M.R.M. v. K.I. Date:, 2014 BCPC 391

Citation: M.R.M. v. K.I. Date: 20140107 2014 BCPC 0391 File No: 08-3606 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: MRM APPLICANT AND: KI RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. L. BAYLIFF Counsel for the Applicant: J. Trycznski Counsel for the Respondent: D. Komori Place of Hearing: Williams Lake , B.C.

Date of Hearing: August 12, 13, 14, October 3, 16, 2013 Date of Judgment: January 7, 2014 [ 1 ] The following are my final Reasons for Judgment in this matter which was before me for trial on August 12 th , 13 th , 14 th and October 3 rd and 16 th , 2013. These reasons follow on, and are supplementary to, my Interim Ruling and Order made October 18 th and filed on October 21 st . 1. Relocation 1.1 Does Division 6 of the Family Law Act apply? [ 2 ] Mr.

Trycznski, on behalf of MRM, argues that Division 6 of the new Family Law Act, S.B.C.2011, c. 25 dealing with “Relocation” does not apply to this case because there is already an Order in place dealing with location or relocation. The provision he is referring to is found in Judge Walters’ Order made on July 27 th , 2011 following the first trial and it reads as follows: “2(

d) The mother, KI, shall not change the location of the child S’s primary residence from the City of Williams Lake and its environs without first obtaining the permission of the Court.” [ 3 ] Mr. Trycznski argues that Judge Walters has already ruled on the issue of relocation and that KI is in the position of any litigant who seeks to change an existing family court order: the onus is on her to first, establish a change in circumstances and second, to establish that the proposed change is in the child’s best interests.

Thus, he argues, the onus is on KI throughout, and the test is one of “best interests” only. [ 4 ] This is an interesting and ingenious argument. However, I have concluded that I cannot give effect to it. [ 5 ] First of all, I do not think the Legislature intended to permit a respondent parent to do an ‘end run’ around Division 6 of the new Act in this way, even in cases where there has been an earlier Order that touched on the issue of the location or relocation of the child’s residence. The Family Law Act is comprehensive legislation that is intended to operate as a code.

It collects, codifies and, in some instances, alters the great body of common law dealing with family issues. The relocation provisions in Division 6 are a clear example of this. It would be inconsistent with the obviously comprehensive nature of the Act to say that it does not apply in cases where there is a previous Order. [ 6 ] Second, the

interpretation urged by counsel for MRM is inconsistent with the plain words of ss. 69(6)(

d) which expressly require the court to consider “…any restrictions on relocation contained in a written agreement or an order” before making a decision about the `good faith` of an application to relocate.

Although s. 69 does not apply to a parent, such as MRM, who is a contact parent but not a guardian, I still think the reference to previous orders in s. 69(6) is an indicator that the legislature intended that the existence of a previous order restricting relocation is a factor for the court to consider under Division 6, but not a reason to take the case outside the scope of Division 6. 1.2 Application of Division 6 to the Facts [ 7 ] Turning then to the application of Division 6 to the facts of this case, the analysis must begin by identifying the legal status of each of S’s parents. [ 8 ] KI is the sole guardian of S.

MRM, though her biological father, is not a guardian. He is a contact parent. The legal status of each flows from the application of the transition provisions in s. 251(1) (b)of the Family Law Act to the order of Judge Walters made on July 27 th , 2011 where KI was granted sole custody and sole guardianship and MRM was granted access. [ 9 ] It would appear that MRM, as a contact parent, rather than a guardian, does not have standing under Division 6 to oppose KI’s application to relocate. It would appear that his rights are limited to those set out in s. 67(2)(b).

He can seek a further order concerning contact with the child or seek to change, suspend or terminate an order respecting contact “for the purpose of maintaining the relationship between the child…if relocation occurs.” But, it would appear there is no mechanism in the new legislation by which he can oppose the proposed relocation on the basis that it is not in the best interests of his daughter.

In this regard, the legislation marks a dramatic change from the common law that preceded it. [ 10 ] It is certainly possible to envisage cases where this apparent bar against considering the child’s best interests in situations where the relocating parent is the sole guardian would pose a significant dilemma for the court. However, this is not one of those cases.

As I said in my interim ruling, the close relationship (both financial and emotional) between KI and her family, plus the fact that MRM has been either unable (his view), or unwilling (KI’s view), to contribute much to the support of S over the past few years would lead me to the conclusion that the proposed relocation is in her best interests. However, as noted, I do not believe this is a decision I need make given the wording of Division 6.

[ 11 ] In

summary, I conclude that KI is at liberty to relocate with S to Kelowna. I will turn now to a new order concerning contact between MRM and S in light of this new reality. 2. MRM’s Contact With S [ 12 ] The nature and extent of MRM’s contact with his daughter has been the focus of much litigation both during the first trial before Judge Walters (2009 to 2011) and the second trial before me (2013). At the time of the first trial the issue was whether his contact should be supervised or unsupervised. Over the objections of KI and her family, Judge Walters concluded that his contact should be unsupervised.

However, Judge Walters did not permit MRM to have overnight contact with S. [ 13 ] During the trial before me KI conceded that some overnight contact should start to occur but the couple still differed on how long the visits should be with MRM seeking lengthier visits and KI insisting that shorter visits were in S’s best interests. On August 14 th , part way through the second trial, I made an interim order allowing MRM overnight contact with S every second weekend from 9:30 am on Saturday to 5 pm on Sunday.

This was in addition to the two days a week from 8 am to 5 pm plus certain holiday and special day contact set out in Judge Walters’ order. [ 14 ] The reasons why the I family have always been very cautious about agreeing to contact between MRM and S are that MRM has a history of criminality, violence and drug dealing. His criminal record is for offences of violence dating from the early 1990’s in Nova Scotia, where he was born and raised. He would have been in his mid to late 20’s at the time.

More recently, in the 2000’s, when he was in his late 30’s and early 40’s he had numerous encounters with police mostly to do with his relationships with women. Three different women (Ms. H, Ms. F and S’s mother, KI) have complained to police that MRM has threatened violence towards them, stalked them, actually assaulted them and breached ‘no contact’ terms put in place to protect them. The evidence at the first trial also established that MRM had been accused by several different men of uttering threats of violence.

The general picture that emerges - and I find that this is established on the evidence heard at the first trial - is that MRM has a history of engaging in threatening and intimidating behavior, or actual violence, against people who anger him, disappoint him, hurt him, disagree with him or prevent him getting what he thinks he wants at any given point in time. [ 15 ] As well, MRM was involved in the drug trade at least up until the death of his brother in 2007. These facts are established to my satisfaction by the evidence of Cpl.

Hacker, as he then was, and by KI, during the first trial. [ 16 ] On the positive side, there is no direct evidence that MRM, who is now 48 years old, has continued his active involvement in the drug trade or in threatening violent activity in recent years. Cpl.

Hacker said the following when he testified on May 6 th , 2010 (p. 51, ll. 2-7): “Over the last three or four years, since the death of MRM’s older brother R, [in 2007] MRM’s participation in the drug activity has diminished substantially and to the present date, not -- I would say that his involvement is minimal at best.” [ 17 ] Against this there is the evidence of Barry McCleary, a security guard, who testified at the second trial before me. Mr. McCleary suspected that MRM was at a local apartment complex in the spring of 2012 for the purpose of dealing drugs. MRM denied that he was there for that purpose.

There is suspicion here, but I cannot find that it has been established on a balance of probabilities that MRM continues to be involved in drug trafficking. [ 18 ] Similarly, to the extent that MRM has been involved in domestic relationships since the birth of S, there is no evidence of problems in those relationships. [ 19 ] Also on the positive side, GM, a long-time resident of the area, a parent of daughters herself and an experienced foster parent of special needs children, testified in both trials in support of MRM.

She is a friend of MRM, but I still found her evidence worthy of considerable weight because of her age and life experience. I am convinced that if she knew of ongoing criminality on the part of MRM she would tell the truth about what she knew. Likewise, I am convinced that if she believed MRM posed a danger to S in any way she would speak up about it. [ 20 ] Despite MRM’s history and the suspicion that continues to hover over him - particularly as it concerns his finances - the evidence does establish quite clearly that MRM is very deeply committed to being the best father possible to his daughter S.

He is justly proud of the fact that he has never missed one access visit with her over the 5 years since he was first granted access by the court. The length of time that has gone by, the fact that he has never missed a visit, plus his statements in court about his commitment satisfy me that he is being completely truthful and transparent on this point even if he may have been less so on other points. [ 21 ] Furthermore, the evidence satisfies me that MRM is a positive influence in S’s life.

The evidence indicates that S is very attached to her father and that he interacts with her in a way that promotes her development intellectually, physically, emotionally and morally. I am satisfied that MRM understands - perhaps better than most - the dangers of exposing S to violence, threats, drug use, drug dealing, alcohol abuse and promiscuity. As I said in my interim ruling, I am satisfied that he will take all reasonable steps to protect her from these things as well as from other risks such as any risk that may be posed by his Rottweiler dogs.

I am also satisfied that he is capable of choosing an appropriate caregiver for S without input from KI. On the evidence I have heard I am satisfied that it is no longer necessary to impose conditions on MRM’s contact to address these various concerns. [ 22 ] My order concerning contact must take into account two alternatives - first, that MRM will decide to relocate to the Kelowna area in order to continue to be near S. The second alternative is that he will not move to Kelowna but will remain in Williams Lake or relocate to some other community that is a considerable distance from where S will be living.

By a “considerable distance” I mean anything in excess of 100 km from S’s location. I have chosen this figure because it equates to about 1 hour of driving (one way). In my

view, the negative effect on S of spending so much of her time in a car clearly outweighs the positive effect of frequent contact with her father if she has to spend any more than 1 hour travelling to or from a visit. My preference, frankly, for the sake of S as well as both her parents, would be that MRM relocate to a place that is much closer than 100 km from where S will be living, in order to cut down as much as possible on the amount of time she spends in a car.

However, I have set the limit at 100 km in recognition of the fact that it may be very difficult for MRM to find affordable housing in the Okanagan and I am hoping that a 100 km radius rather than something less will broaden the communities he can chose from if he does decide to relocate. 2.1 Contact If MRM Relocates to the Kelowna area [ 23 ] On behalf of KI, Mr. Komori argues that MRM’s contact should be on alternating weekends from Saturday morning to Sunday afternoon as set out in the August, 2013 interim order plus two week nights from after school to 7 pm.

As for holidays it is proposed that they alternate Christmases and that he have 4 days during Spring Break and 4 days in each of the months of July and August. [ 24 ] On behalf of MRM, Mr. Trycznski argues that there should be a greater amount of contact - alternating weekends but the weekend should start after school on Friday until Monday morning when S goes to school, plus two overnights during each week from after school to the start of school the next day.

For holidays, MRM’s proposal is to divide Christmas and Spring Break equally (alternating Christmas Day itself from year to year), and share in the care of S on a one week/one week alternating

schedule during July and August. [ 25 ] Both counsel argue that the history of S’s care (see s. 37(2)(d)) supports their position. Mr. Komori says that MRM’s contact with S has been less than what might be termed “usual” and the court should keep it that way or at least expand contact very slowly over time. Mr. Trycznski says that MRM has had very frequent and regular contact with S, even if that contact has been fairly brief due to the constraints of the various court orders. He cites child development expert Michael E.

Lamb for the proposition that frequent contact with both parents is considered beneficial for children. He argues that that a moderate increase in the length of the weekend and holiday contact with her father will benefit S. [ 26 ] I am generally persuaded by MRM’s position on the issue of contact. There is simply no evidence to suggest that frequent and generous contact with her father would not be beneficial to S. That being said, I have concluded that MRM’s contact should not exceed approximately 40% of the year.

This is an appropriate upper limit given that KI is the sole guardian of S and has full parental responsibilities for her and given the history of animosity between the I family and MRM. [ 27 ] At p. 3 of my interim ruling I set out my three goals for the contact order. For ease of reference I will repeat them here. First, S should have contact with each of her parents frequently, with the goal that no more than 5 days should go by (in the regular schedule) without her having contact with the other parent.

Second, as noted, MRM’s contact should be up to 40% of the time, but not greater than that when examined over a year. Third, S should have the opportunity to share her day to day life with both of her parents. Put another way, I find that it is not in S’s best interests that her father be only a “weekend” or “holiday” father if her parents are living close enough to each other to make more frequent and more normal contact possible. [ 28 ] Before specifying the contact order I do wish to emphasize that KI and MRM are always at liberty to agree to some different

schedule than the one I will set out in my Order. I have included the words “Unless Otherwise Agreed” in all relevant headings in the Order to remind the parties of this. Of course, given their history of animosity, any such communication should be by e mail (or text) rather than in person. [ 29 ] The regular

schedule of contact for weekends and weekdays during the school year (other than school holidays) is set out in my interim order of October 18 th , 2013 (filed November 20 th ) but I will briefly review it here for ease of reference. The Father will have every second weekend from after school on Friday (or Thursday if Friday is a non-instructional day) to the start of school on Monday (or Tuesday if Monday is a non-instructional day). The Father will also have every Thursday evening overnight. If the weekend following is the Father’s weekend then his contact will extend right through Friday and through the weekend until Monday at the start of school. As a final addition to the regular

schedule I have specified that on the Tuesday following the mother’s weekend (every second Tuesday) S will have contact with her father from after school until 7 pm. [ 30 ] According to this

schedule S will spend between 10 and 12 overnights per month with her father, plus an additional 8 to 12 hours per month on the alternating Tuesday visits. Also, the

schedule will allow MRM some opportunities to take S to school and participate in her schooling, something he has shown an interest in doing. [ 31 ] Moving now to MRM’s contact with S on Christmas, Spring and Fall Break (if any). I have divided these holidays equally between the parents. [ 32 ] During the long Summer Break I have specified that for the next two years, until S turns 8, each parent shall be entitled to an uninterrupted period of 7 days with the Child in each of the months of July and August. After S turns 8, this will increase to 14 days in each month. The regular

schedule (alternating weekends, Thursday overnight and every second Tuesday evening) will apply at all other times during the Summer Break. [ 33 ] As for S’s birthday, the birthday of each of her parents, Mother’s Day and Father’s Day (I have termed these “special days” in the Order), I have more or less adopted the provisions of Judge Walters’ Order on these points. I have added a term requiring the parent seeking contact/parenting time on the special day to handle the transportation of S. [ 34 ] During his testimony MRM expressed the desire to take S on a trip back east to visit his parents in Nova Scotia.

KI is opposed to this on the basis that S is too young to be away from her for the length of time necessary to make such a visit and probably also because she does not know MRM’s family and is afraid for S’s safety. In my view it is in S’s best interests to know both sides of her family. I am also satisfied that MRM is capable of keeping S safe. Therefore, I would be inclined to permit such a visit providing it did not exceed 10 days to 2 weeks. I note that in the spring of 2013 KI sought and was granted the court’s permission to take S on a visit to

Mexico. Travel of this sort is also very much in S’s best interests even though it required S to be away from her other parent for a somewhat longer stretch of time than normal. [ 35 ] I contemplated including a sub-section in

section 4 of the Order to cover such special, out of town trips but, given the difficulty of phrasing a term that would cover all eventualities, I decided that this issue was better handled by a statement of principles or factors to consider which, while not part of the order, will, I hope, assist KI and MRM to come to an agreement about such matters without the need of coming to court in the future. The factors to consider if either parent wishes to take S on a special, out of town trip include the following:

(1) Based on the evidence I have heard I would be inclined to permit either parent to take a special, out of town trip with S during one of the school breaks or even during the school year. Such trip could be to meet family in the case of the proposed trip to Nova Scotia, or for family recreation, life experience and education in the case of the trip to Mexico - or for any other reason likely to be of benefit to S;

(2) Bearing in mind the goal of S having frequent contact with both her parents given her relatively young age, such trip should not be very long - 10 days to 2 weeks at the most;

(3) When proposing such a trip a parent should provide plenty of notice - 3 months or more - to the other parent, along with the general destination, proposed manner of travel and approximate itinerary;

(4) Both parents should consider all relevant issues, including the value to S of the proposed trip, S’s schedule, the reasoning of the other parent if he or she is opposed to the trip, whether changes could be made to the proposed trip to address the concerns of the other parent, and make up time for the other parent;

(5) The parents should reach a decision - either the proposed trip is agreed to or it is not - in a timely manner (I suggest 2 weeks from when the request is first posed, in writing to the other parent) so that if an agreement cannot be reached the parent seeking to take S on a trip can promptly bring an application in court for a resolution of the issue;

(6) If an agreement is reached, then the parent taking S on the trip must provide a detailed itinerary to the other parent as soon as the details have been arranged and, in any case, not later than the date of departure. [ 36 ] This concludes my reasons as it concerns contact in the event that MRM relocates to within 100 km of S’s residence. 2.2 Contact If MRM Does Not Relocate [ 37 ] As I said earlier, if MRM remains in Williams Lake (or moves to a community more than 100 km from where S will be living) the main concern is the amount of travel S will be required to endure in order to have contact with her father.

Kelowna and Williams Lake are approximately 6 hours apart by road. This means that every time S has contact with her father she will have to spend 12 hours (round trip) strapped into a car seat. Although I have concluded that frequent contact with her father is in S’s best interests, it ceases to be so if such contact requires too much travel. In my view it would have a negative effect on S’s emotional and physical wellbeing to require a journey of this length any more than once per month.

Accordingly, it will be a term of my Order that if MRM does not relocate to within a 100 km radius of S’s new home his contact with S will be reduced to one, three day weekend per month. As discussed during submissions it should be possible most months to make use of either a statutory holiday or a “pro D” day so that S does not have to miss a day of school.

However, if there are no ‘non-instructional’ days adjacent to a weekend then S will have to miss a day of school in order to be able to have a 3 day visit with her father. [ 38 ] In the event that MRM remains in Williams Lake (or moves to a place that is more than 100 km distant from where S will be living) the parents shall share in the transportation of S by each driving approximately ½ way and meeting at some mutually agreed location.

Cache Creek was discussed during submissions. [ 39 ] This concludes my reasons as it concerns contact if MRM does not relocate to within 100 km of S’s location in Kelowna. 3.0 Child Support [ 40 ] The issues with respect to child support are: 1. Whether arrears that have accumulated since the July 27 th , 2011 order should be reduced or cancelled; and

2. Determination of MRM’s current and likely future income and a fair amount for child support going forward. 3.1 Should Arrears Be Reduced or Cancelled [ 41 ] In his July 27 th , 2011 order, following the first trial, Judge Walters imputed to MRM an income of $35,000 and ordered that he pay the Guideline amount (as it then was) of $326 per month for the support of S.

MRM made payments in this amount for a few months in 2011 but then more or less ceased paying support for a year and a half until early in 2013 when he started paying again, although usually in an amount of less than the ordered $326/month. [ 42 ] MRM’s evidence was that, due to a back injury, he was unable to work for all of 2011 and 2012 and this is why he did not pay child support. In the spring of 2011 he applied for social assistance and was approved. He was in receipt of social assistance for 2011 and 2012.

He testified in detail about the various medical procedures he underwent over that two year period to try to heal his back injury or at least reduce the chronic pain it was causing him. He testified that he was under the care of Dr. E, a family doctor in Williams Lake, and was also referred to several specialists. He said that finally, in the fall of 2012, he underwent a procedure in Kelowna that has afforded him some relief. In the spring of 2013 he said that he felt well enough to resume working and he got a part time job at [omitted for publishing] in Williams Lake.

At the time of the trial in August and October of 2013, MRM was still employed with [omitted for publishing] on a part time basis and he had resumed making payments towards S’s support although, as I say, generally at less than the $326/month required by Judge Walters’ Order. It appears also that his payments were not voluntary but rather were the product of attachment proceedings by the Family Maintenance Enforcement Program. [ 43 ] Arrears of approximately $5,500.00 have accumulated pursuant to the July, 2011 Order.

MRM seeks to reduce or cancel those arrears on the basis that his medical condition has made it impossible for him to earn an income in the range of the $35,000 imputed to him following the first trial. [ 44 ] Although MRM testified in detail about his medical condition, he produced no medical evidence in support. Mr. Komori argues that his evidence should be given no credence for this and many other reasons. He points to BM’s observations of MRM running beside and vigorously riding a bicycle in September, 2011 apparently unhampered by his back injury.

He points to the fact that MRM is an intelligent, presentable, well-spoken man with a multitude of talents including experience in communications with the Canadian military, extensive construction experience, experience in sales and property management as well as mechanical skills. He argues that even if MRM could not do certain types of work because of his back condition there were many other options available to him by virtue of his skills and experience.

He argues that MRM’s evidence at both trials, particularly on cross examination, is simply not credible and that the court should believe little or nothing of what MRM says about his financial situation. He argues that the fact MRM was able to convince the Ministry of Social Development for two years that he was unable to work is not a reason for the court to make a similar finding.

He argues that the evidence shows that on at least one occasion MRM failed to show up for a job interview and that the court should infer from this and the other evidence that MRM was cynically manipulating the Social Assistance agency by pretending to look for work but not actually following through. [ 45 ] As well, there is the issue of illegal, undeclared income from the drug trade or other sources. Mr.

Komori points to the fact that MRM is always well dressed, manages to feed and care for two Rottweiler dogs, keep a vehicle on the road, furnish his daughter’s room in a tasteful way and give her plenty of gifts. Mr. Komori argues that these are not the hallmarks of a person living on welfare and therefore the court should infer that MRM has some significant amount of undeclared, probably illegal, income. [ 46 ] All in all, Mr.

Komori argues, there is sufficient evidence to support a finding that MRM has been deliberately under employed since the July, 2011 order and that whatever he does declare as income is considerably less than what he actually earns. Mr. Komori urges the court to refuse to reduce or cancel arrears of child support that have accumulated over the past 2 years, to impute an income to MRM in the $35,000 range going forward, and to continue to require him to pay the Guideline amount of $326 (now $318) per month for the support of S. [ 47 ] Although I acknowledge the force of Mr.

Komori’s submissions on the child support issue, I have decided that I must grant MRM most of what he seeks regarding child support. I have decided to cancel arrears that accumulated in 2011 and 2012 on the basis of MRM’s evidence about the chronic pain he was suffering during this time. For the year 2013 I have decided to impute to MRM an income of $21,000 based on his projected total earnings from [omitted for publishing] (see Exhibit 2 .).

For the year 2014 I will impute to him an income of $25,000, and for the years 2015 and following, I will impute to him an income of $35,000 with child support payable during each time period according to the B.C. table of the Federal Child Support Guidelines. [ 48 ] My decision concerning the years 2011 and 2012 would have been much easier had MRM provided medical evidence to support what he said about his back injury and chronic pain.

However, even without such evidence I find that he has established on a balance of probabilities that he truly did feel pain and, as a result, was unable to work on a regular basis. In reaching this conclusion I bear in mind that MRM did raise the issue of pain in his back at the end of the first trial in October, 2010. He was not permitted to file a document from a specialist at that time due to a failure to give adequate notice to KI. I also bear in mind that MRM brought on his application to reduce child support in a timely manner (October 16 th , 2011). Further, as Mr.

Trycznski urged in his submissions, the “excruciating detail” given by MRM about the painful procedures he underwent seeking a cure for his back condition do carry some weight with me. I think it unlikely that he would be able to give this amount of detail if he had not undergone the procedures, or that he would submit to such procedures if he was not truly in pain.

The fact that the Ministry of Social Development felt MRM was sufficiently disabled to receive welfare over that 2 year period is also a factor in my decision that MRM has met the burden of proof on him of establishing that he was unable to work due to chronic pain during this time period. There is the evidence of GM that MRM was not able to physically assist her when she moved house (though he was active in organizing others to assist her). This too carries some weight in support of MRM’s assertions concerning his inability to work during that 2 year period.

Finally, I bear in mind that, despite his many skills, MRM does have certain significant barriers to employment - namely, his criminal record and his personality. His history indicates

that he has a tendency to anger easily and to defy authority. He also has a history of complaining of work place injuries which likely also makes it difficult for him to get good references and find employment. I conclude that the evidence as a whole, plus the inferences I draw from that evidence, are sufficient to just push MRM’s case over the threshold of proof on a balance of probabilities on this issue. [ 49 ] In my view, considering the factors set out in s. 174 of the Family Law Act , it would be grossly unfair not to cancel the arrears of child support that accumulated during the years 2011 and 2012.

I therefore cancel the arrears that accumulated during those two years, as well as interest that accrued on those arrears. [ 50 ] As it concerns the year 2013, based on his earnings from [omitted for publishing] as of October, 2013, it was projected that MRM would have a total income of about $21,000 this year. It is argued that MRM could have earned much more than this had he not spent so much time over at the [omitted for publishing] School with S on his contact days and at lunch hours on other days.

It is argued that he was deliberately under employed because of his single minded determination to spend every moment legally allowed to him with his daughter. Mr. Komori argues that the law does not permit under employment so that the parent can spend time with the child unless the child has special needs (S has no special needs). [ 51 ] In my view, the evidence does not establish that MRM has been underemployed in 2013.

First of all, I accept his evidence that he began to reenter the work force in a gradual manner in 2013 after he experienced some relief from pain as a result of the procedure done in Kelowna in November, 2012. Secondly, MRM testified that he made himself available for work on an “on call” basis on evenings and weekends when he did not have S.

As MRM did not have a great deal of contact with S pursuant to the July, 2011 Order or even pursuant to my interim order made in August of this year, this meant that he was making himself available for work the majority of the time. [ 52 ] I therefore conclude that a fair and proper income to impute to MRM for 2013 is $21,000 which equates to a monthly support payment of $182.00. [ 53 ] Using these figures, the total payable in 2013 was $2,184.00. The FMEP account statement filed at trial ( Exhibit 3) is current to August 9 th . As of that date MRM had paid a total of $1,313.90 in 2013.

I do not have any evidence about what he has paid between then and the end of 2013 so I cannot determine whether he has paid less, or more, than the $2,184 required. If the FMEP account statement shows that he has paid less, then he owes arrears in the amount calculated by subtracting what he has paid from the $2,184.00 owed.

If MRM has paid more than this sum in 2013, it is not appropriate in the circumstances of this case that he should receive any sort of reimbursement or credit against his future child support obligations. [ 54 ] For the year 2014 I have decided to impute to MRM the slightly higher figure of $25,000 which equates to a monthly support payment of $213.00. I have chosen an income of $25,000 rather than the higher figure of $35,000 argued for by Mr. Komori because, given KI’s decision to relocate with S to Kelowna, 2014 is going to be a year of transition for all concerned.

MRM is going to have to decide whether he follows S to the Kelowna area or whether he stays here. If he follows S he will likely be facing a period of unemployment until he can find new employment in the Okanagan. This will result in a lower income. If he decides to remain here in Williams Lake he will have to adapt financially to the expense of driving to Cache Creek and back twice on the one weekend each month when he has contact with S as well as additional trips at the school breaks.

While access costs may not be a reason to reduce MRM’s child support obligations over the long term since it will only be one weekend a month, I think it appropriate to give some consideration to this during 2014 because it is a transitional year. [ 55 ] For the year 2015 and beyond, I have decided to impute to MRM an income of $35,000 which equates to a monthly payment of $318 per month. Judge Walters settled on the figure of $35,000 in his July, 2011 Order. In my view it will be appropriate to return to this figure by 2015 because, by then, the lives of all concerned will likely have stabilized somewhat.

MRM will have had a chance to adapt to S’s relocation and, if he also relocates, he will have had a chance to find new employment and a new residence. [ 56 ] There is certainly no specific evidence in either the first or the second trial to precisely justify the choice of $35,000 as the total income of MRM, and it is true that for many years MRM has declared an income of less than half that. However, as I said earlier, MRM is intelligent, experienced and skilled. When he wants to, he is capable of speaking and presenting himself well. He is also extremely determined when he puts his mind to something.

I find myself in agreement with Mr. Komori that MRM ought to have no difficulty earning at least $35,000 per year (which equates to an hourly wage of about $17 per hour for full time work). I hope that instead of seeing the payment of child support as an unfair burden to be avoided at all costs, MRM will see it for what it is - as a matter of honour, to be the one to support his daughter rather than leaving it to others to do.

In due course, as S grows older, I hope that he will offer to pay for some of her extra-curricular activities and other special expenses but I am not making this part of my order because of the history of animosity between these parties. [ 57 ] In

summary, I cancel arrears that accumulated in 2011 and 2012. For the year 2013 I impute to MRM an income of $21,000 which equates to a monthly payment of $182.00. For the year 2014 I impute to MRM an income of $25,000.00, which equates to a monthly support payment of $213 per month, and for the years 2015 and following I impute to him an income of $35,000 which equates to a monthly support payment of $318 per month. I will order that payments be made on the 10 th of each month commencing with January 10 th , 2014. Conclusion [ 58 ] My draft order is set out in the attached Appendix A.

________________________ E. L. Bayliff Provincial Court Judge APPENDIX A Draft Order - MRM v. KI THIS MATTER coming on for hearing at 540 Borland Street, Williams Lake, British Columbia on August 12 th , 13 th , 14 th and October 3 rd and 16 th , 2013. Persons Appearing: … Final Order AND UPON hearing the evidence called and the submissions of the parties; THIS COURT ORDERS THAT: 1. In this Order KI shall be referred to as “the Mother”, MRM shall be referred to as “the Father” and SSI, born [omitted for publishing] shall be referred to as “the Child”. 2.

This Order replaces the Orders of August 14 th , 2013 and October 18 th , 2013 and varies the Order of July 27 th , 2011 as it concerns relocation of the Child, the Father’s contact with the Child and child support. 3. Relocation : The Mother may relocate with the Child from Williams Lake, B.C. to a residence in the area of Kelowna, B.C. at any time after the start of Spring Break 2014 (S.D. #27 calendar). Once relocated, the Mother shall not change the residence of the Child outside a 60 kilometre radius of Kelowna, B.C. without the written consent of the Father or further order of the court. 4.

Contact with the Child if the Father resides within 100 km of the Child: Pursuant to ss. 67(2) (b), 59 and 60 of the Family Law Act , if the Father resides within a 100 km radius of the Child, the Father shall have contact with the Child as follows: 4.1 Regular

Schedule Unless Otherwise Agreed and Except as Set Out in 4.2, 4.3, 4.4 and 4.5 below: 4.1.1 Every second weekend : The Father shall have contact with the Child every second weekend from after school on Friday (or Thursday if Friday is a non-instructional day) to the start of school on Monday (or Tuesday, if Monday is a non-instructional day) (“the Father’s Weekend”). (The other weekend in a two week cycle is defined as “the Mother’s Weekend”);

4.1.2 Every Thursday overnight: The Father shall have contact with the Child every Thursday from after school until Friday at the start of school, except when it is the Father’s Weekend upcoming, in which case the Father’s contact pursuant to this sub-

section shall extend to after school on Friday; 4.1.3 Every second Tuesday evening: On the Tuesday following the Mother’s Weekend (every second Tuesday), the Father shall have contact with the Child from after school until 7:00 pm, at which point he shall transport the Child back to the Mother; 4.1.4 When transitioning from one of the holidays (see 4.2, 4.3, 4.4 below) back to the regular

schedule (see 4.1), the decision about whether the first weekend following the holiday is the Father’s Weekend or the Mother’s Weekend shall be made bearing in mind the Court’s goal that, apart from the school holidays set out in 4.2, 4.3, and 4.4 below, no more than 5 days go by without the Child having contact with the other parent; and 4.1.5 Pick up and drop off of the Child may be done by a parent personally or by his or her designate. 4.2 Christmas Unless Otherwise Agreed: 4.2.1 The “special days of Christmas” are defined as from noon on Christmas Eve to noon on Boxing Day.

The “regular holiday days” are the remainder of the school Christmas holiday, commencing at the end of the school day on the last instructional day and finishing at the start of school on the first instructional day after the Christmas holiday; 4.2.2 Odd numbered years: On odd numbered years beginning with 2013, the Father shall have contact with the Child on the special days of Christmas from noon on Christmas Eve to noon on Christmas Day and the Mother shall have parenting time with the Child from noon on Christmas Day to noon on Boxing Day. 4.2.3 Even numbered years: On even numbered years beginning with 2014, the Mother shall have parenting time with the Child from noon on Christmas Eve to noon on Christmas Day and the Father shall have contact with the Child from noon on Christmas Day to noon on Boxing Day; 4.2.4 Regular holidays shared equally: The Father and the Mother shall share the regular holiday days equally according to a

schedule agreed to no later than one month before the start of the school Christmas holiday (the “one-month deadline”), in writing, by e mail; 4.2.5 If the Father and the Mother cannot agree on how to share the regular holiday days by the one-month deadline, the Mother shall have the first half of the regular holiday days (except for the special days of Christmas which shall be governed by 4.2.2 and 4.2.3 above) and the Father shall have the second half of the regular holiday days (except for the special days of Christmas which shall be governed by 4.2.2 and 4.2.3 above). 4.3 Spring Break and Fall Break (if any) Unless Otherwise Agreed: 4.3.1 Shared equally: The Father and the Mother shall share Spring Break (and Fall Break if any) equally according to a

schedule agreed to no later than one month before the start of the school break (the “one-month deadline”), in writing, by e mail; 4.3.2 If the Father and the Mother cannot agree on how to share Spring Break (and Fall Break if any) by the one-month deadline, the Mother shall have the first half of the break, from after school on the last instructional day and the Father shall have the second half of the break, ending at the start of school on the first instructional day after the break. 4.4 Summer Break Unless Otherwise Agreed:

4.4.1 “Summer Break” is defined as the time between the end of school on the last instructional day of the school year to the start of school on the first instructional day of the next school year; 4.4.2 Two 7 day periods increasing to two 14 day periods: Until the child turns 8 (May, 2016) the Father and the Mother shall each have the care of the Child for two, separate, 7 days periods during the Summer Break. After that the Father and the Mother shall each have care of the child for two, separate, 14 day periods during the Summer Break (“Summer Vacation”). 4.4.3 At all other times during the Summer Break the regular

schedule of contact (4.1, above) shall apply except that the Father or his designate shall pick up the child at 3 pm at the Mother’s home or such other location as the parties may agree, rather than at the school. 4.4.4 The Father and the Mother shall develop a

schedule for Summer Vacation no later than June 1 st of each year, in writing, by e mail; 4.4.5 If the Father and the Mother cannot agree on a

schedule for summer vacation by June 1 st of each year the Mother shall have Summer Vacation with the Child commencing on July 1 st and on August 1 st and the Father shall have Summer Vacation with the Child commencing on July 15 th and on August 15 th ; 4.5 Special Days: 4.5.1 If the Child’s birthday (May 8 th ), the Father’s birthday (February 9 th ) or Father’s Day falls on a day when the Father does not have contact with the Child pursuant to this Order, then the Father may have contact with the Child between 9 am and 1 pm on that day, if it is not a school day, or between 3 pm and 6 pm if it is a school day; 4.5.2 If the Child’s birthday (May 8 th ), the Mother’s birthday or Mother’s Day falls on a day when the Mother does not have parenting time with the Child pursuant to this Order, then the Mother may have parenting time with the Child between 9 am and 1 pm on that day, if it is not a school day, or between 3 pm and 6 pm if it is a school day; 4.5.3 The Father shall transport the child to and from the contact provided for in

section 4.5.1. The Mother shall transport the child to and from the parenting time provided for in

section 4.5.2. 5. Contact With the Child if the Father Resides More than 100 km from the Child: Pursuant to ss. 67(2) (b), 59 and 60 of the Family Law Act , if the Father resides more than 100 km from the Child, the Father shall have contact with the Child as follows: 5.1 Regular

Schedule Unless Otherwise Agreed and Except as Set Out in 5.2 below: 5.1.1 One 3 day weekend per month: The Father shall have contact with the Child on one 3 day weekend per month from 6:30 pm on Friday (or Thursday if Friday is a non-instructional day) to 6:30 pm on Monday (or Tuesday, if Monday is a non- instructional day) (“the Father’s Weekend”). 5.1.2 Pick up and drop off:

The Mother or her designate, and the Father or his designate, shall meet at the community closest to the half way mark between their two residences to drop off and pick up the Child. 5.2 Christmas, Spring, Summer, Fall Break (if any) and Special Days: 5.2.1 The Father’s contact with the Child during Christmas, Spring, Summer and Fall Break (if any) (“the school holidays”) shall be as set out in sections 4.2, 4.3 and 4.4, above, except that any reference in those sections to the regular

schedule set out in

section 4.1 shall be read as a reference to the regular

schedule set out in

section 5.1; 5.2.2 For greater clarity,

section 4.5 dealing with contact and parenting time on Special Days, does not apply if the parents live more than 100 km distant from each other. 6.

Child Support: 6.1 Arrears accumulated in 2011 and 2012 are cancelled: Arrears of child support for the calendar years 2011 and 2012 are found to amount to $4,239.26 and, pursuant to s. 174 of the Family Law Act , are hereby cancelled together with all interest that has accumulated on such arrears; 6.2 2013: 6.2.1 The Father is found to have had an income, for Guideline purposes, during the calendar year of 2013 of $21,000.00 and to have been required to pay the Guideline amount of $182.00 per month for the support of the child in each of the twelve months of the year for a total of $2,184.00 in 2013; 6.2.2 If the amount of child support paid by the Father in 2013 is less than $2,184.00 then the difference between the two amounts is the amount of arrears of child support owed by the Father to the Mother, which sum is payable forthwith; 6.2.3 If the amount of child support paid by the Father in 2013 is more than $2,184.00 the Father is not entitled to re- imbursement of this sum, nor to a credit against his child support obligations in future years. 6.3 2014: 6.3.1 The court imputes to the Father an income for Guideline purposes, during the calendar year of 2014, of $25,000.00.

The Father is ordered to pay the Guideline amount of $213.00 per month for the support of the Child commencing on the 10 th day of January, 2014 and continuing on the 10 th day of each and every month thereafter in the year 2014; 6.4 2015 and thereafter: 6.4.1 The court imputes to the Father an income for Guideline purposes, during 2015 and thereafter, of $35,000.00 per year. The Father is ordered to pay the Guideline amount of $318.00 per month for the support of the Child commencing on the 10 th day of January, 2015 and continuing on the 10 th day of each and every month thereafter.