S.B. v A.S., 2010 BCSC 2029

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: S.B. v A.S., 2010 BCSC 2029 Date: 20101217 Docket: 99-0824 Registry: Victoria Between: S.B. Plaintiff And: A.S. Defendant Notice: This judgment was edited for publication purposes on March 6, 2014 Before: The Honourable Mr. Justice G.R.J. Gaul Oral Reasons for Judgment Counsel for the Plaintiff: G. Coad Counsel for the Defendant: T. Rodgers Place and Date of Trial/Hearing: Victoria, B.C. August 31, September 1, 2, 3, 28 and 30, October 1 and November 22, 2010 Place and Date of Judgment: Victoria, B.C.

December 17, 2010 [ 1 ] THE COURT: I have before me two applications in this family law matter. The focal point of both applications is the parties’ 12-year old daughter A.T. [ 2 ] The first application is that of the plaintiff, S.B. In his notice of motion filed 7 June 2010, S.B. seeks a variation of an order made by Mr. Justice Joyce on 29 February 2008. I will call that the “Joyce Order”. All of the amendments to the Joyce Order sought by S.B. relate to the custody, care and well-being of A.T. [ 3 ] The second application is of the defendant A.S.

On account of her recent marriage, A.S. now goes by the surname of R. I will refer to the defendant as Mrs. R. in these reasons. In her notice of motion filed 21 June 2010, Mrs. R. seeks an order incorporating terms all of which are focussed at re-establishing her relationship with A.T. [ 4 ] These applications were previously set for a one-day hearing in chambers on 23 August 2010 before Mr. Justice Macaulay.

Given the remarkable history of this case, the magnitude of the animosity between the parties, and the quantity of materials filed, it comes as no surprise to me that Justice Macaulay struck the matters from the chambers list and referred them for trial. In doing so, he apparently directed that the affidavit materials that had been filed could become evidence at the trial and that the parties would only need to call the essential witnesses to testify.

I say “apparently” because no formal order has been filed setting out the terms of Justice Macaulay’s decision. [ 5 ] Three days were set aside for what was to have been a mini-trial. The actual trial took the better part of eight days. I say this not to be critical of counsel or of the parties, but to underscore the seriousness and determination with which both sides have approached this litigation. I recognize the issues are important for both S.B. and Mrs. R. The Issues [ 6 ] There are four issues that I must address:

a) custody and guardianship of A.T. and the amount of time the non-custodial parent will have with her;

b) child support;

c) extraordinary expenses, and

d) miscellaneous matters. The Facts [ 7 ] The history of this matter has been recorded a number of times in various judgments of this court over the years. There is no need for me to repeat that history. All that needs to be said at this point is that the parties are the biological parents of A.T., born on 29 August 1998. She is presently 12 years old. S.B. and Mrs. R. ended their brief relationship prior to the birth of their daughter.

They have been arguing over A.T.’s custody and guardianship and related issues ever since she was born. [ 8 ] The plaintiff’s case consisted of S.B.’s testimony as well as that of Mr. Douglas Emid. The defendant’s case was comprised of Mrs. R.’s testimony as well as her husband’s, Mr.

R. [ 9 ] As I mentioned at the outset of these reasons, I also have a number of affidavits before me for these four witnesses, as well as others. [ 10 ] A relatively unique facet of this trial was the fact that, at the request of both parties and with their express consent, A.T. testified before me while they, the parties, and their counsel were not present in court. Again, at the parties' request, the recording of A.T.'s evidence has been sealed and will not be accessible by anyone without further order of this court. [ 11 ] I have considered all of the testimony in this case, including what A.T. has told me.

I have also perused the various affidavits and exhibits that have been filed. [ 12 ] Much like Mr. Justice Joyce observed in his reasons for judgment dated 29 February 2008, I find both sides of this litigation are loving parents with supportive partners. Sadly, the parties’ mistrust and deep-seated hostility towards each other seems to cloud their ability to work in a cooperative manner on issues relating to their daughter. [ 13 ] Based on the evidence before me, I have reached the following conclusions:

a) All matters relating to the care and custody of A.T. are presently governed by the terms of the Joyce Order dated 29 February 2008.

b) In the fall of 2009, the ever-present and simmering antagonism between S.B. and Mrs. R. erupted with A.T. caught in the middle. The triggering event was S.B.'s attempt to enrol A.T. in Glanford Middle School (“GMS”) over the objection of Mrs. R. A.T. had been attending Pacific Christian School (“PCS”) and was already enrolled to attend there in the fall of 2009, for the 2009/2010 school year.

c) A “showdown” developed between S.B. and Mrs. R. with respect to A.T.’s schooling. A.T. became aware of the dispute and expressed a desire to change schools and attend GMS. In late August 2009, A.T. spoke rudely to her mother about what she believed was her mother's unreasonable objection to her attending GMS.

d) A.T. began refusing to see or speak with her mother, notwithstanding the terms of the Joyce Order.

e) There was sporadic contact between A.T. and Mrs. R. in the fall of 2009; however, the relationship was a tense and deteriorating one. A.T. was clearly angry at her mother and blamed her for not being able to attend GMS.

f) Around this same time, Mrs. R. and Mr. R. were in the midst of finalizing their plans for a fall 2009 wedding. They were also making arrangements to move into their new family home.

g) When Mrs. and Mr. R. returned from their honeymoon in late 2009, A.T. wanted nothing to do with them. She felt hurt and neglected by her mother and expressed a desire to spend most of her time with her father at his home.

h) Mrs. R. recognized the pressure that A.T. was under and believed the source of that pressure was S.B. In an effort to diffuse the situation and diminish the stress on A.T., Mrs. R. ceased contacting A.T. from approximately December 2009 until June 2010.

i) At or around the same time she was served with S.B.'s notice of motion in the summer of 2010, Mrs. R. re-engaged her efforts to contact and re-establish a relationship with A.T.

j) By this time, A.T. had been seeing Mr. Emid, a counsellor, and with his assistance, she was working through the confusion and anger she was feeling towards her mother.

k) Although sceptical of Mr. Emid's ability to be impartial, given that he had been retained by S.B. and had refused to listen to a recording of a 13 September 2009, conversation between A.T. and S.B., Mrs. R. made a genuine attempt to participate in some of her daughter’s counselling sessions with Mr. Emid.

l) I found Mr. Emid's evidence convincing and I found him to be a credible witness. While I understand why Mrs. R. might be sceptical, I do not find her belief to be well founded. I would encourage her to continue to make an effort to work with Mr. Emid. I will have more to say about that later.

m) S.B. has been making child support payments through the Family Maintenance Enforcement Program (“FMEP”), but the most recent payments are being held in trust pending the outcome of these applications. Assessment of the Present Situation [ 14 ] The present situation is not a healthy one for A.T., and the parties are at a critical stage in her life.

[ 15 ] Although I do not consider it to have been a formal abandonment, Mrs. R. did withdraw from A.T.'s life for the period from late 2009 until the summer of 2010, and I accept that A.T. has been deeply hurt by this and feels significant confusion over her mother’s actions. [ 16 ] Furthermore, although I am not convinced that it was part of a deliberate attempt or plan to alienate A.T. from her mother, I find the conversation S.B. and his wife, Mrs. B,. had with A.T. on 13 September 2009 placed heavy and inappropriate pressure on A.T. to make a decision that a child her age should not have to make.

That decision was to pick who she wanted to live with full-time: her father or her mother. The manner and tone in which S.B., and to a lesser degree Mrs. B, spoke to A.T. clearly placed the child in an uncomfortable and untenable position. It is no wonder to me the child appeared confused, anxious, and frustrated during the latter part of the conversation. [ 17 ] While counsel for Mrs. R. has encouraged me to conclude from this and from all of the other evidence, that S.B. has endeavoured to alienate A.T. from her mother, at this point in time I am not persuaded that is a fact.

I agree that there is evidence that points to such a conclusion; however, presently I cannot reach that conclusion. Although the partial recording of the telephone call exhibits signs of S.B. trying to pressure A.T. into making a decision, he explained that the first portion of the conversation, had it been recorded, would have placed the latter portion in its proper context and would have made it clear that he was not attempting to alienate A.T. from her mother.

I am in no position to reject S.B.’s explanation and therefore I give him the benefit of the doubt. [ 18 ] I do, however, find that S.B. has violated the terms of the Joyce Order by allowing A.T. to decide where she was to live in the fall of 2009. It was not for S.B. to give A.T. that option or that power. The Joyce Order was made in the best interests of the child and its terms were clear. Those terms should have been followed.

Even if A.T. expressed a desire that conflicted with the terms of the order, it was S.B.’s responsibility to enforce those terms or re-attend before the court to have them reviewed and possibly amended. [ 19 ] I will note in passing that having already been informed once by Mr. Justice Melvin of this court about the need to comply with the terms of court orders and not to circumvent them under the guise of trying to abide by the spirit of the order, I find S.B. should have done more to encourage A.T. to spend time with her mother.

He should also have made greater efforts to ensure the terms of the Joyce Order were respected. [ 20 ] Mrs. R. is not fault-free either. She too has had difficulty complying with court orders, and in the present circumstances, she consciously chose to step out of her child's life for a significant period of time and in doing so she contributed to the breakdown of the custodial regime established by Mr. Justice Joyce. I understand the frustration and isolation Mrs. R. may have felt; however, I find her actions contributed to it.

Therefore, in my view it would be incongruous with the circumstances of this case for the court to order S.B. to pay child support to Mrs. R. when the child was not residing with her for that period. [ 21 ] In my opinion, there is a significant need for A.T. to be reunited with her mother, her half-sister, and her new stepfather. A.T. should be allowed and encouraged to develop healthy, happy relationships with both sides of her family. That should be the focal point of the parties. It is assuredly the goal of the order that will result from this decision.

Decision [ 22 ] It is an uncontested truth that I must give A.T.'s best interests paramount consideration. Given the present circumstances, I find there are justifiable grounds to consider amending the provisions of the Joyce Order. I find the period of time that Mrs. R. was intentionally absent from A.T.’s life and the consequences that absence has caused for the child, is a sufficiently material change in circumstances to warrant reconsidering the custody arrangements for A.T. [ 23 ] As I have previously noted, I have considered all of the evidence presented, including what A.T. said when she testified.

I have read the affidavit material, and I have reviewed the exhibits filed during this hearing. That includes listening to the partial recording of the telephone conversation of 13 September 2009. [ 24 ] I have placed significant weight on the evidence of Mr. Emid. Mr. Emid has been a registered clinical counsellor for 35 years. He has been counselling A.T. since the fall of 2009, and according to Mr. Emid, she is doing well.

His evidence indicates, and I quote: The original goals for A.T.'s counselling were to help her to develop insights into herself and others, and to provide A.T. with a forum for discussion of her feelings regarding her custody and access arrangements. [ 25 ] I think that is a laudable goal and it should be continued. [ 26 ] Mr. Emid testified that A.T. was doing well at counselling.

Although he was not qualified as an expert witness, he did provide his views that in the present circumstances, where there has been a significant amount of time where A.T.'s mother has been absent from her life, it would be unwise to force -- and I use the word force -- force an immediate and full-scale reunion. Instead, he recommends a staged reintroduction of Mrs. R. into A.T.’s life, with the hope that there will be an eventual complete resumption of the mother-daughter relationship. [ 27 ] The only aspect of Mr.

Emid's evidence that gave me some cause for concern was his disinclination to listen to the recording of the 13 September, 2009 telephone conversation. I accept that the fact that only a portion of the conversation was recorded leaves it open to misinterpretation or to being taken out of context. Moreover, I accept that Mrs. R.’s late disclosure of the recording, at a time when A.T. was already engaged in counselling with Mr. Emid, posed problems for Mr. Emid as well. Nevertheless, I believe at this point in time it would be appropriate for him to listen to the recording, if he has not already done so.

Listening to this recording will confirm his preparedness and ability to consider both sides of this dispute and will assist in assuaging any lingering concern Mrs. R. may have that he is a not neutral observer and counsellor. Whatever information Mr. Emid may derive from listening to the recording, and whatever additional insights he may gain about the dynamics that exist between S.B., Mrs. R., and A.T., may be of potential benefit to him. I say “potential”, because of the possibility the conversation could be taken out of context.

Notwithstanding that hesitation, I am confident that, with his years of experience, Mr. Emid will be able to objectively listen to the recording and determine for himself if it assists him in dealing with A.T.

[ 28 ] While the fault for the imposition of the abominable stress that has been placed on A.T. rests with both parties, I find a larger portion lies with S.B. The parties clearly have different parenting styles and they cannot accept the fact that each style has benefits. S.B. appears to be more structured with multiple activities for A.T. Mrs. R.'s appears more casual with fewer activities. There is also the reality that Mrs. R. has a medical condition that at times limits her activity level. [ 29 ] S.B. seems to be intolerant of Mrs.

R.'s approach to parenting A.T. and the fact that her household appears to be more unstructured than his. An unstructured environment for a child is not, per se , harmful to a child. There must be a balance. Children need structure in their lives and they need boundaries. They also need free time to make their own choices and, within reason, to do as they please. A.T.is clearly a fine young athlete. However, that is not her entire life. She must be permitted the level of freedom appropriate for a 12-year-old to develop her own interests. She must be given time to be creative.

It would appear the opportunity to develop this important facet of her personality is more prevalent at Mrs. R.'s home than S.B.'s. The focus of S.B.'s structured household seems to be athletics, and in particular baseball and basketball. That is healthy, but I repeat, there must be a balance.

Too much structure focused on one thing, such as athletics, at the expense of other interests or endeavours, including simple downtime, is not, in my respectful view, a good thing for a child. [ 30 ] In my opinion, it has been a mistake to allow A.T. to develop the sense that she can, to a great degree, control the situation regarding her custody arrangements; and by this I mean a sense that she can choose which school she attends, which sports she plays and when she plays them, and finally, which residence will be her principal domicile.

While her views on all of these issues are important, and parenthetically that is one of the reasons why I acceded to hearing her in the manner that I did, it must not be forgotten that she is only 12 years old. That means she is still a child in need of parental guidance. [ 31 ] In my view, A.T. should not have been encouraged, in the manner that she was, to decide where she wants to live. That opportunity gave her an artificial sense of empowerment, one that a child should not have.

Naturally, parents should listen to their children and take their feelings into consideration; however, when dealing with someone as young as A.T., the decision about where she is going to live should be made by adult parents, not the child. Custody and Guardianship [ 32 ] I have decided to deny S.B.'s application for sole custody and guardianship.

I have done so because I find there has been too much pressure placed on A.T. and it would be unwise to change those terms of the Joyce Order at the moment. [ 33 ] In my view there needs to be a cooling-off period to allow for a genuine effort to be made to re-establish a healthy mother-daughter relationship between A.T. and Mrs. R. Mr. Emid will be able to coordinate and assist with this.

Given the amount of time that has elapsed since the first day of this hearing, this period has probably already commenced; however more is needed in my opinion. [ 34 ] The parties will therefore continue to share custody and guardianship of A.T. pursuant to the order of Mr. Justice Joyce. However, I find it is necessary to temporarily amend the Joyce Order so that the state of her principal residence is addressed. A.T. is presently living with her father on a regular basis; that is the status quo .

I do not wish to dramatically change that at the moment; however there is a need to move towards the re-establishment of a healthy relationship with her mother and her extended family. That will take some time, but it needs to begin. [ 35 ] I said earlier in my reasons that this reintegration of A.T. into Mrs. R.’s life and vice versa should not be forced immediately upon the child; it should be a gradual process, and therefore to foster that process, I am making the following order:

a) From the date of this order until 31 March 2011, or such later date as the parties in advance agree to in writing: i. A.T.'s principal residence will be with S.B.. ii. A.T. will spend at least two weekends per month with her mother. I encourage the parties to try and reach a consensus on additional time; however if they cannot, then it will only be two weekends per month. Also, unless otherwise agreed to by the parties, a weekend will begin once the school day has ended on the Friday if there is school or from 3:00 p.m. on the days there is no school until 8:00 p.m. on the Sunday. iii.

Either parent shall have the right to speak privately with A.T. by means of telephone, audio and/or video Internet link or any other form of telecommunication for 15 minutes between 5:00 p.m. and 8:00 p.m. on any day that they do not have A.T. in their custody. iv. A.T. is not to be enrolled in any further extracurricular activities without the expressed prior written approval of both parents. v. Within the next 14 days, both parents are to execute and deliver to each other a signed authorization permitting A.T. to travel to the United States with the other parent.

Child Support [ 36 ] I have already indicated that I find S.B. did violate the specific terms of the Joyce Order in that he did not take sufficient steps to ensure that A.T. spent the requisite time with her mother. [ 37 ] I understand that it is difficult at times to force a young person of A.T.’s age to do something when they do not want to. Nevertheless, children whose parents live separate and apart must be firmly encouraged to maintain contact with both of their parents and on the evidence before me I am not convinced S.B. has done so.

Instead, I find that to a great extent he allowed A.T. to dictate what happened to her and allowed her to choose the result that he preferred and wished for; that is, living with him full-time. [ 38 ] The court will not condone or reward this behaviour. Consequently, with respect to child support, there will be no order that Mrs. R. pay S.B.i child support retroactively to December 2009. In reaching this conclusion, I want both parties to know that I have not

singled out S.B. in this regard, and I agree with the submissions of Mr. Coad that Mrs. R. has also failed to comply with the terms of court orders in the past. My point is both parties have found it difficult and have, at times, failed to comply with court orders. [ 39 ] In light of the fact that A.T. will be principally resident with S.B. for the next three months, I find it is appropriate to suspend S.B.’s obligation to pay child support and order that Mrs. R. pay child support to S.B. for that period. The calculation of that amount is presently next to impossible, because of a lack of evidence regarding Mrs.

R.'s actual income, including rental income that is now coming into the household as a result of a rental suite in their home. [ 40 ] I accept Mr. Coad's argument that Mrs. R.'s income, whether actual or imputed, is likely higher than presently disclosed. Consequently, for the months of January, February, and March 2011, Mrs. R. will pay S.B. $100 per month in child support and that these payments are to be received by S.B. on or before the 1st of the month.

In my opinion, A.T. wants to know and needs to know that her mother is prepared to pay child support for her. [ 41 ] A hundred dollars may not or it may be a lot of money for the parties, but it is an indication, a recognition, that Mrs. R. has an obligation towards her daughter and she will live up to it. A.T. will be in the day-to-day care of S.B. for the next three months and it is therefore appropriate that Mrs. R. recognize that and pay some form of child support. [ 42 ] If there is a need at a later date to reconsider the amount, I grant leave to reconsider it.

I have chosen a hundred dollars as a token amount. It may well be that the amount should have been higher, I do not know, that is why I grant leave to reconsider. [ 43 ] Mrs. R. seeks to have the amount of child support S.B. is presently obliged to pay increased. While Ms. Rodgers, Mrs. R.'s counsel, candidly and properly acknowledged that there was no formal application presently before the court in this regard, she argued that the court could entertain such a request under the parens patriae powers I have. Accepting for the moment that those powers do permit me to consider Mrs.

R.'s request, I find there is insufficient evidence before me to justify making such an order. I therefore decline to do so. Moreover, I should reiterate that S.B.’s obligation to pay child support to Mrs. R. is suspended for the interim period of time of this order, that is the period of time A.T. is principally resident with him. [ 44 ] With regard to the child support payments that S.B. has been making and that are being held by the FMEP, I find it would be unjust to order those funds released to Mrs.

R. when A.T. was, for practically all intents and purposes, in the exclusive custody of S.B. since December 2009. [ 45 ] However, those funds were set aside by S.B. for the benefit of A.T. Therefore, I order that the monies being held by the FMEP be returned to S.B., and that those funds be placed in an interest-bearing trust account or RESP in the name of A.T. In other words, those monies are to go to the benefit of A.T. Both parents are to be trustees of the account.

It may well be an unmanageable affair, only time will tell that, but my purpose in making this order and in creating this account for A.T. is to ensure that the funds that have been earmarked for her benefit or maintenance are actually used for that purpose.

Section 7 Extraordinary Expenses [ 46 ] The evidence with respect to this issue I find is lacking. The financial statements of the parties are dated and it would appear that Mrs. R.'s income may have increased, in light of the rental income that she is now receiving. [ 47 ] S.B. submits that he has incurred significant extraordinary expenses over the years for A.T. To a certain degree I accept that as a fact. He therefore seeks recognition for those expenses and an appropriate set-off of those expenses from any retroactive support payments Mrs.

R. may seek on account of pay increases S.B. has received over the years. [ 48 ] I have not entertained the request to consider a retroactive order for an increase in S.B.'s child support payments. Therefore, it is difficult, if not impossible, to calculate any set-off that S.B. may be entitled to and apply it to a possible finding of retroactive child support payments. [ 49 ] I accept that Mrs. R. should pay some of the expenses S.B.claims, on a pro rata basis. Again, given that it is unclear what Mrs. R.'s income is or should be, it is difficult to determine how much she owes. Moreover, as Ms.

Rodgers has pointed out in her submissions, some of the expenses claimed by S.B. are not appropriately claimable for a host of reasons, including they apparently predate the date of the Joyce Order. [ 50 ] I am disinclined to rule on this issue at this point in time until further evidence is placed before me and further submissions made. I will therefore adjourn the issue generally. If necessary, the parties may set the matter down for further argument on a mutually convenient date after 31 March 2011.

Schooling Fees [ 51 ] The parties cannot agree on a computation of the amount S.B. owes for his share of A.T.’s attendance at PCS. [ 52 ] Because A.T.'s half-sister was already enrolled at PCS, the school granted Mrs. R. a second-child discount when A.T. was enrolled. [ 53 ] S.B. says A.T.'s sister was going to attend PCS irrespective of whether A.T. attended the school, and therefore the costs of the sister’s schooling was a fixed cost.

In light of that fact, S.B. argues the entire second child discount should properly be attributed to A.T.'s tuition and that his share of that tuition should be calculated on that basis. [ 54 ] Mrs. R. argues that the total cost of the tuition of the two girls should be divided equally, so that S.B.receives a part, but not all of the benefit of the second child discount. [ 55 ] I find S.B.'s argument more persuasive and therefore rule in his favour on this issue. I understand that with this decision, counsel

will be able to calculate the amount owing. If there is a dispute on the actual amount, the parties have leave to apply. Counselling [ 56 ] I find counselling with Mr Emid has proven to be of assistance to A.T. Therefore, I am directing that A.T. is to continue her counselling with Mr. Emid, or any other person designated by Mr. Emid as his replacement in the event he is not able to continue. The parties will share the expense of Mr. Emid's counselling service, with S.B. paying 70 percent and Mrs. R. paying 30 percent. [ 57 ] I am also directing that Mr.

Emid, if he has not already done so, is to listen to the recording of S.B.'s conversation with A.T. of 13 September 2009. To ensure there is no suggestion that Mrs. R. has tampered with the recording, I am asking, because I am not going to direct counsel, I will ask counsel, Mr. Coad, to forward his copy of the recording to Mr. Emid, as well as a transcript that has been prepared. If that creates issues for you, Mr. Coad, I will hear from you. [ 58 ] MR. COAD: That's not a problem. Parenting coordinator [ 59 ] THE COURT: Mrs.

R. wants a parenting coordinator appointed so as to facilitate the decision-making process relating to A.T. S.B. opposes the request, pointing to the fact that such an initiative has been tried in the past under different guises and it has been unsuccessful. [ 60 ] I agree with S.B. I am not satisfied that the appointment of a parenting coordinator would be of any assistance to the parties at the moment.

Perhaps such a counsellor would be of assistances once A.T. has had an opportunity to reintegrate her mother into her life; however that has not happened yet and therefore I think it would be a futile initiative entailing unnecessary expense for the parties. [ 61 ] Unless both parties are fully committed to the idea of using a third party to assist them in resolving parenting differences, I am not satisfied that a court-imposed obligation to try would be of any assistance. [ 62 ] Having reached this conclusion, I do, however, believe it will be of assistance to the parties to have an impartial third party to turn to in the event of a dispute over the issues relating to A.T.

In that vein, I will be and am seizing myself of this case until further notice. Police Assistance [ 63 ] Mrs. R. has applied for an order authorizing and empowering the police to assist with the enforcement of my order as well as the Joyce Order. In particular, she seeks an order directing any police officer to arrest S.B. in the event there are reasonable and probable grounds to believe he has breached a term of the said orders. [ 64 ] I recognize there have been serious problems relating to A.T.'s physical transfer and transition from one household to another.

In my view, there is some merit to the application for a “police assist” clause; however such a term should more appropriately grant the police the ability to arrest either party, not just S.B., in the event they are found breaching a terms of either the Joyce Order or the order that results from these reasons. [ 65 ] As I said at the outset of these reasons, I believe the parties are at a critical moment in their personal and family history. It is a crucial time for A.T. and I cannot underscore that fact enough.

A.T. is clearly caught in the middle between the parties and significant, long-term harm may be caused to her if the parties continue their bitter conflict. I do not wish to heighten that conflict; I wish to diminish it. [ 66 ] Consequently, I will adjourn this portion of the application also; that is, the application for a police-assist clause.

I can advise the parties that it would be likely, although I have not predetermine the issue, that if the court granted such an order, it would be a broader order in that it would not just empower the police to arrest S.B. for any alleged breach of an order, it would authorize them to arrest Mrs. R. or any other person found intentionally breaching the Joyce Order or my order.

Summary [ 67 ] In

summary format, here are the terms of my order.

a) S.B.'s application for sole custody is denied.

b) The terms of the Joyce Order dated 28 February 2009, remain in force, except it will be varied, for an interim period, as follows: i. From the date of this order until 31 March 2011, or such later date as the parties in advance agree to in writing:

(1) A.T.'s principal residence will be with S.B..

(2) A.T. will spend at least two weekends per month with Mrs. R. Unless otherwise agreed to by the parties, a weekend will begin once school has ended on the Friday, or from 3:00 p.m. if there is no school that day, until 8:00 p.m. on the Sunday.

(3) Either parent will have the right to speak privately with A.T. for a period of 15 minutes between 5:00 p.m. and 8:00 p.m. on any day that they do not have A.T. in their custody.

(4) A.T. is not to be enrolled in any further extracurricular activities without the express prior written consent of both parents. ii. Within the next 14 days, both parties are to execute and deliver authorizations permitting A.T. to travel to the United States. The authorization is to be for a period of three months, ending 31 March 2011.

c) Unless ordered otherwise, on or after 1 March 2011, either party may apply for a review of the custody arrangements set out in this order or set out in the Joyce Order. In such an event, the applicant is to obtain from Mr.

Emid, or his designate, an updated report in affidavit form, informing the court of the status of A.T.'s counselling and any observations or recommendations he has regarding the custody arrangements currently in place for A.T. [ 68 ] While I am not ordering it, I will advise counsel and advise the parties, if the issue is to be reconsidered in the future, whether it is in March of next year or later, it would be of assistance and the court would be prepared to make an order, upon hearing from counsel, directing that an updated s. 15 Family Relations Act report be prepared.

The additional affidavit evidence from Mr. Emid will provide the court with necessary information about A.T.’s progress in counselling; however it would not, in my opinion, replace a properly prepared s. 15 report.

d) S.B.'s application for child support from Mrs. R. retroactive to December 2009 is denied.

e) For the months of January, February, and March of next year, Mrs. R. is to pay S.B. $100 per month in child support with the payments to be made and received by S.B. on or before the 1 st of each month. For the period of time that A.T. is principally resident with S.B., his obligation to pay child support to Mrs. R. is suspended.

f) Mrs. R.'s request for a retroactive increase in child support payments from S.B. is denied.

g) The child support payments from S.B. that are being held by FMEP are to be returned to S.B. and he is to deposit those funds in an interest-bearing account or RESP in trust for A.T. Both parties are to be trustees of such an account.

h) The consideration of the

section 7 special and extraordinary expenses relating to A.T. is adjourned generally with either party having liberty to set the matter down for additional argument on or after 31 March 2011. [Discussion with Counsel]

i) The parties are to provide each other with a copy of their most recent Canada Revenue Agency tax return on or before 31 May of each year, and a copy of any assessment notice they receive from the CRA within 21 days of its receipt.

j) The calculation of S.B.'s share of A.T.’s tuition at PCS is to be based upon A.T. receiving the full second-child discount.

k) A.T. is to continue her counselling sessions with Mr. Emid, or his designate, until at least 31 March 2011. The cost of those sessions is to be shared between the parties, S.B. paying 70 percent, Mrs. R. paying 30 percent. Furthermore, if Mr. Emid has not already done so, he is to listen to the recording of the 13 September 2008 telephone conversation between S.B., Mrs. B. and A.T.

h) Mrs. R.’s application for an order appointing a parenting coordinator is denied.

i) Mrs. R.’s application for a “police-assist” clause is adjourned generally with either party having liberty to set the matter down for additional argument on or after 31 March 2011. [ 69 ] The parties must now know that the court will not tolerate either of them intentionally and mischievously deviating from the terms of an order. The spirit of the order may be open to

interpretation of the parties, but the terms are not. If a term of my order is in dispute, then the parties will have to appear before me so that I can clarify it.

n) While I will not assume the role of parenting coordinator, I will remain seized of all aspects of this matter. I am prepared to hear applications of a truly emergent nature at 9:00 or 9:30 a.m. on any day I am sitting in Victoria and available. If I am sitting elsewhere in the province and available, then I will hear such applications by telephone. [ 70 ] There has been no winner in this litigation. In other words, there has been mixed success, in my view. I will therefore make no order as to costs, meaning both parties will bear their own costs. [ 71 ] It is quite possible that neither S.B. nor Mrs.

R. will be happy with today's result. I have tried to address the issues concerning A.T., keeping in mind what I believe to be her best interest. Those conclusions have been based upon the evidence presented before me. [ 72 ] I will address Mr. Coad first. Mr. Coad, have I missed anything at this point in time? [ 73 ] MR. COAD: No, My Lord, but I was just wondering, if A.T. is currently signed up for extracurricular activities, you don't mean those? [ 74 ] THE COURT: No. [ 75 ] MR. COAD: Just -- [ 76 ] THE COURT: This is a cooling-off period. I have no idea if there is any plan to sign her up for anything more.

But if there is a plan to register her for, say, highland dancing, and I have made-up that example, then that should not happen. [ 77 ] MR. COAD: Okay, I misread that then. So what you're saying is the basketball, the baseball, that's fine, it's just no more. [ 78 ] THE COURT: It carries on. I want to maintain the status quo for the immediate time being, recognizing that it may well be changing in the not too distant future. I want there to be a genuine effort to re-establish a mother-daughter relationship between A.T. and Mrs. R.

So for the time being, so that this re-connection can be allowed to happen, there should be no new or additional activities for the child. Your client has his hand up, so I will give you time to speak with him if you like. [ 79 ] MR. COAD: Yes.

[ 80 ] MR. COAD: I understand A.T. tried out for and was granted a role in La Boheme, the musical, and so in January and February, that's something that's already in motion. [ 81 ] THE COURT: Anything that is already in motion should maintain in motion. [ 82 ] MR. COAD: Yes, thank you. [ 83 ] THE COURT: But there should -- as of today, neither side should go out and find something new for A.T. At this point in time, nothing new should be added to her plate until the early spring next year, at the earliest, when, if need be, I can reconsider the situation after A.T. has spent another three months with Mr. Emid. [ 84 ] Ms. Rodgers? [ 85 ] MS. RODGERS: My Lord, perhaps S.B. could prepare a

schedule of what is ongoing for A.T. right now? Emails with Mr. Emid have been done to "reply all"; they go to Mr. Coad, they go to Mrs. R., and to me, and to S.B. If he could do that and give us the

schedule of what activities she's in and what each activity's

schedule is, then we have a place to start if the parties want to discuss another activity or some change from the current schedule, so everybody will know what the days are that she's already committed to being places. And that will assist in the discussion of any additional time with Mrs. R., in terms of the "at least so much time" each month. If she knows that A.T.'s got -- being in an opera, you know, one month where she's going to be busy for three weekends in a row going to practices and then being in the presentations, it will allow us better -- to be better able to

schedule time when A.T. will have some opportunity to spend with her mother. [ 86 ] Mrs. R., I'm sure, would be happy to get A.T. to such activities, but it does diminish the amount of time they can spend together if all of her two weeks was spent sitting in the theatre while A.T. is busy with the -- with the opera. So if we could get a

schedule like that -- [ 87 ] MR. COAD: My client agrees to that. [ 88 ] MS. RODGERS: The other thing is the issue -- [ 89 ] THE COURT: Stand by, wait. Thank you, Mr. Coad. I think that is a good idea and I think that would be helpful if your client did that, so that is a credit to him for doing that. All right, yes. [ 90 ] MS. RODGERS: The second issue I have is the issue of the discount for the Pacific Christian School tuitions. One year there were two different discounts. There was a discount for a second child, and then there was a 30 percent discount that was given to Mrs.

R. because of her being in need and the school wrote her about that. That was included in her calculation. Would it be fair if she attributes that discount to the tuition she paid for her older daughter or how should that be shared? We've done it equally between the two girls previously. [ 91 ] THE COURT: So 15 percent went towards A.T.’s tuition -- [ 92 ] MS. RODGERS: Yes. [ 93 ] THE COURT: -- and 15 percent went towards -- [ 94 ] MS.

RODGERS: Yes, we just took her total tuition cost and deducted the -- the discount amount, yes. [ 95 ] THE COURT: But the discount -- was the discount dependent upon two children, the second child? [ 96 ] MS. RODGERS: Yes. [ 97 ] THE COURT: So the second child triggered that 30 percent discount? [ 98 ] MS. RODGERS: No, no, it was because of need. [ 99 ] THE COURT: Right. [ 100 ] MS.

RODGERS: So looking at the family, I mean, I suppose when a family has two children in the school and tight financial circumstances, it probably did go to that as well, but yeah, I'm not sure what the basis the school uses for determining when such discounts are given. [ 101 ] THE COURT: Mr. Coad, I do not recall this facet of the case. I thought the issue was the second child discount. What is -- I take it your friend is -- [ 102 ] MR. COAD: Yes, well, I -- [ 103 ] THE COURT: -- saying the 30 percent should be split.

I do not recall the 30 percent being triggered by the fact that it was a second child. [ 104 ] MR. COAD: No, I don't think it was. It seems to me 30 percent off of each of their -- [ 105 ] THE COURT: But that is not what happened. Was it 30 percent off of each tuition? [ 106 ] MS. RODGERS: No.

[ 107 ] MR. COAD: Well, it's 30 percent off -- off the total. [ 108 ] MS. RODGERS: Off the total family. [ 109 ] THE COURT: So if you just split the amount. Basically split the discount. [ 110 ] MR. COAD: That would seem fair. [ 111 ] MS. RODGERS: If you give 30 percent off the amount of Free's [phonetic] tuition and 30 percent off the amount of A.T.'s tuition, work it that way. [ 112 ] THE COURT: Yes. [ 113 ] MR. COAD: Yes. [ 114 ] MS.

RODGERS: Yes. [ 115 ] THE COURT: All right, that is -- I will -- whoever is going to be drafting up the order, that will be incorporated in the order too, under the heading of schooling. So the second-child discount goes to S.T., but they are both to share the 30 percent discount. [ 116 ] MR. COAD: And My Lord, if -- I'm sure we're going to be able to work the number out. Leave to put that number in the order? [ 117 ] THE COURT: Yes. [ 118 ] MR. COAD: Yes. [ 119 ] THE COURT: Ms. Rodgers, any sense -- [ 120 ] MS.

RODGERS: I expect that my friend and I will be able to crunch the numbers with that information, My Lord. [ 121 ] THE COURT: I think both of you are probably more aware than I am, but I am getting up to speed quite quickly, I will assure you. I appreciate the fact that you both recognize specificity in orders. It seems to benefit the parties. [ 122 ] MR. COAD: Yes. [ 123 ] THE COURT: The less room for

interpretation the better. [ 124 ] MR. COAD: Yes. [ 125 ] THE COURT: So anything -- the terms of the order, including figures, I think would be of benefit to the parties. [ 126 ] MS. RODGERS: My Lord, could we also perhaps have a date for the first weekend access scheduled, so that we will have it started and A.T. will know specifically? If we try at this late date, with Christmas being so close, to get into a negotiation, if we're going to have two weekends between now and the end of December, that is the next two weekends. [ 127 ] MR.

COAD: This weekend. [ 128 ] THE COURT: Why don't we -- I am prepared to stand down, stand by for a moment, counsel. [Discussion re: access dates.] [ 129 ] THE COURT: See if something can be worked out. If it cannot, then I will hear you. All right. We will stand down, 15 minutes please, Madam Registrar. [PROCEEDINGS ADJOURNED] [PROCEEDINGS RECONVENED] [ 130 ] THE COURT: All right, who wants to go first? [ 131 ] MR. COAD: My Lord, my client is agreeable, access the -- from the 27th at noon until the 29th at noon, and he has suggested that Mrs.

R. do both the pickup and the drop-off, and his rationale is that that is what he did when he was the weekend access parent. And I understand Mrs. R. wants to split the pickups and drop-offs. [ 132 ] MS. RODGERS: Which is what they did when they were sharing custody, so Your Lordship's concerns about the names and terms using and the roles of parents, this would share the responsibility between each of them, and acknowledge that they are equal parents, except for this temporary change with A.T. having time to adapt to and reunite into her mother's family. [ 133 ] THE COURT: Mr.

Coad, is there a logistical reason, as in a logistical difficulty, why there would not be -- [ 134 ] MR. COAD: No. [ 135 ] THE COURT: -- one or the other. Because I will tell you, if there is an articulable reason, then I would go with you, but I would likely say one weekend one parent is responsible for pickup and drop-off, and the next weekend the other parent is responsible. There -- I want to create a balance here. So if there is a particular -- if that particular weekend creates significant issue, then I hear you, but otherwise --

[ 136 ] MR. COAD: Maybe then the order could just say that they share the pickup and drop-off, and we can leave it to them to sort out who does what. [ 137 ] THE COURT: Share. There should be division -- an equal division of picking up and dropping off. [ 138 ] I hope I am not being -- and time will tell if I am wrong -- but I hope I am not being Pollyanna-ish. I would like to think that this is an opportunity -- an opportunity for a bit of a new beginning.

It may not erase the difficulties the parties have between themselves, but I have no doubt that both of them love A.T., and I can tell both parties she is a very articulate, intelligent young girl, but she is a child. [ 139 ] So I would like to think that this is an opportunity for a new beginning, and if it is not, if I am wrong, then you will be back before me. That may happen, but I would like to think that this is an opportunity for a positive result for A.T. I will tell you both, and now I am just musing from the bench, I have accepted what Mr. Emid has said, and I think what he is doing is a good idea.

There should be a gradual reintegration. I have no idea how things have gone since the last time you were before me. I would like to think that there has been slow progress. I do not want to hear it, because today is not the day to do so. But in my view a gradual, slow reintegration would be positive for A.T. It would give her the opportunity to re-establish a balance, because her balance was thrown off by Mrs. R.'s departure; and by balance, I mean her understanding of the dynamics of her two families and where she fits in with each. [ 140 ] Anyways, a sharing of pickup and drop-off. Mr.

Coad, anything further? [ 141 ] MR. COAD: No, My Lord. [ 142 ] THE COURT: Ms. Rodgers, anything further? [ 143 ] MS. RODGERS: No, My Lord, that's all. [ 144 ] THE COURT: Okay, let me say I think both of you have done a very good job for your respective clients in a difficult situation. [ 145 ] So, I will leave it at that. I wish you all a very good holiday season. “G.R.J. Gaul, J.”