M.B. v. T.W., 2022 BCPC 222

Citation: M.B. v. T.W. 2022 BCPC 222 Date: 20220729 File No: F-17685 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: M.B. APPLICANT AND: T.W. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CAMPBELL Counsel for the Applicant: H. Chahal Appearing in person: T.W. Place of Hearing: Port Coquitlam , B.C. Date of Hearing: July 18, 19 and 20, 2022 Date of Judgment: July 29, 2022 Maz

INTRODUCTION [ 1 ] T.W. (“Mr. W.”) and M.B. (“Ms. B”) are co-parents of Z., who is now [omitted for publication] years old. Ms. B. applies to vary the parenting time schedule. Currently, Mr. W. has parenting time with Z. on weekends from Friday evening to Sunday, except for the second weekend of the month. This

schedule is in place pursuant to a December 1, 2021 court order. [ 2 ] Ms. B. seeks to restrict Mr. W.’s parenting time due to her concerns about his parenting and the living conditions at his home. Ms. B. wishes to eliminate Mr. W.’s overnight visits and reduce his parenting time to daytime visits on alternating weekends. [ 3 ] Mr. W. is opposed to any reduction in his parenting time. He does not agree with Ms. B.’s concerns and submits that it is in the best interests of Z. to maintain the current parenting schedule. [ 4 ] Mr.

W. filed an application before the court seeking restitution for lost wages due to the time required for responding to court applications. However, at the outset of this hearing, he withdrew this application. [ 5 ] The key issue to be decided is the parenting schedule, which must be determined by considering the best interests of Z. For the reasons that follow, it is my view that Z.’s weekend overnight parenting time with his father should not be removed, but that his parenting time with Mr. W. should be on alternating weekends. The reasons are as follows. LEGAL FRAMEWORK [ 6 ]

Section 37 of the Family Law Act, S.B.C. 2011 c. 25 , requires that in making orders concerning the child, the only consideration for the court is the best interests of the child. The relevant factors include 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; and (

e) the child's need for stability, given the child's age and stage of development. THE EVIDENCE [ 7 ] Z. was born on [omitted for publication] and is now [omitted for publication] years old. Z. has been in the primary care of his mother since his birth. [ 8 ] Pursuant to a consent order on July 4, 2018, Ms. B. has all the parental responsibilities in

section 41 of the Family Law Act with the exception that Mr. W. has the right in

section 41 (

j) to receive information from schools and health care. Mr. W. wishes to change this order, but there is currently no application before the court to vary this order. [ 9 ] Ms. B. lives in Coquitlam with her current partner B.W., their young son [omitted for publication] and Z. Z. has a good relationship with B.W., who is actively involved in raising and caring for Z. [ 10 ] Mr. W. moved from the Coquitlam area to his mother’s residence in Chilliwack in January 2021. At the time, he told Ms. B. that it was a temporary arrangement and that he would find his own residence within a few months.

However, he continues to live at his mother’s home and has no immediate plans to move. [ 11 ] In seeking to change the parenting schedule, Ms. B. raises a number of concerns about the living environment at Mr. W.’s home. The residence is a two bedroom trailer-style home and Z. does not have his own bedroom. When Z. visits, he sleeps in Mr. W.’s bedroom and Mr. W. sleeps on the couch. Ms. B. says that the home is not clean. She says that when Z. wears white socks at Mr. W.’s home, he comes home with dirty socks. She suggests that Mr.

W.’s mother’s two cats urinate on Z. or his clothes as he has come home smelling of cat urine. She says that he comes home from visits with his father unkempt and unclean. [ 12 ] Mr. W. testified that the living conditions are safe and acceptable. Mr. W. says that he has a close relationship with Z. He described the activities that they do together on the weekends. Mr. W. has taken a number of parenting courses in recent months in order to foster his parenting skills. [ 13 ] It is my view that Ms. B. has not established that the living conditions in Mr.

W.’s home should result in a variation of the parenting schedule. Ms. B. has made assumptions or drawn conclusions based on her discussions with Z. and her observations of Z. when he comes home. However, there is very little direct evidence of the living conditions in the home, apart from Mr. W. who testified that the conditions are not unhealthy or unsafe. [ 14 ] In June 2021, Ms. B. contacted the Ministry for Children and Family Development social worker with her concern about the living conditions in the home. A social worker interviewed Z. and did an inspection at Mr. W.’s home.

The Ministry concluded that there was no child protection concern and that file was closed. While Mr. W. acknowledges that he cleaned the house prior to the Ministry inspection, there is very little evidence to support a conclusion that the house was unsanitary at other times. I conclude that the evidence does not establish that the living conditions at Mr. W.’s home are unsafe or unsanitary.

[ 15 ] Ms. B. and B.W. report that Z. has complained that he does not sleep well at Mr. W. They say that Z. expresses that he wants more time at home and that he does not have many toys at his father’s place. They report that he complains that there is no ceiling light in his room, and that his father makes him sleep in his street clothes rather than his pajamas. [ 16 ] Mr. W. does not agree with these allegations. He states that the ceiling light does not work but that there is a lamp in the bedroom. He says that Z. has many toys at his home.

He says that he does not force Z. to sleep in street clothes, but that Z. has requested on some occasions to sleep in his street clothes. I accept Mr. W.’s explanations with respect to these issues. [ 17 ] However, it is my view that the evidence establishes that Ms. B. has legitimate concerns about the clothing that Z. wears at Mr. W.’s home. She raised her concern that Mr. W. has dressed Z. in clothes that are too small for him. She sends Z. to the weekend visits wearing appropriately sized clothes and he has sometimes come back wearing clothes that are too small.

She has provided a photograph of Z. wearing jeans that appear to be uncomfortably small. She says that she raised this with Mr. W. but that the problem continued. Ms. B. sent a backpack with new clothing on one of the weekend visits, but Mr. W. felt insulted and returned the clothing unopened. While I do not believe that Mr. W. intentionally made Z. uncomfortable by wearing clothes that are too small. Mr. W. should ensure in the future that Z.’s clothing is suitable for him. CONFLICT [ 18 ] In the past, there have been periods of time when Ms. B. and Mr.

W. have co-parented peacefully and with respect for each other. However, in recent months their co-parenting has been impacted by extensive conflict. A few examples are as follows. [ 19 ] In April 2021, Ms. B. raised her concern that Mr. W.’s mother had been telling Z. about God. Ms. B. has the parental responsibility for making decisions about religion pursuant to

section 41 of the Family Law Act . She requested that Mr. W. ensure that his mother not discuss religion with Z. and that Z. not be shown a children’s TV show with Christianity themes. This led to an extended argument between Mr. W. and Ms. B. about whether Mr. W.’s mother could discuss religion with Z. [ 20 ] Mr. W. eventually acquiesced and advised Ms. B. in an email that he would respect Ms. B.’s wishes and that Z. would not be exposed to religion on his parenting time. However, after receiving this information, Ms. B. advised that she would not permit Z. to go on his parenting time with Mr.

W. at his home or in the presence of his mother. [ 21 ] This is an example of the unnecessary escalation of conflict by both parties. When Ms. B. exercised her parental responsibility with respect to religion, Mr. W. should have respected her wishes. When Mr. W. advised that he would respect her decision on the topic of religion, there was no reasonable basis for Ms. B. to withhold Z. from visiting his father’s home. [ 22 ] On another occasion, Ms. B. wanted to take Z. on one of Mr. W.’s parenting time weekends to visit her family in Merritt. Mr. W. did not agree with this request. This led to Ms.

B. sending several angry and demeaning emails, and telling Mr. W. that she would no longer permit Z. to speak to his father during the week. [ 23 ] After one of the confrontations, Ms. B. referred to Mr. W. as a moron, which was overheard by Z. This was a violation of the April 12, 2018 court order that neither party will speak negatively about the other party in the presence of the child. [ 24 ] There has also been significant conflict about other matters, including Mr. W. taking Z. on the highway to Chilliwack during the emergency flooding conditions in the Fraser Valley in late 2021. [ 25 ] Ms.

B. has also raised her concern about Mr. W. keeping Z. in his care after receiving a positive COVID test. Mr. W. felt that Z. should isolate with him as he had been exposed. Ms. B. called the police, who attended at Mr. W.’s residence. She said that she would pick him up immediately and Mr. W. responded that she could not enter his property and that he would call the police and have her charged with trespassing. [ 26 ] In another example, Ms. B. asked in May 2022 for Mr. W. to contribute to the cost of karate. This was required by court order. Mr.

W. refused, stating “you haven’t agreed to 50-50 parental responsibility”. It is not appropriate to breach a court order because the other party does not agree to a change in the parenting responsibilities. If Mr. W. wished to change the parenting responsibilities, he should address this through a court application. [ 27 ] There have been other problems in complying with court orders. Mr. W. acknowledges that he has not provided his tax returns and notices of assessment by the required deadline. When Ms. B. asked for the documents, Mr.

W. replied, “you will get it when you get it”. [ 28 ] These are a few examples of the recent conflict. The conflict is not in Z.’s best interests. It is likely that Z. has been negatively impacted by the conflict between his parents. In my view, both Mr. W. and Ms. B. should work on improving their communications so that they can have respectful, civil and healthy communications respecting Z. SHOULD THE PARENTING TIME BE CHANGED? [ 29 ] The key issue in this hearing is whether Mr. W.’s overnight parenting time should be eliminated and whether the parenting time

schedule should be varied to alternating weekends. [ 30 ] I accept that both Ms. B. and Mr. W. are dedicated and loving parents who are focused on the well-being of Z. I do not accept that the living conditions at Mr. W.’s home are unsafe or harmful to Z. It is my view that Z.’s weekend overnight parenting time with his father should not be eliminated. [ 31 ] Ms. B. and B.W. report that Z. makes comments about wanting to spend more time at home. [ 32 ] I believe that there is a need for caution in considering the testimony of Ms. B. and B.W. with respect to what Z. has told them.

They have an interest in the outcome of this hearing, as Ms. B. is seeking to have Z. spend more time at home. [ 33 ] While I approach this evidence with caution, I accept that the Z. has expressed a desire to spend more time in Coquitlam. There is one piece of evidence that is revealing. Mr. W. reported that Z. told him that he had a dream that he did not have to sleep at his father’s anymore because it would be more fun to have playdates with his father. Mr. W. suggested that Z. was influenced by Ms. B. to say this. However, this strikes me as a genuine child-like expression of Z.’s wishes.

It appears to have been expressed in a way that was intended to avoid hurting his father’s feelings. I believe that Z. loves his father and has a good relationship with his father. However, I accept that Z. has expressed that he would like to spend more weekends at home in Coquitlam. [ 34 ] Z.’s friends and activities are in the Coquitlam area. Ms. B. and B.W. testified that Z. sometimes misses events by going to Chilliwack three weekends out of the month. Z. is reaching an age where he is spending more time with friends outside of school hours and attending extracurricular activities in his community.

He also has a younger brother in his Coquitlam home with whom he is close. [ 35 ] The current order requires Z. to travel to Chilliwack almost every weekend. I accept that Z. has expressed that he would like to spend more weekends at his home in Coquitlam. I believe that he would benefit from the additional time on weekends with his family, friends and activities in Coquitlam. I accept that it is in Z.’s best interests to spend more than just one weekend a month with his family in Coquitlam. [ 36 ] If Mr. W.’s living arrangements change in the future, then there may be a basis for a variation of the schedule.

For example, if Mr. W. were living closer to Z. and could reasonably exercise parenting time during the week without a lengthy drive, then the change in circumstances may support a variation of the order. ORDER [ 37 ] Mr. W. will have parenting time on alternating weekends from Friday after school or daycare until Sunday at 6 PM, or as otherwise agreed to by the parties. [ 38 ] The parties request an order for holiday parenting time. Ms. B. will have parenting time on Easter weekend from Friday at 6 PM to Monday at 6 PM in even years, and Mr.

W. will have parenting time for the same hours on Easter weekend in odd years. [ 39 ] Mr. W. will have parenting time on Thanksgiving from 6 PM on Friday to 6 PM on Monday in even years, and Ms. B. will have parenting time for the same hours on Thanksgiving weekend in odd years. [ 40 ] Mr. W. will have parenting time from 6 PM on December 23 to 6 PM on December 27 in even years, and Ms. B. will have parenting time at Christmas for the same hours in odd years. [ 41 ] Ms. B. will have parenting time for New Year’s beginning at 6 PM on December 27 to 6 PM on January 1 in even years, and Mr.

W. will have parenting time for the same hours in odd years. [ 42 ] Both parties must exchange income tax returns and any notices of assessment by June 1 of every year. [ 43 ] Pursuant to s. 222 of the Family Law Act , upon exchange of their income tax returns and notices of assessment, the parties shall discuss any material change in circumstances which may warrant a change in the amount of support payable.

Any agreement to change the support payable will be set out in a consent order and filed with the court. [ 44 ] Except in case of emergency, the parties will communicate with each other via the Talking Parents app. Pursuant to her submission, Ms. B. is responsible for the subscription costs of this app for both parties. [ 45 ] Ms. B. and Mr. W. will share equally the cost of daycare. Mr. W. shall pay to Ms. B. his share of any childcare costs incurred for the summer of 2022 and any future daycare costs until further court order. _____________________________ The Honourable Judge J.

Campbell Provincial Court of British Columbia