S.M.M. v. J.P.H., 2013 BCSC 1759

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: S.M.M. v. J.P.H., 2013 BCSC 1759 Date: 20130823 Docket: 08-3987 Registry: Victoria Between: S.M.M. Claimant And J.P.H Respondent Before: The Honourable Madam Justice Gray Oral Reasons for Judgment In Chambers The Claimant, S.M.M.: In Person The Respondent, J.P.H.: In Person Place and Date of Trial/Hearing: Victoria, B.C. August 23, 2013 Place and Date of Judgment: Victoria, B.C. August 23, 2013 [ 1 ] THE COURT: The application before me is dealing with the

schedule of parenting time for three children. The children are a 14-year-old boy, a 12-year-old girl, and a nine-year-old boy. [ 2 ] The parents have been in court a few times. First, of great importance, was a trial before Mr. Justice Macaulay.

It was, I believe, 15 days in May and June 2011, and the reasons for judgment were released on August 9, 2011 and indexed at 2011 BCSC 1084 . [ 3 ] There was a later application before Madam Justice Ross at a hearing on November 26, 2012, and her reasons for judgment are indexed at 2012 BCSC 1825 . [ 4 ] The situation is that the mother is living in Courtenay and the children are registered in school in Courtenay. The father is an emergency physician who is living in Duncan.

He says that he would like to get some shifts in the Courtenay/Comox area or perhaps Campbell River, but in any event closer to the children's school. [ 5 ] The background of orders is important here. Mr. Justice Macaulay made an order which gave liberty to the mother to move the children to Courtenay.

At the time of the trial, the entire family was living in Duncan. [ 6 ] Paragraph 3 of the order as entered October 24, 2011, says this: [The father] shall have reasonable and generous access to the Children, including the following specified access: a. based on [the father's] present, five-day on, five-day off work schedule, during [the father's] regular days off, from after school on his first day off work, and if there is no school on that day, from 2:30 p.m., until 8:00 p.m. on the evening before the day [the father] is scheduled to return to work … Then there were some clauses that dealt primarily with holidays. [ 7 ] The order says in paragraph 5: In the event that [the mother] moves to Courtenay with the Children, [the father] will continue to have the reasonable and generous access and specified access to the Children as set out in paragraph 3 of this Order but subject to … the following conditions: a. effective December 1, 2011, [the father] shall provide to [the mother] at least 30 days' written notice of the access periods that he proposes to exercise for each four month period of every year, such four month periods to commence January 1, 2012 and continue thereafter; and

b. all pick-ups and drop-offs of the Children are to be at a location approximately mid-distance between Duncan and Courtenay, unless both parties otherwise agree in writing. [ 8 ] The mother moved to Courtenay.

The father remarried, but he is now separated from his new wife. [ 9 ] There was some dispute before me about what the actual access has been to the children, but it has been agreed that during the two summers, that is, of 2012 and 2013, the children have spent roughly equal time with their parents, and it is also agreed that at least since November or December of 2012, the father has seen the children on approximately alternate weekends. [ 10 ] In the proceeding before Madam Justice Ross, both parents sought an order for the father to have the children on alternate weekends.

The father has said today that he and his second wife were hoping that things would settle down with that access schedule, and that is why he agreed with that. [ 11 ] So we are in this unusual circumstance that the father, under Justice Macaulay's order, was entitled to basically four days of time with the children for every five days that he was off work, but in fact, for about the last eight months or more the access has been alternate weekends. [ 12 ] In Madam Justice Ross's reasons for judgment, she gave a very specific schedule, and then at paragraph 34, she said: Following the expiration of the access times determined in these reasons, Clause 5(

a) of the Order continues to be in effect. Accordingly, commencing August 1 … [the father] will provide [the mother] with written notice of the access periods he intends to have the children during the next four month period. Thereafter he will provide [the mother] with seven days notice in writing if he does not intend to exercise his access on a day or days he has designated. [ 13 ] I am going to make my reasons for judgment brief because of the time pressure.

I am giving oral reasons, and as with the usual practice with oral reasons, if they are reduced to writing, I may be required to edit them, but that editing will be for clarity, not to change the result. [ 14 ] The mother says that since the

schedule changed to alternate weekends of parenting time by the father, the children have settled down. She refers in particular to the report card of the youngest child, J., which said that he had shown a lot of personal growth this year, is more and more able to control his feelings, and is beginning to build relationships with his peers. The mother attributes that to the stability of essentially sleeping in the same bed on school nights. [ 15 ] The father does not agree with that reason for Jasper's improvement. The father says that J. has simply matured. [ 16 ] So right now the mother proposes a

schedule which would have the children staying with her on school nights, effectively, and then alternate weekends with their father. [ 17 ] The father has proposed a

schedule which appears to be that the children would be with him when he is not working on five-day shifts. He has given a handwritten

schedule and it sets out 14 nights in September, 13 in October, and 14 in November. The

schedule does not add up the number of nights for December, but it appears to be closer to what was set out in Justice Macaulay's order. I assume this would be subject to change, if in fact the father found that he was able to find shifts in the Comox/Courtenay area and was providing a home there. [ 18 ] The mother has a concern about the children being able to attend their activities and have stability in their home life when they go to school.

The children are active and apparently talented in piano and soccer, and the father agrees that these are important activities for the children and he supports them attending those activities. [ 19 ] The father provided a videotape which appears to be the oldest boy talking about the parenting arrangements. The mother agrees that the children want to spend more time with their father, but she has these other concerns about their stability and wants them to be able to continue to succeed in school and other activities.

She says that it was difficult for them when they were essentially living out of a hotel or staying at a bed and breakfast with their father. [ 20 ] The father says that there are opportunities to obtain accommodation in Courtenay which may be comfortable for the children and could include bedrooms for them. He says he could rent a piano to ensure that the children would be able to practice the piano when they are with him. [ 21 ] What I have determined is that what is in the best interests of these children is if they can have a

schedule that gives them the stability of a home, stability on nights before they go to school, access to a piano to practice, but also enables them to see their father a significant amount time. [ 22 ] I have considered s. 37 of the Family Law Act , S.B.C. 2011, c. 25, which talks about what is in the best interests of the child and the various factors to be considered. [ 23 ] So here are the terms: The children must be in Courtenay for all nights before a school day.

If the father has accommodation for the children in Courtenay that provides a bedroom for the boys and a different bedroom for the daughter, and yet another bedroom for the father, and also has a piano available, then the children can stay overnight with their father in Courtenay at that location.

If the father does not have that kind of accommodation available in Courtenay, then, for the time periods when the children are in school, the father is to return the children to the mother's home by eight o'clock at night and he can pick them up after school. [ 24 ] The father is to take the children to piano lessons and to soccer practices and games, except if the children are ill. [ 25 ] The mother has asked that the exchange time in Nanaimo be changed to 6:30 pm. I see that this was considered by Madam Justice Ross and she said in paragraph 27 of her reasons that it should remain at 6:00 p.m.

I do not see a basis upon which I can change

Madam Justice Ross’ order, so that exchange time would remain 6:00 p.m. [ 26 ] With those provisions, I accept the father's schedule. A copy of the dates in that

schedule is attached as Appendix A. [ 27 ] So, for example, September 4 is a school day and the father can collect the children after school, and if he has accommodation for them as I have outlined, the children can stay with him in Courtenay overnight, and they can leave Courtenay on the Friday night and then they must be returned to their mother in Courtenay at 8 pm on the 8th or 6 pm in Nanaimo on the 8th. If the father does not have such accommodation, then the father can have the children in Courtenay from after school until eight o'clock on the school days. [ 28 ] The nature of this

schedule is that the children will have significant contact with their father in Courtenay on their school days, and that would include overnight if the father can arrange the appropriate accommodation. The father will be free to take the children to Duncan or, as he proposes, to Whistler or Tofino, if it is not interfering with school, and on school nights the children will have the stability of staying either in their mother's home or in a home that their father can arrange that meets these requirements that I have set out. [ 29 ] So is that clear? S. M. is that clear? [ 30 ] S.

M.: How do we know for sure whether he has this accommodation? Who will say that he's got the right accommodation with what they need? [ 31 ] THE COURT: I have made the order on these terms, and I expect people to comply with court orders. If they are not in compliance, they may be in contempt. I expect the father to honour the order and only have the children overnight on school nights if he has obtained accommodation as I have described.

If it turns out that the accommodation does not meet those standards, then there may be proceedings for contempt. [ 32 ] There is no court monitor who goes and checks out homes for suitability. The accommodation must comply with the order. [DISCUSSION] [ 33 ] S. M.: So this means that he wouldn't be able to take the children out of school to go on a trip to Whistler and he wouldn't be able to take them to go out to the cabin when it interferes with school? [ 34 ] THE COURT: That is right, unless with the written consent of the mother. [ 35 ] S.

M.: Is the return time for Nanaimo or Courtenay? [ 36 ] THE COURT: It will be 8:00 p.m., if it is a period that the father has the children in Courtenay. If the children are not in Courtenay that day, the return time will be 6:00 pm in Nanaimo. [ 37 ] S. M.: Okay. [ 38 ] THE COURT: My assumption was also that the children would then be able to practice piano either before school or after eight o'clock in the evening. [DISCUSSION] [ 39 ] The return time is either eight o'clock in Courtenay or six o'clock at the exchange point. [DISCUSSION] [ 40 ] Do you have any questions? [ 41 ] J. H.: I did, just two.

In the end of September, I have a conference in Whistler and I was going to take the children there. The conference starts on the Thursday night, so I was proposing to take them out of school for the Friday, so that we could actually get to Whistler and be at the conference. And then the other time was in November where the Thursday was a parent-teacher day, and then they had school again on Friday, and I proposed taking them out on the Friday, so that we would have a long weekend in that time.

So there's two times before Christmas that was -- two days that I was -- I was wondering if that would be acceptable to … [FURTHER DISCUSSION] [ 42 ] THE COURT: I have been asked to deal with two further points by the father. The father wants to be able to take the children out of school on a Friday in September, so that they can go with him to a conference in Whistler. The mother is concerned about the children being taken out of school too frequently.

The children are high achievers academically, and in my view it would be acceptable to take the children out of school for that September Friday to enable them to go with their father to the conference in Whistler. [ 43 ] The father proposes, as well, to take the children out of school on a Friday in November, saying that it is the day after a Thursday, a day that the children do not have classes.

The mother thinks the children may be expected to participate at school in some way on that Thursday, and again she objects on the basis of the children missing too much school. [ 44 ] I am not prepared to order that the father may remove the children from school on the Friday and potentially the Thursday too in November. I do not think the children should be taken out of school regularly, and I am concerned that they may be expected to be involved in some activities on the Thursday. So I will not agree that the children can go out of school on those two November days. [ 45 ] I had said earlier that this

schedule provided that the children would attend school as scheduled, and so the one exception will be to enable them to attend the conference in Whistler in the end of September.

[ 46 ] Is that clear? Anything else? [ 47 ] S. M.: Just one more question. What if he writes something and says he wants them six or seven days out of 10? Is that just de facto , the way it is?

Because the way it's written now, he just simply has to tell me when he's coming and that's that, and there's no -- there's no other provision for the maximum amount of days or -- or anything. [ 48 ] THE COURT: The guiding principle is Justice Macaulay's order where the father was to parent for four days out of 10-day periods. [ 49 ] I will seize myself of this case, which means that further applications should come before me, except in the case of emergency. I allow for another judge or master to hear applications in case of emergency because it may be difficult to

schedule hearings before me, particularly as I am a Vancouver-based judge, not a Victoria-based judge. I will be seized if the parties cannot resolve an issue. I expect there might be some further developments between now and the end of December, in terms of the father's work situation and accommodation. [ 50 ] If the father has suitable accommodation in Courtenay and work such that he can spend time with the children in Courtenay, he could have the children approximately 40 percent of the time. “Gray J.” Appendix “A”:

Schedule Proposed by J.P.H., father Sept. - 14 Nights Wednesday 4th to Sunday 8th Friday 13th to Wednesday 18th Tuesday 24th to Sunday 29th Oct. - 13 Nights Friday 4th to Tuesday 8th Friday 11th to Wednesday 18th Thursday 24th to Monday 28th Nov. - 14 Nights Friday 1st to Thursday 7th Wednesday 13th to Sunday 17th Thursday 21st to Monday 25th Dec. Tuesday 3rd to Saturday 7th Friday 13th to Tuesday 17th Wednesday 25th to Friday 31st Jan. Wednesday 1st to Saturday 4th