V.T. v. S.Z., 2023 BCPC 219

Citation: V.T. v. S.Z. 2023 BCPC 219 Date: 20231016 File No: F14196 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: V.T. APPLICANT AND: S.Z. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W.LEE Counsel for the Applicant: L. Kompa Counsel for the Respondent: A. Barna Counsel for the Child J.A.T.: A. Edmunds Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: May 15, 16, 17, 19 and September 7, 2023

Date of Judgment: October 16, 2023 INTRODUCTION [ 1 ] V.T. and S.Z. are the parents of J.A.T., born on [omitted for publication]. J.A.T. is currently 14 years of age. [ 2 ] There are three applications before me as follows:

a) Application About a Family Law Matter filed on July 7, 2021, by S.Z. to seek orders regarding parenting time, child support and conduct.

b) Reply with Counter Application filed on August 18, 2021, by V.T. to seek the following orders: • To maintain a shared parenting time

schedule of alternating weeks. • For V.T. to share the parental responsibility to choose the child’s school. • That S.Z. pay him a fine for not complying with the existing parenting time order. • To adjust child support based on changes in income.

c) Application About Enforcement filed on January 5, 2022, by S.Z. to enforce court orders dated December 14, 2021, and December 29, 2021. [ 3 ] J.A.T. is represented by legal counsel pursuant to the order of Judge Smith made on December 29, 2021. [ 4 ] The central issue is parenting time. S.Z. and J.A.T. ask this Court to allow J.A.T. to decide on the parenting time schedule.

Despite the request set out in V.T.’s Reply with Counter Application seeking alternating weekly parenting time, he now asks for parenting time on certain weekends and shared holidays. [ 5 ] The other issues involve parental responsibilities and child support. S.Z. has also applied to enforce certain orders of this Court, although I heard no submissions in this regard. The Evidence [ 6 ] I heard from the following witnesses:

a) V.T.

b) S.Z.

c) A.G., S.Z.’s partner [ 7 ] Ms. Edmunds was appointed as counsel for J.A.T., and his views were provided to me through Ms. Edmunds. [ 8 ] I have the benefit of a Hear the Child Report prepared by Andrea Yeo. The report is not dated but it followed interviews with J.A.T. on October 26 and November 4, 2021. [ 9 ] A full s. 211 report was prepared by Family Justice Counsellor Audren Madsen and submitted to the Court on January 18, 2023. [ 10 ] Several court decisions were submitted by the three legal counsels. I will not refer to all these cases in my decision but I have attached a list of them as an Appendix.

Background [ 11 ] The parties met in 2007 and started to cohabitate in 2008. Their child J.A.T. was born on [omitted for publication]. The parties separated in 2010. [ 12 ] Since that time there have been a series of court orders dealing with parenting time, parental responsibilities, conduct and child support. The following are the orders relevant to the issues before me:

a) March 9, 2010 order of Judge Pothecary – On an interim, without prejudice basis, V.T. was to have overnight access to J.A.T. every Sunday from 5:00 p.m. to Tuesday at 5:00 p.m.

b) March 23, 2010 order of Judge Steinberg – On an interim, without prejudice basis, V.T. was to have care of J.A.T. from Sunday noon to Tuesday at 5:00 p.m. during week one and from Saturday noon to Monday at 5:00 p.m. during week two.

c) November 24, 2010 order of Judge Steinberg – This was a final consent order stating that the parties will have joint custody and

guardianship of J.A.T. V.T. will pay child support of $245 a month based on an income of $26,400. V.T. will have parenting time from Saturday at 9:00 a.m. to Tuesday at 7:00 p.m. on week one, and from Saturday at 9:00 a.m. to Monday at 7:00 p.m. on week two. The order also set out parenting time on certain dates such as birthdays.

d) December 15, 2011 order of Judge Pothecary – In one of two orders made this day, Judge Pothecary set out a parenting time

schedule for Christmas 2011.

e) May 8, 2012 order of Judge Steinberg – V.T. was granted sole custody of J.A.T. for the period May 12 at 9:00 a.m. to May 14, 2012, at 7:00 p.m.

f) May 14, 2012 order of Judge Steinberg – The parties agreed to vary the November 24, 2010 final consent order such that V.T. would now have parenting time on week 1 from Friday at 5:30 p.m. to Monday at 5:30 p.m. On week 2, V.T. would have parenting time from Monday at 11:00 a.m. to Wednesday at 5:30 p.m.

g) December 21, 2012 order of Judge Steinberg – By way of an order made without notice to S.Z., the Court ordered that V.T. have access to J.A.T. from December 24, 2012, at noon to December 25, 2012, at 11:00 a.m.

h) December 24, 2012 order of Judge Steinberg – With both parties now appearing, the Court ordered that V.T. deliver J.A.T. for S.Z.’s pickup by December 24, 2012, at 1:30 p.m., and then for V.T. to have J.A.T. from December 25, 2012, at 10:00 a.m. to December 26, 2012, at 6:00 p.m. The regular access

schedule would then re-commence.

i) January 8, 2013 order of Judge Steinberg – The parties agreed to a holiday access schedule.

j) May 24, 2016 order of Judge Pothecary – Following a multi-day trial, the Court made a final order for an alternating weekly parenting time

schedule to start when J.A.T. commenced school in September 2016. Both parties were to share parental responsibilities save that S.Z. would be solely responsible for selecting J.A.T.’s school and making any decisions about counselling for him. If the parties were not able to come to a joint agreement about a significant decision involving J.A.T., they were to meet with a Family Justice Counsellor to attempt to resolve the dispute. In the event they could not resolve the matter, either party was then at liberty to apply to the Court for direction.

Judge Pothecary went on to impute income to S.Z. of $16,640 which resulted in a child support obligation of $126 a month. Judge Pothecary found that V.T.’s income was $60,587 resulting in a child support obligation of $560 per month. Judge Pothecary then ordered V.T. to pay a set-off amount of child support of $436 a month. I note that the correct set-off amount is $434 a month. Both parties were ordered to exchange tax information on or before May 31 of each year starting May 31, 2017.

The set-off amount of child support was to be adjusted based on the new Guideline incomes, starting July 1, 2017, and every July 1 thereafter. Lastly, the Court set the amount of child support arrears owed by V.T. at $18,546.75 as of April 30, 2016, which V.T. was to pay at the rate of $250 a month starting September 1, 2016, until arrears were paid off.

k) September 27, 2016 order of Judge Pothecary – The Court reiterated that if there were any future issues, the parties were to contact the Family Justice Counsellor to make an appointment to deal with the issue. The order also dealt with travel outside Canada and control of J.A.T.’s passport.

l) December 6, 2016 order of Judge Pothecary – The Court ordered that the parent who had J.A.T. on Tuesdays, Sundays and Fridays would make him available at 7:00 p.m. that day to allow the other parent to call the child. [ 13 ] In June 2021, S.Z. alleged that V.T. was impaired when driving J.A.T. S.Z. prevented V.T. from having any parenting time following this allegation and she filed the Application About a Family Law Matter on June 7, 2021, to seek to change the parenting time schedule.

m) September 21, 2021 order of Judge Dossa – The Court made an interim order at a Family Management Conference to prevent either party from operating a motor vehicle while carrying J.A.T. when that party was under the influence of alcohol or had consumed alcohol in the preceding eight hours. The parties consented to an order that V.T. pay S.Z. child support of $232 a month starting October 1, 2021. The parties also agreed that a s. 211 Views of the Child report would be prepared by a report writer agreed to by the parties, with the costs of the report being shared equally.

n) December 29, 2021 order of Judge Smith – Two orders were made on this day. The first order was to appoint legal counsel for J.A.T. The second order was that neither party was to consume alcohol a minimum of 24 hours before exercising parenting time and throughout the parenting time. J.A.T. was permitted to use his cell phone to communicate with one parent during the other parent’s parenting time. The Court also set out certain conduct orders.

In addition, Judge Smith ordered the parties to exchange their tax information by September 1, 2022, and on September 1 of each year thereafter to recalculate child support or special expenses payable between the parties. If the parties could not agree on an amount, then they could apply to Court.

o) April 22, 2022 order of Judge Lee – I made an interim order for V.T. to have parenting time during the school year on alternating weekends from Friday after school to Monday before school, and every Wednesday from 6 p.m. to 8:30 p.m. During the summer months, each parent would have two weeks of alternating parenting time starting on the first Saturday after the end of the school year. In September 2022, the parenting time

schedule of alternating weekends and Wednesday evenings would resume. My order also dealt with travel outside of Canada and control of J.A.T.’s passport.

[ 14 ] I made the April 22, 2022 order without prejudice to the final parenting time order. I also took into account J.A.T.’s wishes for a change from the alternating week

schedule given that S.Z. resides close to the child’s school in [omitted for publication]. At the time, V.T. was living in [omitted for publication]. I heard submissions that attending a [omitted for publication] school while residing in [omitted for publication] was an issue for J.A.T. The order also reflected the actual parenting time

schedule in place even though V.T. wished for the alternating weekly parenting time

schedule to resume.

p) June 28, 2022 order of Judge Dorey – The Court varied the April 22, 2022 order so that the summer parenting time

schedule started on a Sunday rather than a Saturday. There was also an adjustment to the parenting time during the school year so that V.T. had additional time starting on Thursday if, during his scheduled weekend, the Friday was a school Professional Day.

q) October 27, 2022 order of Judge Smith – The Court made an interim order that V.T. would have parenting time on alternating weekends from Friday after school to Sunday at 7:30 p.m. V.T. was found to have an income of $55,000 and child support was set at $517 a month starting November 1, 2022, which was to be recalculated by the Provincial Child Support Recalculation Service (referred to in the Order as the “provincial child support service.”). The matter was then adjourned to May 15, 2023, for a 5-day trial.

r) December 13, 2022 order of Judge McQuillan – The Court made an interim order setting out parenting time over the December 2022 Christmas holidays, with the parenting time

schedule as set out in the October 27, 2022 order resuming on January 6, 2023.

Summary of Evidence Regarding Parenting Arrangements [ 15 ] Rather than describing what each witness said, I will summarize their testimony about parenting arrangements. Living Circumstances [ 16 ] S.Z. resides in [omitted for publication], B.C. with her partner A.G. S.Z. and A.G. have lived together since 2011. [ 17 ] V.T. has lived in [omitted for publication] since July 2022. Previously, he lived in [omitted for publication]. [ 18 ] V.T. is married to L.K. She has a son from a previous relationship. V.T. and L.K. have one child together.

A third child has been placed with them as foster parents by the Ministry of Children and Families. Schooling [ 19 ] J.A.T. attends Grade 9 at a secondary school in [omitted for publication]. [ 20 ] J.A.T. is a B-average student, has good school attendance and enjoys school sports, particularly basketball. His work habits can be improved. Basketball [ 21 ] J.A.T. is passionate about basketball, and both parents are supportive of this. [ 22 ] V.T. was involved in competitive basketball at a high level.

He shares J.A.T.’s passion for the sport. [ 23 ] At some point, J.A.T. asked to be enrolled in a basketball program. V.T. described this as an AIU program. I suspect he was referring to an AAU (Amateur Athletic Union) program. V.T. said he could not afford the costs so J.A.T. was not enrolled into the program. [ 24 ] J.A.T. did participate in a Sunday basketball program, which was broken into two sessions. Initially, the parties agreed to share equally the costs of the first session. S.Z. paid the full costs and asked V.T. to reimburse her for half the cost.

V.T. did not do so and S.Z. told J.A.T. she lacked the money to pay for the second session. V.T. then agreed to pay for the costs of the second session. Alleged Intoxicated Driving [ 25 ] In June 2021, J.A.T. went to a barbeque with V.T. and his family. According to S.Z., J.A.T. said V.T. was intoxicated when he drove J.A.T. and the family home. [ 26 ] V.T. recalled the June 2021 barbeque. He said there was a champagne toast which he participated in and otherwise he had a couple of non-alcoholic drinks.

He denies being impaired when they drove away. [ 27 ] As a result of the report of V.T.’s intoxication, S.Z. filed an Application About a Family Law Matter on July 7, 2021, to seek a change in the parenting time order. S.Z. also did not allow V.T. any in-person parenting time with J.A.T. that summer. [ 28 ] This matter came before Judge Dossa on September 21, 2021, and an order was made that neither parent would operate a motor vehicle with J.A.T. while the parent was under the influence of alcohol or had consumed alcohol in the previous 8 hours. [ 29 ] S.Z. said V.T. resumed seeing J.A.T. in September 2021.

V.T. thought he did not see J.A.T. until October 2021. [ 30 ] There have been no other allegations that either parent has driven J.A.T. while intoxicated. Cell Phone Use [ 31 ] S.Z. described difficulties contacting J.A.T. when he was with V.T. J.A.T. has a cell phone but V.T. took this away from J.A.T. during V.T.’s parenting time.

[ 32 ] V.T. felt that J.A.T.’s use of the cell phone was a distraction. He believed that J.A.T. was too young when he first received a cell phone at the age of 9 or 10. [ 33 ] On December 29, 2021, Judge Smith ordered that J.A.T. could use the cell phone to communicate with the parent who was not exercising parenting time. Allegations of Neglect [ 34 ] S.Z. testified that V.T. was neglecting J.A.T. When asked for an example, she said when J.A.T. was 7 years old, V.T. did not take him to a monster truck show.

S.Z. gave as another example that V.T. and his family have taken several trips to Alberta without J.A.T. [ 35 ] V.T. said he has done many Alberta trips without J.A.T. These trips were to see a sick family member and he would not describe them as a vacation. [ 36 ] V.T. said in December 2022, S.Z. went to Poland without J.A.T. V.T. alleged that this was neglect on S.Z.’s part. [ 37 ] Having heard each party’s allegations of neglect, I find they are without merit. A failure by either parent to take J.A.T. on a trip or activity is not neglect.

Grade 7 Graduation [ 38 ] J.A.T.’s Grade 7 graduation required attendees to have a ticket. Each student was allotted two tickets. V.T. understood that a ticket was set aside for him. When he arrived, he learned that S.Z. and A.G. had been admitted and there was no ticket for him. V.T. was eventually allowed in to watch the graduation. [ 39 ] S.Z. said she understood that a ticket had been set aside for V.T. [ 40 ] There is no evidence to suggest that S.Z. denied V.T. a ticket to the graduation.

January 1, 2022 Exchange [ 41 ] On January 1, 2022, J.A.T. was with V.T., and there was a scheduled exchange at 11 a.m. at the [omitted for publication]. V.T. was not at the exchange site at the scheduled time. S.Z. phoned the police and they apparently called V.T. V.T. said he would attend at [omitted for publication]. S.Z. said V.T. was 2 hours late for the exchange. [ 42 ] S.Z. testified that when V.T. arrived with J.A.T., he would not let him out of the car. S.Z. called the police. V.T. drove away and S.Z. followed in her car.

S.Z. admits that “ill words” were said and that she should not have followed V.T. [ 43 ] V.T. testified that he drove J.A.T. to the Port Moody Police station where the exchange occurred. He said there was a misunderstanding of the drop-off time and he made a mistake. V.T. said he drove to the Port Moody Police station to avoid fighting and an argument. [ 44 ] V.T. should not have been so late for the scheduled exchange. When the parties met at the exchange site, V.T. should have allowed the exchange to occur, rather than drive away to avoid a confrontation.

S.Z. should not have pursued V.T., although if V.T. had driven away from the exchange site without explanation, this was understandable. S.Z. admitted to saying “ill words” at V.T., which was contrary to Judge Smith’s conduct order made on December 29, 2021. Both parties were at fault here. Travel [ 45 ] V.T. had an Alberta trip planned for December 2022. He planned to leave on December 15, 2022, and he hoped to take J.A.T. even though this interfered with S.Z.’s parenting time. V.T. waited until a scheduled Family Settlement Conference on December 13, 2022, before asking S.Z.

The parties did reach an agreement before Judge McQuillan that allowed J.A.T. to go on the trip despite the late notice by V.T. [ 46 ] On January 2, 2023, S.Z. asked V.T. if she could take J.A.T. to Los Angeles leaving January 3, 2023, and returning the following Friday which would have interfered with V.T.’s parenting time. [ 47 ] The September 27, 2016 order of Judge Pothecary required either party to give 7 days’ notice of any trip outside of Canada exceeding 48 hours.

That did not occur here. [ 48 ] S.Z. testified that her mother purchased plane tickets for a trip to Los Angeles to attend a January 4, 2023 basketball game. S.Z. said this trip was a surprise birthday present for J.A.T. However, I question whether S.Z. knew of this trip earlier since it seems likely S.Z.’s mother would have consulted S.Z. before making such a significant purchase. [ 49 ] The parties did agree to allow the trip to occur. Nevertheless, this is another example of the difficulties they have in communicating.

To be clear, I find that on this occasion, S.Z. was responsible for the difficulties surrounding this trip. Other Incidents [ 50 ] Each party gave evidence of other incidents, which I consider minor and will not detail. The reciprocal complaints are indicative of the poor relationship between the parties and their general inability to communicate or act cooperatively. Was There a Material Change in Circumstances? [ 51 ] According to Family Law Act s. 47, a court may change a parenting arrangement order if there has been a change in the needs and

circumstances of the child. This may also include a change in the circumstances of another person. [52] The caselaw is clear that the change contemplated by s. 47 must be a material change in circumstances: see for exampleWilliamson v. Williamson, 2016 BCCA 87; S.M.M. v. J.P.H., 2016 BCCA 284. [53] In Callaghan v. Charbonneau, 2022 BCCA 167, the Court said at para. 12: … Moreover, the changes are only those occurring since the order was made. Further, the changes must be material, that is to sayfundamental in such a way that had the circumstances now existing prevailed then, the order might have been different.

Further, it mustbe the case the changes relied on were not foreseen and were, reasonably, outside of the contemplation of the parties when the order wasmade. [54] S.Z. submits that there has been a material change in circumstances for two reasons, which I will discuss below. [55] V.T. has not opposed the suggestion that a material change of circumstances has occurred. [56] The first reason cited by S.Z. is that the alternating weekly parenting time

schedule set by the May 24, 2016 order of JudgePothecary was changed by my order of April 22, 2022, which gave V.T. parenting time on alternating weekends. However, I made theApril 22, 2022 order on the basis that it was without prejudice to any further orders about parenting time. As such, I do not accept theApril 22, 2022 order as a material change of circumstances. [57] The second reason cited by S.Z. is that J.A.T. was 7 years old when the May 24, 2016 order was made. He is now 14 years oldand has expressed his wish for a change in the parenting time order.

S.Z. submits that J.A.T. is now mature enough to decide whatschedule suits him the best. S.Z. also agrees that the parents have not been able to resolve parenting arrangement issues on their own orwith the assistance of the Family Justice Counsellor. [58] S.Z.’s counsel referred to the decision D.A.F. v. R.D.F., 2017 BCSC 873. This decision involved a child referred to as “R.,”whose age is not set out in the decision. The Court had the benefit of a s. 211 Views of the Child Report prepared by Dr.

Beloff, who saidR. wished for a change in the parenting arrangements so that he could spend more time with his mother. [59] The Court commented as follows: [33] Dr. Beloff has determined that R.’s stated desire to live primarily with the respondent is genuine, reasonably based, and not theresult of pressure or suggestion. The ultimate decision is for the court and the views of the child are not necessarily determinative. But Imust make a finding of fact as to what R.’s views actually are. On that point, there is no evidence on which I could come to a differentconclusion than Dr.

Beloff’s. [34] Although the child’s views are not necessarily determinative, it is a well-established principle that the court should giveconsiderable weight to the views of an older child, proportionate to their age and level of maturity: O’Connell v. McIndoe (1998), (BC CA), 56 B.C.L.R. (3d) 292 (C.A.), leave to appeal ref’d [1998] S.C.C.A. No. 576 [O’Connell]; T.T. v. J.M.H., 2014BCSC 451[T.T.] at para. 54.

In O’Connell, the Court of Appeal said at paragraph 13 that for custody orders relating to children in theirteens to be practical, they must reasonably conform to the wishes of the child. [35] Although R. is younger than the children involved in O’Connell and T.T., the principle has been applied in relation to childrenof his age or younger: D.N.L. v. C.N.S., 2013 BCSC 809. If R. is not already at an age where the same conditions and considerationsapply, he soon will be.

By the time he reaches his teens, he will be making his own decisions about how much time he spends with eachparent, as his sister appears to be doing now. Dr. Beloff found him to be “a mature boy who is truthful, insightful, considerate andthoughtful.” [60] In the decision S.M.M. v. J.P.H., which I referred to earlier, the B.C. Court of Appeal stated: [22] While a child’s views and wishes are not determinative, courts should give considerable weight to the views of an older child,proportionate to their age and level of maturity: O’Connell v.

McIndoe (1998), (BC CA), 56 B.C.L.R. (3d) 292(C.A.), leave to appeal ref’d (1999), [1998] S.C.C.A. No. 576; T.(T.) v. H.(J.M.), 2014 BCSC 451at para. 54. A child’s newly formedviews may constitute a material change in circumstances: Rashtian v. Baraghoush, 2013 BCSC 2023at paras. 16-17. [61] I am satisfied that a material change of circumstances may exist when a child reaches an age, as well as a level of maturity, wherethe child can express their wishes for a change in parenting arrangements. The Views of the Child [62] The decision B.J.G. v.

D.L.G., 2010 YKSC 44 is the leading authority for the right of a child to be heard at a trial affecting thechild’s interests. Madam Justice Martinson confirmed the following principles:

a) Children have a legal right to express their views.

b) There must still be a determination of whether the child is capable of forming his or her own views before the child has the legal rightto express those views.

c) Decision makers can look at all the circumstances of a case when deciding on what weight should be given to a child’s views.

d) A child’s views can be obtained on a wide variety of issues, from a general view of their life to specific issues.

e) There are many different ways to obtain the views of a child, depending on the family circumstances and the age and maturity of thechild.

[63] The British Columbia Court of Appeal has recognized the importance of parenting arrangement orders conforming to the wishesof older children. In O'Connell v. McIndoe, , the Court stated: [13] In order for custody orders relating to children in their teens to be practical, they must reasonably conform with the wishes of thechild. See Shapiro v. Shapiro (1973), (BC CA), 33 D.L.R. (3d) 764 (B.C.C.

A) and Alexander v.Alexander (1988), (BC CA), 15 R.F.L. (3d) 363 (B.C.C.A.). [64] I am satisfied that I should and must consider J.A.T.’s views. I arrived at this conclusion based on the following factors:

a) J.A.T.’s maturity and his ability to communicate objectively and independently.

b) J.A.T.’s receipt of independent legal advice, and his ability to understand that advice.

c) J.A.T. has a strong relationship with both parents and their families such that his views are likely to be fair to both parties. [65] J.A.T.’s views have been set out in a Hear the Child Report, the s. 211 report and through the Child’s legal counsel.

The Hear the Child Report [66] On September 21, 2021, Judge Dossa made an order for the preparation of a non-evaluative Views of the Child Report, preparedby a “qualified neutral child interviewer as mutually agreed upon by the parties.” The parties were to agree on an interviewer on orbefore September 28, 2021, with the costs shared equally between the parties. [67] The parties were unable to agree on an interviewer. Rather than return to Court to resolve the dispute, S.Z. elected to retainAndrea Yeo to prepare the report. S.Z. paid the full costs of the report, which Ms.

Yeo referred to as a Hear the Child Report. [68] Ms. Yeo’s report was not dated. She met with J.A.T. on October 26 and November 4, 2021. Ms. Yeo confirmed that the reportonly set out what J.A.T. told her. Ms. Yeo did not verify whether any of the information was true. [69] J.A.T. stated in the report that he preferred not to continue with the week-on/week-off

schedule during the school year. He said: …I don’t really want to go to my dad’s these days because I want to go to school on my mom’s weeks because my mom lives right nearmy school in [omitted for publication] and my dad lives in [omitted for publication] and so I have to get up at like 6:40 am to get readyfor school from my dad’s. [70] Following this report, V.T. moved to [omitted for publication]. Given the distance to J.A.T.’s school, V.T. is no longer seekingweek-on/week-off parenting time during the school year. [71] Ms. Yeo summarised J.A.T.’s views as follows: • The Child reports he stopped following the 50/50 parenting

schedule because of a drinking and driving incident with his father afew months ago and also because of the location of his school being close to his mom’s place and far from his dad’s place. • The Child reports he does hear about things court-related but not specific details. • The Child reports that his father thinks that his mother is invading and tracking his cell phone when the Child is at his father’shome and that this is the reason the father takes the Child’s phone away when the Child is at his father’s home.

The Child said he findsthe rules around his cell phone to be unfair especially when his siblings at his father’s home have different rules. The Child would likefor the issues around his cell phone to be resolved and to not be so difficult moving forward. • The Child reports he is not permitted to bring his iPad or Nintendo back to his mother’s home even though it belongs to the Childand that he wishes he was allowed to have the option to bring his belongings back and forth with him if he chooses to do so. • The Child reports he would like an adjusted parenting

schedule where he stays at his mother’s on school nights and goes to hisfather’s home every other weekend. • The Child reports he would like to spend special days like birthdays, with each family member when it is their birthday.

The Childsaid he would like to share his time between his mother’s and father’s for special holidays like Christmas and to share the school holidaytime equally between both parents. • The Child reports his father drinks a lot and he overheard his step mother saying she used drugs her whole life. • The Child reports he wishes his mother and father could get along better and communicate more effectively so that his visits couldrun smoothly. • The Child reports he does overhear his mother talking to his grandma or her friend about how his father is difficult. • The Child reports his father has told him his mother has mental problems and has told him that his mother is a “psycho” on severaloccasions. • The Child reports he does not want a 50/50

schedule between both parents anymore. • The Child reports he feels like he can’t tell his father how he actually feels because he is worried about hurting his father’sfeelings.

• The Child reports he feels uncomfortable knowing his father will read the contents of this report but still wanted the information to be known.

Section 211 Report [ 72 ] On September 21, 2021, Judge Dossa ordered that a full s. 211 report be prepared by a Family Justice Counsellor. That report was prepared by Audren Madsen and submitted on January 18, 2023. [ 73 ] I have noted comments throughout the report that given J.A.T.’s maturity, he should have an increased role in determining parenting time arrangements. [ 74 ] On page 2 of the report, Ms. Madsen stated: “[V.T.] is currently supportive of [J.A.T.] having the deciding voice in the time he spends with each parent.” [ 75 ] Ms. Madsen interviewed V.T.’s wife, L.K. Ms.

Madsen described L.K.’s views as follows: …She stated the conflict between [S.Z.] and [V.T.] has been difficult to cope with throughout the years and she sees their issues as being not necessarily about [J.A.T.], but rather with each other. She believes the best outcome for [J.A.T.] is to respect his maturity and what he wants in his life. Further, to allow him to make decisions, rather than forcing him to attend each home because of a court order… [ 76 ] Ms.

Madsen spoke with the maternal grandmother, A.Z., whose views were described as follows: [A.Z.] sees [J.A.T.] caught in the middle on his parents’ chronic discord, making him sad and a bit depressed. She views [J.A.T.] as being mature enough to make decisions for himself about when and how much time he spends in each of his homes. [ 77 ] Ms. Madsen described J.A.T.’s views as follows: Life could be better for [J.A.T.] if his parents were to get along, not argue, and cooperate; “don’t cause so many issues”. He noted that if his parents were able to get along, then he would not be subject to Sec. 211 reports.

He noted, “I don’t get it, they tell me I have to get along with people and then they don’t get along”. [J.A.T.] is worried about hurting his parents’ feelings and does not want to make further decisions until he is older. He loves both parents and is grateful they are good parents. [J.A.T.] would like the judge to know, “keep the weekdays and weekends the same. During school holidays, let me decide on my time. Try to get my parents to get along. Don’t have unnecessary conflict. Tell them to stop talking through me, talk to each other instead. Stop saying bad things about each other to me.” [ 78 ] Ms.

Madsen reported that both parents are trying to improve their communication with each other but they also acknowledged difficulties achieving this goal. [ 79 ] Ms. Madsen stated that J.A.T. would prefer to maintain the current

schedule where he lives primarily with S.Z. and spends every other weekend with V.T. She went on to say at page 10: “…Given [J.A.T.’s] age, maturity and experiences with various parenting time schedules throughout his life, the court may wish to consider providing him with additional input and decision-making capabilities regarding the schedule.” [ 80 ] The report is clear that J.A.T. feels caught in the middle of two parents who, despite conduct orders, are unable to communicate effectively with each other.

The report also confirmed that both parents continue to make negative comments about the other parent in front of J.A.T. [ 81 ] Ms. Madsen concluded that the homes of both parents are stable and supportive. She said that the difficulty rests in the chronic conflict and the inability of the parents to recognize the long-term impact this has on the Child. [ 82 ] Ms. Madsen suggested the use of a parenting coordinator, but in my view, the parties are unable to afford the costs which I understand can be significant.

Mediation through Family Justice Services was suggested as an alternative, something that was required in the orders of Judge Pothecary made on May 24 and September 27, 2016. Unfortunately, those orders had no effect in reducing the level of conflict between the parents. The View of the Child as Expressed Through His Legal Counsel [ 83 ] On December 29, 2021, Judge Smith ordered the appointment of legal counsel for J.A.T. A term of the order allowed J.A.T.’s legal counsel, Ms. Edmunds, to provide the court with a

summary of the child’s views without the need for the child to testify. Such an order is contemplated by s. 202 of the Family Law Act , which allows a court to decide how a child’s evidence is received, having regard to the best interests of the child. [ 84 ] I received Ms. Edmunds’s report of J.A.T.’s views on May 19, 2023. At that time, she had met J.A.T. 17 times. I was informed that Ms. Edmunds had no concerns about J.A.T.’s ability to instruct counsel, he was fully capable of understanding his choices, and he was forthcoming. Ms.

Edmunds advised me that she had no concerns that J.A.T.’s expressed views were not his own. [ 85 ] Based on the information provided by Ms. Edmunds, J.A.T.’s views can be summarized as follows: • J.A.T.’s greatest stress is the conflict between his parents. This has been his experience his entire life and he wants this to end. • J.A.T. must play the peacemaker between his parents in navigating an adult conflict. • J.A.T. has a relationship with both families, and he is proud of his multicultural background. He feels a connection with both sides of the family.

• His interest in basketball has grown, and this is his real passion. • J.A.T. gets frustrated when his parents put him in the middle of their dispute. He is used by his parents as a means for them to communicate with each other. J.A.T. feels his parents have no hope of communicating directly with each other. He regularly hears negative comments from one parent about the other. • J.A.T. wants to decide when he should spend time with each parent. He feels his father is inflexible and is not willing to vary a parenting time

schedule to accommodate J.A.T.’s wishes. • J.A.T. would like a

schedule as set out in the April 2022 order, which has been working well. • The court process has been going on for a long time and he would like it to end. Any court order needs to be flexible. • J.A.T. does not want a set summer schedule. His parents are too inflexible. J.A.T. intends to see his parents equally during school breaks. • J.A.T. does not want his sports activities interfered with.

He also wants the flexibility to allow him to see friends or to work. • J.A.T. has never stopped wanting to spend time with either parent. • J.A.T. prefers being with his mother during the school year because of how early he would have to get up at his father’s home. If he is with his mother, he has access to his home when he is at school.

He also has more space at his mother’s home. • The Hear the Child Report reflects what he said. • J.A.T. agrees with the s. 211 report recommendations, particularly with having more say in the parenting time schedule. [ 86 ] Given the comments set out in the s. 211 report prepared by Audren Madsen and the submissions from Ms. Edmunds, I am satisfied that J.A.T. is mature enough to make informed choices about parenting arrangements. [ 87 ] I refer to the decision A.B. v. S.N. , 2020 ABQB 706 at para. 119 , where the court considered whether the child’s views were being coached.

The court stated: [119] I find no coaching, in the sense of attempts to turn the child’s views from those emerging naturally, readily and spontaneously from her, or, in the alternative, no successful (view-changing i.e. away from the father) coaching, for these reasons: • the child is 13.5 years old i.e. of an age where attempts to coach are less likely to succeed than with younger children and, in any case (as reflected in the above cases), of an age where children’s views are typically accorded at least some, if not considerable, weight; • per the child’s counsel, the child is “bright and articulate”, “knows her own mind” and understands her family history and circumstances; • per that counsel, none of the traditional markers of coaching were evident in the child’s interview responses; • the reported views of the child (per her counsel) are clear and unambiguous; • her views were offered in a neutral setting (away from both the father and mother); • the child is plainly confident, self-possessed, and mature, reflected in

part in her thriving while living overseas; • the child provided reasons (noted above) for her preference; • those reasons are logically connected to her preference; • the father initially endorsed the concept of a counsel for the child being appointed i.e. the canvassing of the child’s views by such a counsel; and • the father did not seek to have the child’s views gauged by anyone else. [ 88 ] These same considerations apply here and based upon them, I conclude that J.A.T.’s expressed views are his own.

Is There a Material Change in Circumstances? [ 89 ] Taking into consideration the number of years that have passed since the May 24, 2016 order, J.A.T.’s age and maturity, and his clear desire for a change in the parenting time arrangements, I find that there has been a material change in circumstances that allows me to consider a variation of the May 24, 2016 parenting time order. The Positions Regarding Parenting Time [ 90 ] During her evidence, S.Z. asked that V.T. have alternating weekend parenting time during the school year.

During the summer holidays, S.Z. said J.A.T. should decide his parenting time schedule. [ 91 ] S.Z. also said that traditionally, J.A.T. is with her every Christmas Eve and with V.T. every Christmas Day, with J.A.T. going to V.T. on Christmas morning. [ 92 ] During closing submissions, I was told that S.Z. would accept the child’s views regarding parenting time and proposed that

J.A.T. should determine the parenting time schedule. [ 93 ] S.Z. also asked that the place of exchange occur at some point halfway between the parents’ homes. She suggested the [omitted for publication] rather than the current location of the [omitted for publication], as set out in the October 27, 2022 order of Judge Smith. V.T. did not provide any submissions about the place of exchange. [ 94 ] V.T. asked for parenting time of three weekends a month.

When school is closed on a Friday or Monday of his parenting time weekend, V.T. asked that his parenting time be extended. [ 95 ] During the summer holidays, V.T. asked for two weeks of parenting time, then S.Z. would have one week of parenting time, and this

schedule would repeat. [ 96 ] The April 22, 2022 order also gave V.T. parenting time on Wednesdays from 6:00 p.m. to 8:30 p.m. I heard evidence that V.T. only exercised this parenting time occasionally as he would instead see J.A.T. on Thursday evenings for basketball. I understand V.T. wishes to maintain the flexibility to see J.A.T. whenever his basketball activities occur. [ 97 ] Counsel for V.T. submitted that a court-imposed

schedule would place less pressure on the child, and provide guidance for the parties. [ 98 ] V.T. also submitted that any disputes should be referred to a third party such as the Family Justice Counsellor to attempt resolution before a court application is pursued. [ 99 ] I have set out J.A.T.’s views previously. J.A.T. also submitted that all other options have been tried to help the parties resolve their differences, and they have not succeeded. In the circumstances, J.A.T. says it is now time to try something new and allow him to decide on the parenting time schedule. Allowing the Child to Decide the Parenting Time

Schedule [ 100 ] I was not referred to any court decisions where an order was made granting a child the power to decide a parenting time schedule, as opposed to a

schedule set by the court after taking into account the child’s wishes. However, I have been able to locate some caselaw. [ 101 ] In the decision E.L. v. M.K ., 2021 ONSC 6340 , the court made an interim order allowing the 17-year-old child to determine the parenting time

schedule with the father and mother: see para 54. [ 102 ] The decision Fannon v. Spooner , 2013 ONCJ 384 involved a 14-year-old child, who was represented by counsel through the Office of the Children’s Lawyer. At issue was the mother’s application to change an access order such that the father would have access at the discretion of the child: see para. 74. Counsel for the child said it was not in the child’s best interests to have unfettered discretion about access, and this view was supported by a clinical report.

The court went on to make an access order that included a four-hour visit with the father once a month on a date proposed by the child. [ 103 ] In the decision S.R.V.M. v. J.S ., 2020 ONCJ 573 , the court rejected the father’s proposal that the 8 ½-year-old boy decide when and how to see his mother. Given the child’s age, the court did not place great weight on the child’s wishes: see para. 139.

The court also said in para. 146, “This young boy is not capable of navigating on his own, and he should not have to.” [ 104 ] Despite the limited precedent for an order allowing a child the right to decide a parenting time schedule, this does not mean such an order is inherently contrary to the best interests of the child. My review of the Family Law Act suggests that it does not prohibit an order that allows the child to determine a pparenting time schedule.

It appears that such an order can be made so long as the order is in the child’s best interests. [ 105 ] The only consideration when making an order about parenting arrangements is the best interests of the child: Family Law Act s. 37(1) [ 106 ] Section 37(2) of the Family Law Act requires this court to consider all of the child’s needs and circumstances when determining what is in the best interests of the child. This includes those factors listed at s. 37(2), which I will now discuss.

The Child's Health and Emotional Well-being (s. 37(2)(a)) [ 107 ] J.A.T. is caught in the middle of a dispute that his parents cannot or will not resolve, and J.A.T. needs this conflict to end. I am satisfied that any child placed into such a position, described by J.A.T. as being the “peacemaker,” is likely to suffer from stress that impacts his emotional well-being. [ 108 ] I am concerned though that by giving J.A.T. the sole decision-making power over parenting time, he may be placed in a position where each parent will pressure him for parenting time.

This would increase the stress on J.A.T. and be a greater detriment to him. This question has not been addressed in any of the reports or the evidence. The Child's Views (s. 37(2)(b)) [ 109 ] Given J.A.T.’s maturity, I am satisfied that it is appropriate to consider his views. Those views have been consistently expressed through various sources. Simply stated, J.A.T. wishes to determine the parenting time

schedule so that his parents stop fighting over this issue. Relationships Between the Child and Others in the Child's Life (s. 37(2)(c)) [ 110 ] I am satisfied based on the evidence that J.A.T. has a strong relationship with each parent and with all members from each side of the family.

The History of the Child's Care (s. 37(2)(d)) [ 111 ] The May 24, 2016 order of Judge Pothecary allowed each parent alternating weekly parenting time. This continued until my order of April 22, 2022, which gave V.T. parenting time on alternating weekends and Wednesday evenings, and allowed S.Z. the balance of the parenting time. The April 22, 2022 order also allowed each parent two weeks of alternating parenting time during the summer holidays. [ 112 ] There were small changes to the ongoing parenting time

schedule made in the orders dated June 28, 2022, by Judge Dorey and October 27, 2022, by Judge Smith. The Need for Stability (s. 37(2)(e)) [ 113 ] J.A.T. has been described by various sources as a mature 14-year-old. His need for stability is not as important when compared to a younger child. The Ability of Each Parent to Exercise Their Responsibilities (s. 37(2)(f)) [ 114 ] There is no evidence to suggest that either parent is incapable of responsibly caring for J.A.T.

The s. 211 report confirmed that both parents have stable homes and are supportive of J.A.T. [ 115 ] It was clear from the evidence however that the parents are unable in most cases to work co-operatively when making decisions about parenting time. Impact of Family Violence (s. 37(2)(g)) [ 116 ] This is not a relevant consideration. I heard no evidence of family violence. Counsel for S.Z. suggested that the January 1, 2022 car chase incident was family violence but I fail to see how it fell within the definition of “family violence” at s. 1 of the Family Law Act .

Effect of Family Violence (s. 37(2)(h)) [ 117 ] This is not a relevant consideration. I heard no evidence of family violence. Appropriateness of a Co-operative Arrangement (s. 37(2)(i)) [ 118 ] The sheer number of court orders is indicative of the high-conflict nature of these proceedings and the relationship between the parties. The parties are unable to arrive at any but the most basic agreements about parenting arrangements.

In their submissions, both parents and J.A.T. acknowledged this was the case. [ 119 ] V.T.’s counsel suggested that disputes between the parties could still be referred to the Family Justice Counsellor to assist in resolving disputes. However, an order referring the parties to the Family Justice Counsellor has been in effect since May 24, 2016, and has proven ineffective. This is not an option. Any Civil or Criminal Proceedings (s. 37(2)(j)) [ 120 ] There are no such proceedings.

Any Other Factors [ 121 ] As I stated earlier, Family Law Act s. 37(2) requires this Court to consider all of the child’s needs and circumstances when determining what is in the best interests of the child, and not just the factors listed at s. 37(2)(

a) to (j). In this case, I have not been pointed to any additional factors for consideration. Decision on Parenting Time [ 122 ] The parenting time order I will make will require exchanges of the Child either at his school if that is in session, or at [omitted for publication]. This was requested by S.Z. V.T. did not oppose this request. [ 123 ] During one parent’s parenting time, J.A.T. will remain free to contact the other parent, whether by using his cellular phone or such other means as chosen by J.A.T. This is in keeping with the order of Judge Smith made on December 29, 2021. [ 124 ] Concerning the actual parenting time schedule, a court-imposed

schedule has not prevented conflict between the parties. This has been due to their inflexibility and inability to compromise. I find that such a situation has been contrary to the best interests of the child. Earlier in my Reasons, I reviewed the disputes between the parties. No one dispute was so serious as to put J.A.T. at risk. It is the never- ending nature of the disputes that has been the problem, and the cause of such a burden on J.A.T. [ 125 ] I am also of the view that at this time, allowing J.A.T. to decide the parenting time

schedule places him at risk of even greater pressure. I am concerned that an order to allow J.A.T. to decide the

schedule would result in both parents lobbying him for additional time, causing him to become even more of a “peacekeeper.” This is especially so given the inability of the parents to cooperate, and each parent’s focus on their own needs rather than what is in J.A.T.’s best interests. [ 126 ] The responsibility of determining an appropriate parenting time

schedule belongs to the court when the parents cannot do so. There may be a time when the appropriate order is to allow the child to decide on the complete

schedule but I am not convinced that this is the time. [ 127 ] I will nevertheless make an order permitting J.A.T. to determine the parenting time for certain days of the school year when

school is not in session. This will ensure J.A.T. has some direct say in his

schedule and will provide an opportunity for this Court to view the parents’ response to J.A.T.’s decisions, which may have a bearing on future orders about parenting time. [ 128 ] In setting out a parenting time schedule, I distinguish between non-instructional days and those days when school is closed due to a statutory holiday.

Those precise dates are determined by reference to the school calendar for School District [omitted for publication], also referred to as the [omitted for publication] Schools Calendar. [ 129 ] For greater certainty, when a statutory holiday falls on a weekend, school will be closed on the following Monday. In such a circumstance, J.A.T. will decide the parenting time

schedule on the Monday when school is closed. [ 130 ] The specific times during the school year that result in a school closure are as follows:

a) National Day for Truth and Reconciliation

b) Thanksgiving Day

c) Remembrance Day

d) Winter Break

e) Family Day

f) Spring Break

g) Good Friday

h) Easter Monday

i) Victoria Day [ 131 ] J.A.T. will have the discretion to decide on his parenting time for any school closures as a result of these dates, except that Christmas Eve and Christmas Day will still be shared between the parents. [ 132 ] Regarding the school summer holidays, they are in general nine weeks long. This makes it impossible for the parents to share the time equally if there is a fixed alternating schedule. The parent who has parenting time first during the summer holidays will always get more parenting time. To deal with this, each parent will alternate being the first to have summer holiday parenting time. [ 133 ] I will set out an interim parenting time order. Either party may

schedule a review of the parenting time

schedule after 6 months, for which I will be seized. [ 134 ] My order will require the parents to take into account any request by J.A.T. to change the schedule. The parents need to take those requests seriously and consider only what is in the Child’s best interests and not either parent’s interests. [ 135 ] The parenting time order I make will be similar to the current

schedule as both J.A.T. and S.Z. have said the

schedule has been working fine. I also have considered V.T.’s comment, as expressed in the s. 211 report, that he is supportive of J.A.T. having the deciding voice when determining parenting time. [ 136 ] My order will be as set out below. I will state which terms are interim. All other terms are final orders. Parenting Time 1. On an interim basis, during the school year, V.T. shall have parenting time with the child, J.A.T., born [omitted for publication], (the “Child”) on alternate weekends from Friday after school until 7:30 p.m. on Sunday. 2.

On an interim basis, should the Friday before V.T.’s parenting time be a non-instructional day whereby the Child does not have scheduled school classes, V.T.’s parenting time will commence on the Thursday after school. 3. On an interim basis, should the Monday after V.T.’s parenting time be a non-instructional day whereby the Child does not have scheduled school classes, V.T.’s parenting time will end at 7:30 p.m. on that Monday. 4. On an interim basis, S.Z. will have parenting time with the Child from 5:00 p.m. on Christmas Eve until 10:00 a.m. on Christmas Day.

V.T. will have parenting time from 10:00 a.m. on Christmas Day until 10:00 a.m. on Boxing Day when the regular parenting time

schedule will resume. 5. On an interim basis, J.A.T. may determine the parenting time

schedule during any other school closures that occur during the school year as a result of the following: i. National Day for Truth and Reconciliation ii. Thanksgiving Day iii. Remembrance Day iv. Winter Break

v. Family Day vi. Spring Break vii. Good Friday viii. Easter Monday ix. Victoria Day 6. On an interim basis, starting in 2024 and every other year thereafter, during the Child’s summer holidays from school, S.Z. will have parenting time with the Child for the first two weeks commencing the first Sunday after the end of the current school year, and V.T. will have parenting time with the Child for the next two weeks of the summer holidays, commencing on the third Sunday after the end of the current school year. This

schedule will repeat for the balance of the Child’s summer holidays, ending with the commencement of school. 7. On an interim basis, starting in 2025 and every other year thereafter, during the Child’s summer holidays from school, V.T. will have parenting time with the Child for the first two weeks commencing the first Sunday after the end of the current school year, and S.Z. will have parenting time with the Child for the next two weeks of the summer holidays, commencing on the third Sunday after the end of the current school year. This

schedule will repeat for the balance of the Child’s summer holidays, ending with the commencement of school. 8. On an interim basis, S.Z. will have all other parenting time with the Child unless otherwise stated. 9. The determination of what is a school holiday and a non-instructional day will be made by reference to the [omitted for publication] Schools Calendar (School District [omitted for publication]). Changes to Parenting Time

Schedule 10. The parents are at liberty to agree to any changes in the parenting time schedule. 11. Notwithstanding the specific allocation of parenting time as set out in this order, the parents shall take into consideration any expressed wishes of the Child for a change in the parenting time

schedule and the parents are to exercise their best efforts to modify the parenting time

schedule accordingly. Cell Phone Use 12. During a parent’s parenting time, the Child is at liberty at his sole discretion to phone or communicate with the other parent through his cellular phone or such other means the Child chooses. Place of Exchange 13. When V.T.’s parenting time commences at the end of a school day, V.T. will be responsible for picking up the Child at the school. 14. When V.T.’s parenting time begins or ends on a day when school is not in session, the place for the exchange of the Child will be at the [omitted for publication]. 15.

The parties are at liberty to agree to any changes in the place for the exchange of the Child.

Parental Responsibilities [ 137 ] The May 24, 2016 order of Judge Pothecary provided that the parties share equally all parental responsibilities save that S.Z. had sole responsibility in selecting J.A.T.’s school and making decisions about counselling. [ 138 ] V.T. asks for an order that he also share the responsibility for choosing J.A.T.’s school. [ 139 ] S.Z. submits that due to the ongoing conflict, she should have the sole parental responsibility for deciding where J.A.T. will reside, with whom he will live and associate with, and J.A.T.’s education and activities. [ 140 ] The conflict between the parties has not focused on the choice of school or who J.A.T. lives or associates with.

J.A.T.’s activities are an issue for financial reasons, which I will discuss later in my Reasons. [ 141 ] I fail to see any material change in circumstances to justify a change in the existing order about parental responsibilities. I am also hopeful that my decision will resolve many of the disputes between the parties. As such, the existing order regarding parental responsibilities, as set out in para. 13 of the May 24, 2016 order of Judge Pothecary will remain in place.

I will however modify the wording of the order to explicitly name the parental responsibilities. [ 142 ] I am aware that the parents’ difficulties with acting cooperatively may interfere with the exercise of their parental responsibilities. If this continues in future, this Court may need to re-allocate the responsibilities. [ 143 ] My order regarding parental responsibilities is as follows: 16. Pursuant to s. 40(2) of the Family Law Act , V.T. and S.Z. will share equally the following parental responsibilities for the Child as set out in s. 41 of the Family Law Act :

a) Making day to day decisions affecting the Child and having day to day care, control and supervision of the C hild;

b) Making decisions about where the Child will reside;

c) Making decisions respecting with whom the Child will live and associate;

d) Making decisions respecting the Child's participation in extracurricular activities, including the nature, extent and location;

e) Making decisions respecting the Child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the Child is an aboriginal child, the child's aboriginal identity;

f) Subject to s. 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the C hild;

g) Applying for a passport, licence, permit, benefit, privilege or other thing for the C hild;

h) Giving, refusing or withdrawing consent for the Child, if consent is required;

i) Receiving and responding to any notice that a parent or guardian is entitled or required by law to receive;

j) Requesting and receiving from third parties health, education or other information respecting the C hild, except in relation to health care provided pursuant to s. 17 of the Infants Act;

k) Subject to any applicable provincial legislation; a. Starting, defending, compromising or settling any proceeding relating to the Child; and b. Identifying, advancing and protecting the Child's legal and financial interests;

l) Exercising any other responsibilities reasonably necessary to nurture the Child’s development. 17. Pursuant to s. 40(2) of the Family Law Act , S.Z. will solely have the parental responsibility to make decisions respecting the Child's education, including the choice of school. Review of Parenting Arrangement Order [ 144 ] I will permit a review of the order for parenting time and parental responsibilities, but such an application cannot be applied for before April 1, 2024. This will allow some months to determine the impact of this order and whether further changes are needed.

Child Support [ 145 ] The May 24, 2016 order of Judge Pothecary set out a shared parenting time arrangement. [ 146 ] Although not specifically stated in the order, Judge Pothecary set out child support as a set-off between the child support obligations of each parent. This is contemplated by s. 9 of the Federal Child Support Guidelines . [ 147 ] Judge Pothecary imputed to S.Z. a Guideline income of $16,640 and set her child support obligation at $126 a month.

V.T. was found to have a Guideline income of $60,587 and a child support obligation of $560 a month. [ 148 ] Given the date of Judge Pothecary’s order, the determination of the child support was based on the 2011 Child Support Guideline Table . The updated 2017 Child Support Guideline Table came into effect on November 22, 2017. [ 149 ] Judge Pothecary went on to set child support payable by V.T. at $436 a month based on a set-off of the parties’ respective child support obligations. An actual set-off of the child support obligations results in an amount of $434.

This may have been an error in Judge Pothecary’s order. However, when I refer to the 2011 Child Support Table and use V.T.’s income of $60,587, I arrive at a child support amount of $562 per month rather than the $560 stated in Judge Pothecary’s order. A set-off amount of child support based on a support obligation of $562 less $126 is $436, the amount that V.T. was ordered to pay. [ 150 ] Judge Pothecary ordered the annual exchange of tax information to occur on May 31 of each year starting May 31, 2017.

The tax information to be supplied would be for the most recent taxation year. [ 151 ] The May 24, 2016 order went on to state at item 24: The set-off of child support shall be adjusted in accordance with the parties’ new Guideline incomes as at July 1, 2017 and every July 1, 2017 for so long as child support is payable.” [ emphasis added ] [ 152 ] In my view, the reference to an adjustment every July 1, 2017, was in error and the order should have referred to an adjustment date of July 1 of each year after 2017. [ 153 ] The December 29, 2021 court order of Judge Smith also called for an annual exchange of financial information and an annual adjustment of child support. [ 154 ] Despite these orders, the parties have never exchanged their financial information.

Both parties now ask that I carry out the calculations and make the annual adjustments that should have already been made. [ 155 ] Given that previous court orders contemplated an annual adjustment of child support, there is no requirement for a material change of circumstances.

[ 156 ] Neither party provided evidence or submissions that the amount of support payable under s. 9 of the Federal Child Support Guidelines should be adjusted taking into account s. 9(

b) or (c). Therefore, I will rely just on s. 9(

a) and set the amount of support payable based on a set-off. [ 157 ] The September 21, 2021 order of Judge Dossa set out a child support amount of $232 a month payable by V.T. This order was made at a Family Management Conference, where no evidence was presented. The order did not set out an income amount, and it was made on an interim basis. An interim order does not prevent me from reviewing the evidence at trial and making a final order regarding child support. By their very nature, interim orders are made without prejudice to a final order.

On that basis, I am not bound by the interim child support amount set in the September 21, 2021 order: see Routkovskaia v. Gibson , 2020 BCCA 189 at para. 19 ; K.W. v N.Q , 2021 BCSC 2495 at paras. 57 – 59 . [ 158 ] On October 27, 2022, Judge Smith made an interim order setting a parenting time

schedule and a child support order. Judge Smith had the benefit of V.T.’s Financial Statement filed on October 21, 2022, declaring an income of $62,157 and making a claim of undue hardship. V.T. told the court he anticipated receiving a current income of $55,000 a year. Based on this, Judge Smith made an interim order setting child support at $517 a month starting November 1, 2022.

This was to be recalculated annually by the Provincial Child Support Recalculation Service, referred to in the Order as the “provincial child support service.” For the reasons I referred to earlier, an interim order does not bind me when I make a final support order. As the evidence before Judge Smith was limited and the order was interim, I do not consider the October 27, 2022 order binding on me. [ 159 ] V.T.’s Notice of Assessment for the 2022 taxation year showed an income of $53,137.

Absent any change in circumstances, this would be the income amount used to base child support starting July 1, 2023. [ 160 ] Although V.T.’s Financial Statement filed on October 21, 2022, referred to an undue hardship claim, his most recent Financial Statement filed on May 9, 2023, did not. No claim of undue hardship was mentioned at trial, and little evidence was called to support such a claim. I proceed on the basis that no undue hardship claim is being made.

Child Support due Starting July 1, 2017 [ 161 ] The 2011 Child Support Table will still apply to determine the amount of support payable as of July 1, 2017. [ 162 ] Neither party supplied me with income information for the 2016 taxation year. In those circumstances, the findings of each party’s income will remain in place. [ 163 ] V.T.’s income is imputed at $60,587 and his child support obligation is $562 a month. S.Z.’s income is imputed at $16,640 and her child support obligation is $126 a month. The set-off amount is $436 a month payable by V.T. starting July 1, 2017.

Child Support due Starting July 1, 2018 [ 164 ] The 2017 Child Support Table will apply to calculate the support payable starting July 1, 2018. [ 165 ] For the 2017 taxation year, V.T. did not provide any income information. Ms. Barna invited me to impute income to V.T. for 2017. As the only information I have about his income is the finding previously made by Judge Pothecary, I will impute income to V.T. of $60,587 for the year 2017, with a resulting child support obligation of $573. [ 166 ] S.Z.’s income in 2017 based on her T4 slip was $6,424.73.

Judge Pothecary had previously imputed income to S.Z. of $16,640. This would represent a finding that S.Z. could earn an income of $16,640. [ 167 ] Child support orders are based on a person’s ability to earn income, not on the actual income earned: Levine v. Levine , 2017 BCSC 801 at paras. 18 and 19 ; C.A.H. v. J.J. at paras. 54 to 65. [ 168 ] I refer to the decision Colucci v.

Colucci , 2021 SCC 24 at para. 63 , where the court stated: [63] Of course, a payor whose income was originally imputed because of an initial lack of disclosure cannot later claim that a change in circumstances occurs when he or she subsequently produces proper documentation showing the imputation was higher than the table amount for their actual income. The payor cannot rely on their own late disclosure as a change in circumstances to ground a variation order (Gray, at paras. 33-34).

This would “defeat the purpose of imputing income in the first place” and act as “a disincentive for payors to participate in the initial court process” (Trang v. Trang, 2013 ONSC 1980 , 29 R.F.L. (7th) 364, at para. 53 ). [ 169 ] I do not know why Judge Pothecary imputed income to S.Z. but having done so, I am bound by her finding that S.Z. could earn at least $16,640 per annum.

As such, for the 2017 taxation year, S.Z. is imputed to have an income of $16,640 and a resulting child support obligation of $105 a month, which is the amount due under the 2017 Child Support Guidelines . [ 170 ] Commencing July 1, 2018, V.T. is required to pay child support of $468 a month. Child Support due Starting July 1, 2019 [ 171 ] For the taxation year 2018, V.T.’s notice of assessment showed an income of $67,919, which resulted in a child support obligation of $645 a month. [ 172 ] S.Z.’s 2018 income tax return showed a line 150 income of $9,521.1.

I remain bound by the imputation of income of $16,640 and as such S.Z.’s child support obligation is $105 a month. [ 173 ] Commencing July 1, 2019, V.T. is required to pay child support of $540 a month. Child Support due Starting July 1, 2020

[ 174 ] V.T.’s 2019 Notice of Assessment showed a line 15000 income of $64,380 for a child support obligation of $611 a month. [ 175 ] S.Z.’s 2019 Notice of Assessment showed a line 15000 income of $29,320 for a child support obligation of $271. [ 176 ] Commencing July 1, 2020, V.T. is required to pay child support of $340 a month.

Child Support due Starting July 1, 2021 [ 177 ] V.T.’s 2020 Notice of Assessment showed a line 15000 income of $61,437 for a child support obligation of $582. [ 178 ] S.Z.’s 2020 Notice of Assessment showed a line 15000 income of $29,320 for a child support obligation of $271. [ 179 ] Commencing July 1, 2021, V.T. is required to pay child support of $311 a month. Child Support due Starting April 22, 2022 [ 180 ] On April 22, 2022, I made an order changing the parenting time schedule.

At that point, V.T. had less than 40% of the parenting time such that s. 9 of the Federal Child Support Guidelines no longer applied. As of May 1, 2022, there would no longer be a set-off of the child support. Since this is still before the next child support adjustment date of July 1, 2022, I will base the child support payable as of May 1, 2022, on V.T.’s 2020 income. [ 181 ] V.T.’s 2020 Notice of Assessment showed a line 15000 income of $61,437 for a child support obligation of $582. Accordingly, the child support payable as of May 1, 2022, is $582 a month.

Child Support due Starting July 1, 2022 [ 182 ] V.T.’s 2021 Notice of Assessment showed a line 15000 income of $63,144 which is a child support obligation of $598 a month. [ 183 ] Starting July 1, 2022, V.T. is to pay child support of $598 a month. Loss of Employment [ 184 ] Effective May 15, 2023, V.T. was laid off from his employment as a truck driver. There is no evidence to suggest he was at fault for losing his employment. Counsel for S.Z. suggested I should still impute income to V.T. based on his past employment earnings, but there was no evidentiary basis for an imputation of income.

V.T. did not quit his employment, he lost his job for reasons beyond his control. [ 185 ] V.T. was offered a severance package but he has not accepted the proposal, instead wishing to consult with an employment lawyer. [ 186 ] V.T. did not start receiving Employment Insurance benefits until mid-July 2023. He advised that the amount being received was $1,200 biweekly which works out to $28,800 a year.

V.T. did not provide a benefit statement to confirm this. [ 187 ] Based on V.T.’s information that he was not in receipt of income for some time, I will cancel the obligation to pay child support for June and July 2023. [ 188 ] Starting August 1, 2023, V.T. is imputed to have an income of $28,800 and his child support obligation is $265 per month commencing August 1, 2023. [ 189 ] The cancellation of support for June and July 2023 and the amount of support payable starting August 1, 2023, will be subject to review, which I will discuss later in my Reasons.

Determination of Arrears or Overpayment [ 190 ] I was not told what amounts of support were paid by V.T. so I cannot calculate an amount for support arrears or over-payment, if any. There was no indication that this court file was enrolled with the Family Maintenance Enforcement Program, which could have carried out the calculation. [ 191 ] If the parties require a calculation, this can be set before me by filing a Form 39 Request for Scheduling to reschedule the Application About a Family Law Matter filed July 27, 2021, which application must be supported by evidence of payments made by V.T.

I will seize myself of any such application so long as it is filed on or before April 1, 2024. After that date, any judge may hear the application.

Special and Extraordinary Expenses [ 192 ] S.Z. seeks an order for a proportionate sharing of special and extraordinary expenses. [ 193 ] The most recent income information I have for S.Z. is from her 2022 income tax return, which showed a line 15000 income of $35,427.92, which I rounded off to $35,428. [ 194 ] I have imputed income to V.T. of $28,800. [ 195 ] The total of their income is $64,228, and the share of expenses on a proportionate basis would be S.Z. 55% and V.T. 45%. [ 196 ] S.Z. asks that the parties share in the following expenses:

a) Any expenses for registration or participation in any extracurricular activities the Child wishes to participate in.

b) Any school-related expenses for any activities the Child wishes to participate in including sports, field trips and school supplies.

c) All expenses listed under s. 7 of the Federal Child Support Guidelines , which includes the following: (

i) child care expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time; (ii) that portion of the medical and dental insurance premiums attributable to the Child; (iii) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (iv) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the Child’s particular needs; (

v) expenses for post-secondary education; and (vi) extraordinary expenses for extracurricular activities. [ 197 ] Before any obligation can be imposed for payment of expenses under s. 7 of the Federal Child Support Guidelines , the expenses must be necessary and reasonable and fall into the categories listed at s. 7(1)(

a) to (f). To seek what is essentially an unlimited order based on whatever activities the Child wishes to participate in ignores these requirements. [ 198 ] Furthermore, the reasonableness of an expense must take into consideration each parent’s ability to pay. At present, given V.T.’s lack of employment, I am not satisfied he can pay special or extraordinary expenses in addition to child support. Even if he were employed, I would not order V.T. to pay what may be an unlimited amount. [ 199 ] I did consider a cap or maximum on the amount of expenses payable by V.T.

However, given V.T.’s current income, I am not prepared to make any order requiring payment of special or extraordinary expenses at this time. [ 200 ] This application will be adjourned generally with leave for S.Z. to reschedule the application for special or extraordinary expenses when there is a change in V.T.’s financial circumstances or new evidence in support of an application to impute income to V.T. [ 201 ] I will be seized of any such application for payment of special or extraordinary expenses so long as it is filed on or before April 1, 2024, after which the application may be heard by any judge.

An application for payment of special or extraordinary expenses is to be sought by filing a Form 39 Request for Scheduling to reschedule before me the Application About a Family Law Matter filed July 27, 2021. Such an application must be supported by evidence of S.Z.’s current income, including a Form 4 Financial Statement . Disclosure and Confirmation of Employment Insurance Benefits [ 202 ] V.T. did not have any documentary evidence to confirm when he started to receive Employment Insurance benefits or the amount.

To confirm this information, I will require that within 30 days of the date of this order, V.T. provide S.Z. or her legal counsel with written proof of when he started to receive Employment Insurance benefits, the amount of the benefits and the maximum duration that the benefits will be paid. [ 203 ] Either party has leave to apply for a review of ongoing child support when the disclosure of Employment Insurance benefits has been made, or if it has not been made as ordered.

I am seized of this review which can be applied for by filing a Form 39 Request for Scheduling to reschedule before me the Application About a Family Law Matter filed July 27, 2021. I reserve the right to make further adjustments to the child support payable by V.T. based on the information received. I also reserve the right to make further orders if the information is not provided as ordered. Disclosure of any Employment, Changes in Income, and Job Search Efforts [ 204 ] Given the present uncertainty about V.T.’s income, I will require that he disclose to S.Z. any changes in his employment and income.

This is not information that can wait until May 31, 2024, the next deadline for an annual disclosure, since it affects the amount of support payable for the Child’s benefit. [ 205 ] As I stated previously, child support is based on the amount of income a payor is capable of earning rather than actual earnings. V.T. is under an obligation to make reasonable efforts to seek employment and maximize his income. S.Z. is entitled to monitor those efforts.

I order that starting November 1, 2023, and on the 1 st day of each month thereafter, V.T. will provide S.Z. in writing with the name and address of each business or person he has contacted to seek employment, including details of the employment sought, and the results of each employment application if known. This obligation will end once V.T. stops seeking employment, in which case he must inform S.Z. in writing of the reasons.

If V.T. obtains employment, he is to forthwith provide S.Z. with the name and address of the employer, and the particulars of the employment including the start date, rate of pay, hours of work and expected monthly income. [ 206 ] I also order V.T. to forthwith report in writing to provide S.Z. (1) any changes to his financial circumstances including the receipt of Employment Insurance benefits, severance pay, or any compensation paid for his loss of employment; and (2) whether any proceedings have been initiated through the Employment Standards Branch or the Courts about the loss of employment, and if so the results of those proceedings including particulars of any settlement or award.

Review of Child Support

[ 207 ] For the period from June 1, 2023, up to but not including the next review date of July 1, 2024, if there is a change in V.T.’s financial circumstances, which reasons may include employment, receipt of severance, or the loss of Employment Insurance benefits, I give leave to either party to apply to have the amount of child support payable from June 1, 2023, to June 30, 2024, reviewed by me. I am seized of any such review so long as it is filed on or before April 1, 2024. An application for a review filed after April 1, 2024, may be heard by any judge.

An application for a review is to be sought by filing a Form 39 Request for Scheduling to reschedule before me the Application About a Family Law Matter filed July 27, 2021. Child Support Adjustment for July 1, 2023 [ 208 ] As set out in previous orders, the annual adjustment date for child support is July 1. Subject to any review of child support as set out earlier, I will not adjust child support as of July 1, 2023, given V.T.’s loss of employment.

Even though the support amount is based on the prior year’s income, the payment of support is from current income, which amount has already been set based on the Employment Insurance benefits. Annual Adjustment of Child Support starting July 1, 2024 [ 209 ] In keeping with the intention of past orders, child support will be recalculated each year on July 1, starting July 1, 2024. The Provincial Government has set up a service for this and so I order that the Child S

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