exercise their responsibilities,

g) the impact of family violence,

h) whether the actions of the person responsible for family violence indicate that that person’s ability to care for the child is impaired,

i) the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child,

j) any civil or criminal proceedings relevant to the child’s safety. [ 41 ] There is no evidence before the Court that residence in either Kitimat or Terrace would negatively affect the children’s health or emotional well-being. [ 42 ] The children are too young to choose where to live or to be placed in a situation of having to “pick sides”. [ 43 ] It appears the boys have healthy relationships with both parents, CM, and despite lesser contact, with their maternal grandparents and paternal grandmother as well as extended family. [ 44 ] The history of the child care is that the boys always lived in Kitimat until the weekly split between Kitimat and Terrace commencing in February.

The parenting time has been to date largely equal. [ 45 ] At their young ages, ATB born in 2007 and RJB born in 2009, have a great need for stability. TM suggested that the switch of residences in mid week was detrimental to ATB’s school performance. [ 46 ] While TM suggested that JB was not able to fully exercise his parental responsibilities due to his work schedule, CM is able to assist in that regard.

As well, JB described a weekday routine of himself playing with the boys after work, followed by supper, bath time and bedtime. [ 47 ] There is no evidence of family violence aside from an allegation against TM that was terminated concerning s.37(g)(h)(

j) and accordingly, the Court gives it no weight. [ 48 ] The parties have since the separation worked together, albeit with some friction, in arranging the affairs of the children. There is no evidence that the requirement of future cooperation would increase any risks to the safety of the children. [ 49 ] In conclusion, the Court is not satisfied that relocating the children from Kitimat to Terrace would be in their best interest.

The children’s routine is in Kitimat and as TM said, the break-up of ATB’s school week has not helped him in school at all. [ 50 ] There are adequate resources such as extended family in both Kitimat or Terrace for the children but the need for the stability provided by staying in the school and preschool the boys already attend combined with the extended family of a cousin and step-sister in the same classroom lead the Court to conclude that the children should remain in Kitimat. [ 51 ] The next issue to determine is whether the current agreement of August 2012 should be maintained or whether the parenting time should be defined in another manner. [ 52 ] Both parents have requested parenting time Sunday 6 p.m. to Friday 6 p.m. during school days and the opposite during Spring and Summer breaks.

It is clear that a stable routine is in the bests interests of the children on school days. Accordingly, the Court finds that the children should reside with JB during the school week. Decision Final Order

[ 53 ] Both parties are guardians of the children ATB, born [omitted for publishing] and RJB born [omitted for publishing] . [ 54 ] The parties shall have equal parenting responsibilities including the following rights:

a) to be informed of the children’s medical and dental practitioners;

b) to contact the children’s medical and dental practitioners and to obtain the children’s medical and dental records;

c) to be consulted with respect to the selection of the children’s alternate caregivers, such as daycare and preschools;

d) to be consulted with respect to the selection of the children’s schools and school programs;

e) to consult with the children’s alternative preschool and daycare provider and teachers;

f) to be informed of events at the children’s schools, preschool or daycare so that the parties may attend;

g) to be informed of parent/teacher nights so that the parties may attend;

h) to be consulted with respect to any significant health issues relating to the children; and

i) to be consulted with respect to any significant change in the children’s social environment. [ 55 ] Should the guardians be unable to agree on the exercise of any parenting responsibility the guardians may refer the matter to the Court for decision. [ 56 ] Commencing September 1 st , 2013, JB shall have parenting time with both boys from 6 p.m. Sunday to 6 p.m. Friday during school weeks. During those weeks, TM shall have parenting time from 6 p.m. Friday until 6 p.m. Sunday.

If there is a school holiday on the Monday of any school week, TM‘s parenting time shall be extended to 6 p.m. on the Monday. [ 57 ] During School Spring Break and School Summer Holidays, TM shall have parenting time from 6 p.m. Sunday until 6 p.m. Friday and JB shall have parenting time from 6 p.m. Friday until 6 p.m.

Sunday. [ 58 ] During the School Summer holiday JB on at least one month’s notice to TM given no later than April 30 th of each year may have two continuous weeks of parenting time with the children during that calendar year. [ 59 ] During the School Summer holiday TM on at least one month’s notice to JB given no later than June 30 th of each year may have two continuous weeks of parenting time with the children during that calendar year. [ 60 ] Neither party shall be impaired by alcohol or non-prescription drugs in the presence of either child. [ 61 ] All extraordinary expenses, such as extra-curricular activities, shall be shared equally. ___________________________ W.

F. M. Jackson Provincial Court Judge