D.D. v. R.Z., 2022 BCPC 208

Citation: D.D. v. R.Z. 2022 BCPC 208 Date: 20220916 File No: F-3985 Registry: [omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: D.D. APPLICANT AND: R.Z. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D.T. REEVES Appearing on their own behalf: D.D. Appearing on their own behalf: R.Z. Place of Hearing: [omitted for publication] , B.C. Date of Hearing: July 27-28, 2022 Date of Judgment: September 16, 2022

INTRODUCTION [ 1 ] Both parties were self-represented in this hearing and, as a result, the court was required to assist in regards to the procedure to be followed in calling evidence and to discern the actual relief sought. [ 2 ] D.D. and R.Z. are the parents of H.Z., born [omitted for publication]; R.Z.(2), born [omitted for publication]; and J.Z., born [omitted for publication]. [ 3 ] The parents separated in 2014 following an eight-year relationship.

The relationship between D.D. and R.Z. since their separation has been marked by accusations and counter-claims, exceedingly poor communication, and significant interruptions of parenting time caused by both parents. [ 4 ] Both parents continued to live in [omitted for publication - "Town A"] after the separation and engaged in shared parenting of the children until D.D. relocated with the children in September 2019, by consent, four hours south to [omitted for publication - "Town B"]. [ 5 ] This order was later varied, again by consent, in October 2020 to permit H.Z. to return to [Town A] and reside primarily with R.Z. [ 6 ] D.D. now applies to have H.Z. reside primarily with her in [Town B]; re-calculation of child support; confirmation of child support arrears; and, direction on shared extraordinary expenses. [ 7 ] R.Z. counterclaims seeking that all three children primarily reside with him; recalculation of child support; and the cancellation or amendment of child support arrears. [ 8 ] R.Z. and D.D. did reach consent to share extraordinary expenses on a 50/50 basis. [ 9 ] Guiding my decision on all of the matters to be decided is the maxim “best interests of the children”.

For the purpose of the matters before this court, the Family Law Act , [ SBC 2011]

Chapter 25 , ( FLA ), at ss. 37 and 58 , imposes this and requires this court to include consideration of specific factors set out at s. 37(2) : [ 10 ] Of great assistance to the court, a court ordered s. 211 Views of the Child Report dated June 1, 2021 (the VOC report) was entered into evidence. [ 11 ] Also of import is the indigenous status of the children, through their mother, with the [omitted for publication] First Nation.

I heard and received little evidence that either the children or D.D. currently enjoy a close relationship with their [omitted for publication] First Nation, however all apparently do have friends and contacts within the [Town A] First Nation. [ 12 ] Given the agreement with regards to extraordinary expenses, I will address the remaining questions in the following order: 1) Best Interests of the Child considering each Primary Residence ;

a) R.Z. as Primary Residence;

b) D.D. as Primary Residence;

c) The Views of the Child Report (VOC report); 2) What Primary Residence is in the Best Interests of Each Child; 3) Parenting Time and Arrangements; 4) Child Support between the parties; 5) Child Support Arrears BEST INTERESTS OF THE CHILD CONSIDERING EACH PRIMARY RESIDENCE R.Z. As Primary Residence [ 13 ] D.D.’s position is that R.Z. has an unsafe home for the children due to alleged drug use and his work schedule, which takes him away from the home for weeks at a time. [ 14 ] D.D. called A.D. as witness.

A.D. was a recent partner of R.Z., and is the mother of their two-year-old daughter. [ 15 ] A.D. provided a two-minute audio recording and transcript made surreptitiously by her several years ago of her and R.Z. She testified the recording was made while R.Z. was consuming drugs in the presence of their daughter.

A.D. admitted she herself intends to seek treatment for her addictions, and that their shared child has been primarily living with R.Z. since the age of two months due to A.D.’s addiction issues. [ 16 ] A.D. was argumentative and evasive, demonstrably biased, and otherwise had difficulty in formulating responses to questions. I

give very little weight to the evidence provided by A.D. due both to her bias and lack of credibility and reliability. [ 17 ] D.D. also called W.B., her stepfather, as a witness to support her position that R.Z. was not fit to parent any of the children due to his work

schedule that required he spend the majority of his time working in camps. [ 18 ] W.B. testified that he and D.D.’s mother currently perform the majority of parenting to H.Z.; that they live on the [Town A] Reserve of which W.B. is a member; and, they share a close and supportive relationship with H.Z. [ 19 ] W.B. declined to make any negative statements regarding R.Z.’s ability to parent, was both credible and reliable, and I accept all of his evidence. [ 20 ] R.Z. testified that he lives in a seven-bedroom home in [Town A] together with H.Z. and the two-year-old daughter he shares with A.D.

R.Z. is a heavy equipment operator and up until recently would normally work in remote camps, however, due to his seniority, he is now able to select jobs that permit him to spend more time living at home and caring for the children. [ 21 ] R.Z. admitted that he has a criminal record for drug related offences for which he spent almost a year in custody, but asserted that he has not had dealings with the justice system following his release and probation approximately 14 years ago. [ 22 ] Regarding his living situation and ability to care for the children, R.Z. was generally credible and I accept this evidence as reliable. [ 23 ] R.Z. called as a witness his mother, S.S., who lives three houses away from R.Z.’s home. [ 24 ] S.S. and her husband divide their time between [Town A] and [omitted for publication] Lake, with the majority of their time in [Town A] as they keep several horses on that property.

S.S. enjoys good but infrequent contact with H.Z. as she is somewhat estranged from W.B. and his wife who are active in supporting H.Z. and his sporting activities. S.S. testified it is her desire to see more of all her grandchildren. [ 25 ] While giving evidence S.S. refused to speculate or draw conclusions contrary to either R.Z. or D.D.’s interests, and I find her both credible and reliable. [ 26 ] R.Z.’s current home is large enough to accommodate all of the children, he has significant community support from both his and D.D.’s parents, and he is able to vary his work

schedule in order to take on a greater role in parenting the children himself. Given the evidence heard, I find that R.Z. maintains a residence that would not be unfit as a primary residence. D.D. as Primary Residence [ 27 ] R.Z. suggested that D.D. maintains an unsafe residence for the children due to alleged drug related activity taking place out of her home. [ 28 ] R.Z. testified to an incident on September 11, 2020, that involved allegations made by H.Z. over the phone and, as a result, the local RCMP were contacted.

R.Z. entered into evidence several hand written notes authored by H.Z. alleging this drug activity and describing subsequent efforts by D.D. to encourage him to lie to investigators. D.D. agreed the notes were written just prior to H.Z. electing to return to live with R.Z. rather than remain living in her home. [ 29 ] D.D. strongly denied the accusation that she or her partner are engaged in drug related activities and provided a partially redacted police report indicating that no evidence of criminal activity was found following a brief investigation.

She also provided a letter from the Ministry for Child and Family Development (MCFD) indicating that no further action following an assessment into allegations her children may be at risk as these allegations were deemed unsubstantiated. [ 30 ] R.Z.’s mother, S.S., in her testimony told the court that she had no concerns for the well-being of either R.Z.(2) or J.Z. living with their mother, and in fact commended D.D.’s parenting of the children.

S.S. told the court she was present during the September 11, 2020, phone call by H.Z. and could hear what sounded like a door being broken down during the call, but refused to speculate further. [ 31 ] R.Z. also suggested that D.D. was failing to abide by previous court orders, specifically that she had moved her residence several months earlier and failed to inform him, and that she was interfering with his parenting contact with R.Z.(2) and J.Z. [ 32 ] S.S. also advised the court that following D.D. relocating her home within [Town B] all contact had been cut off between her and R.Z.(2) and J.Z., both in person and by phone or digital means. [ 33 ] D.D. testified that she works as a part time dental assistant, but anticipates taking

part in a certification program through her employer that upon completion will see her working full time and for higher pay. D.D. recently gave birth to a new child with her current partner who is a gas plant operator working a week-on/week-off

schedule that does not involve living away from the home. D.D. and her partner maintain a four-bedroom home in [Town B] and all children have a room of their own. D.D.’s two brothers and their families also live in the community. [ 34 ] D.D.’s recent home is also large enough to accommodate all of the children, she too has community support from her brothers and their families, and both she and her partner maintain employment with work schedules that permit them to support all of the children.

Although the allegations H.Z. made regarding drug activity taking place in the home are concerning, given the lack of evidence found within either police or MCFD investigations, I cannot conclude that D.D. maintains a residence that would be unfit as a primary residence. The Views of the Child Report (VOC report); [ 35 ] The oldest of the three children is H.Z., who is described in the VOC report as friendly and confident. He enjoys a variety of

school subjects and sports and wishes to attend university upon his high school graduation. H.Z. is very active in [Town A] hockey andbaseball depending upon the season. [36] H.Z. enjoys a very close relationship with his maternal grandmother and step-grandfather, W.B., who are very positive influencesupon him. H.Z. has less contact with S.S. and his maternal grandfather, but is close to his father, R.Z. [37] H.Z. has a good relationship with his mother, D.D., and his younger sister and brother with whom he maintains ongoing contactvia phone, text, and social media, and visits approximately once per month.

It was noted in the VOC report that H.Z. reported movingback to live with his father in October 2020 to be closer to family and his friends, and no mention of alleged drug activity was made.

TheVOC report concludes by noting that H.Z. wishes to remain living with his father, and the court has also heard that he has expressed adesire to have more in person contact with his mother and siblings. [38] The middle child and only daughter, R.Z.(2), is described in the VOC report as a shy and anxious preteen with a small group offriends in [Town B] and a larger group of friends in [Town A]. [39] R.Z.(2) has good relationships with both her mother and her father, but asserts that they are “always fighting” and she is upset atthe negative atmosphere they both maintain regarding the other.

R.Z.(2) does not see as much of her father as she would like, either inperson or via digital means, but wishes to remain living with her mother in [Town B]. [40] The youngest child, J.Z., is described in the VOC report as a talkative and kind child who enjoys his elementary school classesand varied sports, and has many friends in both [Town B] and [Town A]. [41] J.Z. has a better relationship with his mother than with his father. J.Z. also has a good relationship with his maternal grandparents,but particularly with his grandpa, W.B.

He too wishes to remain living primarily with his mother D.D. in [Town B], but also desiresgreater time in [Town A] in order to see his father, maternal grandparents, and friends. II WHAT PRIMARY RESIDENCE IS IN THE BEST INTERESTS OF EACH CHILD [42] Section 37(2) of the FLA sets out a non-exhaustive list of considerations that must be addressed in determining all of the child’s,or children’s, needs and circumstances. These include: 37

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

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 towardthe 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 tocare 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 familymembers; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being. [43] In determining the best interests of the child, or children, the Court is required to consider the best interests in the long term andnot simply the short term (A.A. v. S.N.A., 2007 BCCA 363, paras 27 and 28). [44] So long as contact between a child and a parent is not contrary to the child’s best interests, this contact is to be encouraged to thegreatest extent possible (Young v.

Young, (SCC). [45] Where, however, a child’s needs are best met by remaining with the current custodial parent, notwithstanding the resultingreduction in contact with the other parent, this loss in maximum contact should be accepted (Gordon v. Goertz, (SCC),at para 25 (Gordon)).

Applying the reasoning in Gordon I find that this resultant reduction of contact with the other parent appliesequally to any resultant loss of contact with a sibling, and thus a reduction in contact between brothers and sisters may still be found to bein the child’s – or children’s – best interests. [46] In considering the factors set out at s. 37(2) of the FLA, and the law as I’ve stated above, I find that the current custodialarrangements are in the best interests of the children H.Z., R.Z.(2), and J.Z., and should not be disturbed.

All three children areuniversally reported as healthy and emotionally well cared for in the current situation. All of the children are doing well in school andreport post secondary goals consistent with positive long-term development and well-being. The children all hold deep and positive

relationships with both their parents, extended families, and communities, and, while they enjoyed living in a much closer arrangement with both parents until 2019, they have all adapted to their new environments. [ 47 ] Although I have heard various allegations related to drug use or involvement in the drug world, allegations which are in themselves serious and would likely form significant grounds to find a change in the circumstances by any subsequent court, no family violence is alleged and I find no substantiated allegation that impacts the children’s safety, security, or well-being. [ 48 ] I have also considered the children’s views, as set out in the VOC report.

All the children report they wish to remain in their current living arrangements, albeit with greater parental time with the non-custodial parent and their extended family. The children also universally comment on the poor communication skills, interpersonal conflict, and negative behaviour of both R.Z. and D.D. III PARENTING TIME AND ARRANGEMENTS [ 49 ] In Falvai v.

Falvai , 2008 BCCA 503 , at para 42 , Madam Justice Smith for the court wrote “It is the responsibility of the custodial parent to facilitate meaningful access to the non-custodial parent that is in the best interests of the child.” [ 50 ] I find that this has not occurred here, by either R.Z. or D.D., and both should be ashamed of their conduct in this regard.

Both meaningful access and communication have in fact been either willfully neglected, or outright subverted, by both parents, and this action is most certainly not in the children’s best interests. [ 51 ] R.Z. only arranges for H.Z. to travel to [Town B] when required for dental visits and occasionally during major school breaks. [ 52 ] D.D. has not only failed to facilitate digital access between R.Z.(2), J.Z., and their father, but also has not facilitated any in-person access between them recently. In fact, D.D. recently moved her civic residence and failed to advise R.Z.

Moreover, by order of Judge McDermick on September 27, 2019, D.D. was to facilitate reasonable contact with the paternal grandparents and promptly reply to text and emails, which she has failed to do. [ 53 ] Both R.Z. and D.D. appear more interested in using access and communication as weapons against each other than in furthering their children’s best interests. [ 54 ] As neither R.Z. nor D.D. have been capable of attending to the best interests of the children in this regard, it falls to this court to impose parenting, conduct, and communication orders.

IV CHILD SUPPORT BETWEEN THE PARTIES [ 55 ] R.Z. suggested initially to the court that his income for 2021 was approximately $74,000. Following court direction, he did provide his 2021 Canada Revenue Agency Notice of Assessment (NOA), which in fact reveals his total income at line 150 for 2021 was $110,127. [ 56 ] R.Z. claimed hardship should the guideline table amount be imposed by this court, but provided little explanation for this position aside from the necessity for him to travel extensively in order to obtain work, thus incurring significant expenses for the purpose of securing employment income.

I note, however, that in his own evidence and submissions, R.Z. expects to reduce his travel requirements given his seniority within the industry and desire to parent his children more closely. [ 57 ] D.D. failed to provide her NOA to the court and, aside from a one page print-out purported to be from her employer showing a pay rate of $24.00/hour, only self-generated tax documents were provided. She advised the court that her income for 2021 was $27,554.75 and that she also received the Child Tax Benefit and GST rebates totalling another $15,218.08.

D.D. further advised that her household income, when her new partner’s income was included, was approximately $170,000. [ 58 ]

Section 24(

c) of the Federal Child Support Guidelines , permits this court to draw an adverse inference against a spouse who fails to comply with an order to provide financial documents as set out at s. 21. Both D.D. and R.Z. were ordered to exchange these documents by Judge Golinsky on October 29, 2020, and again on January 26, 2021. Further, R.Z. was previously directed by Judge Barrett on August 23, 2017, to submit his financial documents annually. I therefore do draw an adverse inference against both parties, which will be reflected in the order below. [ 59 ]

Schedule III to the Child Support Guidelines permits the adjustment of income for employment related motor vehicle travel expenses, which I find applicable for R.Z. As a result, I am deducting from his total income the $8,030 that he was permitted in his 2021 NOA. As a result, I find his total income for the purpose of child support to be $102,097. This will result in a Guidelines child support amount of $1,549 monthly. [ 60 ] I likewise find that D.D. is not accounting for what she is capable of earning, particularly given the contribution being made by her new partner to their household income.

Section 8 of the Guidelines requires that, where a spouse has the majority of parenting time with one or more children in situations involving two or more children, child support is to be determined by the difference between the amount each spouse would otherwise pay. I find in this situation, given the adverse inference present, that D.D. has an imputed income of $42,777. This will result in a Guidelines child support amount of $402 monthly. [ 61 ] D.D.’s child support amount subtracted from the amount owed her by R.Z. results in child support payable to her of $1,147 monthly.

V CHILD SUPPORT ARREARS [ 62 ] R.Z. applied to have his current child support arrears, which I find stand at $15,902.12, be either be reduced or cancelled pursuant to s. 174 of the FLA , claiming undue hardship. Little evidence was presented to the court regarding this purported undue hardship. What was heard, I reject as unreliable having drawn an adverse inference from his failure to provide financial documents as previously

directed. [ 63 ] I was provided no evidence of R.Z.’s efforts to comply with the ordered child support which, based upon Family Maintenance Enforcement Program documents accepted into evidence, has been in a negative balance since before 2014.

R.Z. argues that his current financial situation does not permit him to pay the majority or all of the outstanding arrears, however he has not provided any evidence of this and was vague and imprecise when describing his current financial situation. [ 64 ] In all of the circumstances I do not find it would be in the best interests of the children to cancel or reduce the child support arrears owed by R.Z. and, as a result, I order that the arrears be set as of today’s date at $15,902.12 , inclusive of statutory interest and penalties.

COURT ORDER [ 65 ] T he name and birth date of each child is as follows: H.Z. born [omitted for publication] R.Z.(2) born [omitted for publication] J.Z. born [omitted for publication] [ 66 ] The court is satisfied that D.D. and R.Z. are the guardian(

s) of the children under s. 39(1) of the Family Law Act . [ 67 ] The child H.Z. shall reside primarily with R.Z. [ 68 ] D.D. shall have parenting time with H.Z. consisting of no less than one weekend per month, plus ½ of all school breaks involving more than two consecutive school days, plus up to four weeks per summer commencing September 01, 2022.

R.Z. shall have all other parenting time. [ 69 ] R.Z. shall be responsible for the transportation of H.Z. during all exchanges. [ 70 ] The children R.Z.(2) and J.Z. shall reside primarily with D.D. [ 71 ] R.Z. shall have parenting time with R.Z.(2) and J.Z. consisting of no less than one weekend per month, plus ½ of all school breaks involving more than two consecutive school days, plus up to four weeks per summer commencing September 1, 2022, and D.D. shall have all other parenting time. [ 72 ] In addition to R.Z.’s parenting time, S.S. shall have contact with R.Z.(2) and J.Z. consisting of no less than one weekend every other month, commencing September 1, 2022. [ 73 ] D.D. shall be responsible for the transportation of R.Z.(2) and J.Z. during all exchanges with R.Z. and S.S. [ 74 ] Parental Responsibilities must be exercised as follows:

a) D.D. and R.Z. will have the obligation to advise each other of any matters of a significant nature affecting the child(ren);

b) D.D. and R.Z. will have the obligation to discuss with each other any significant decisions that have to be made concerning the child(ren), including significant decisions about the health (except emergency decisions), education, religious instruction, and general welfare;

c) D.D. and R.Z. will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions;

d) In the event that D.D. and R.Z. cannot reach agreement on a significant decision despite their best efforts, D.D. will be entitled to make those decisions regarding R.Z.(2) and J.Z., and R.Z. will be entitled to make those decisions regarding H.Z.

The other party will have the right to apply for directions on any decision considered to be contrary to the best interests of the child(ren), under s. 49 of the Family Law Act , but only upon leave of the court. [ 75 ] R.Z. is found to be a resident of British Columbia and is found to have a guideline annual income of $102,097. [ 76 ] D.D. is found to be a resident of British Columbia and is found to have a guideline annual income of $ 42,777 . [ 77 ] R.Z. shall pay to D.D. child support of $1,549 per month and D.D. shall pay to R.Z. child support of $402 per month.

The difference of the amounts, $1,147 , shall be paid by R.Z. to D.D. commencing on October 15, 2022 and continuing on the 15 th day of each and every month thereafter for as long as the child(ren) is/are eligible for support under the Family Law Act or until further court order. [ 78 ] For as long as the children are eligible to receive child support, the parties shall exchange: (

a) copies of their respective income tax returns for the previous year, including all attachments, not later than August 1 st each year; and (

b) copies of any Notice of Assessment or Reassessment provided to them by the Canada Revenue Agency, immediately upon receipt [ 79 ] By the consent of both parties, each shall pay 50% for the child(ren)’s special or extraordinary expenses. The following expenses will be special or extraordinary expenses: orthodontic treatment for H.Z. and R.Z.(2), sporting and other extracurricular activities for the children, and such other expenses as agreed to in writing by the parties. Both parties shall provide the other party proof of payment for the expense, and payment by the other party shall be made within 30 days.

[ 80 ] The arrears of support payable by R.Z. to D.D. are fixed as of September 26, 2022, at the amount of $ 15,902.12, inclusive of statutory interest if any. Repayment shall be set at $500 per month, commencing on October 15, 2022, and continuing on the 15 th day of each and every month thereafter until extinguished. [ 81 ] The parties shall make a real effort to be polite and respectful when communicating with each other, and shall not argue, or say or do anything negative or hostile, if the child(ren) can see or hear them [ 82 ] The parties shall not:

a) question the child(ren) about the other parent or time spent with the other parent beyond simple conversational questions;

b) discuss with the child(ren) any inappropriate adult, court or legal matters; or

c) blame, criticize or disparage the other parent to the child(ren). [ 83 ] The parties shall encourage their respective families to refrain from any negative comments about the other parent and his or her extended family, and from discussions in front of the child(ren) concerning family issues or litigation. ____________________________ D.T. Reeves, PCJ Provincial Court of British Columbia