D.K.W. v. L.E.M.S. Date:, 2015 BCPC 238

Citation: D.K.W. v. L.E.M.S. Date: 20150819 2015 BCPC 0238 File No: 0935487 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: D. K. W. APPLICANT AND: L. E. M. S. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. J. BRECKNELL Counsel for the Applicant: M. Chiu Counsel for the Respondent: No appearance

Place of Hearing: Prince George , B.C. Date of Hearing: August 19, 2015 Date of Judgment: August 19, 2015 [ 1 ] THE COURT: This is an application brought on file number 0935487 by D.W. against L.S. as it pertains to issues surrounding the child H. D. A. W. born [omitted for publishing]. H. is 7 years old. [ 2 ] Mr. W. seeks an order to vary the order of Judge Weatherly made September 22, 2010. That order provides that the parties would have joint guardianship and joint custody of H. and that they would equally share H.'s parenting.

They were also ordered not to change H.'s residence outside the City of Prince George without further order of the court. [ 3 ] Mr. W. brought his Application to vary that order on October 31, 2014, alleging that Ms. S. was unfit to care for H. Ms. S. filed a Reply on November 19, 2014 opposing the Application, declaring that she was not unfit and has two other children in her care. [ 4 ] At the hearing that started this morning, only Mr. W. and Social Worker Simpson gave evidence. Ms. S. did not appear at the trial.

I am satisfied that she received notice of the trial date because she filed, with the court, a Notice of Change of Address on April 28, 2015 and the notice sent by the court subsequent to that date setting out the trial dates included the address she had provided. There is no indication that that correspondence came back as undeliverable and so the court presumes that she was aware of today's trial date. [ 5 ] Ms. S. did not appear at several of the pre-trials scheduled for this matter. [ 6 ] Mr. W. said in his evidence today that during his regular contact with Ms.

S. over the past several weeks and months, the topic of today's trial did come up on more than one occasion and she said, according to what Mr. W. tells the court -- and that is a statement against interest so it is not hearsay -- that she is prepared to give him whatever he wants and she did not want to be part of this. [ 7 ] That is how we get here today. [ 8 ] Having said that, Mr.

W. still has to satisfy the court that there has been a change of circumstances with regard to the child, in order to satisfy the court that a change in the child's present care regime is necessary and appropriate. [ 9 ] The evidence presented by Mr. W. in that regard consisted of himself and a witness. The witness was Ms. Simpson, a social worker for MCFD. She recounted the history of MCFD's involvement with Ms. S. and specifically Ms. S. because Ms. Simpson made it quite clear to the court that the Ministry has absolutely no concerns about Mr. W.'s care of H. [ 10 ] Ms.

S., however, has had a history of contact with the Ministry, generally centering around alleged drug use which had been substantiated on more than one occasion through various testing procedures, and her treatment of the children, H. and his two half- siblings, M. and C.B., who reside with Ms. S. but have a different father than does H. [ 11 ] It is alleged, and she acknowledged to Ms. Simpson, that on occasion she was yelling at the children. She denied some of the other allegations surrounding leaving H. alone to care for his younger siblings, although H. has told his father, Mr.

W., that that has happened more than once. And she denied at the time of the birth of C. in October of 2014 that she was taking any sort of opioid drugs but a subsequent blood test confirmed that she was. So she is not unfamiliar with telling the social workers untruths. [ 12 ] Subsequently, however, Ms. S. was tested at the request of the social worker, and those tests were negative for opioids.

She has also taken some parenting training that was required of her through the Northern Health Authority, and at this point in time, as far as the Ministry is concerned, they have no further involvement with her concerning her care of H. [ 13 ] There were numerous documents presented showing the history of Ms. S.'s interactions with the Ministry. Certainly over the course of time they are concerning, but recently it appears her abilities to parent are no longer seriously in contention so far as the MCFD is concerned. [ 14 ] That is not the case so far as Mr. W. is concerned, however.

He has pointed to a number of things that give him concern. He has talked about the condition of the home that Ms. S. lives in with the children, that it is dirty and messy and not maintained properly. He has expressed concern about the history of Ms. S.'s drug use. He is concerned that she may have re-familiarized herself with such drug use. He is concerned that she is not properly parenting H. insofar as the reports he receives from H. is that H. is shouted at, he is called denigrating names by his mother, and that his mother's partner has at least on one occasion used corporal punishment on H. which Mr.

W. objects to quite strenuously. [ 15 ] He also has provided evidence to the court that on the occasions that H. has been in Ms. S.'s care through the school year, he does not get to school on time and on some days he does not get to school at all. He says that is a concern for him because H. does have some minor difficulties with his speech and although he is in regular classes, he is not progressing to a level that would have made Mr. W. content. He also says that the teachers have expressed to him some concern about H.'s progress. [ 16 ] Mr.

W. also provided information that he has been unable from time to time to keep in regular contact with Ms. S. because she does not seem to be able to maintain a telephone number, and that sometimes, in order to find her, he has to go over to her residence or where he believes her residence to be. [ 17 ] He also expressed concern about her partner, one Mr. B., although he does not know Mr. B. well and has not had contact with him for some time. [ 18 ] Finally, Mr. W. describes information he received from a neighbour -- and it is hearsay, but I think it is relevant enough that the

court has to consider it -- that Ms. S. is rude to the children, including H., and that there has been drug paraphernalia observed in her residence, and that, as recently as last year, when H. came to spend some time with Mr. W., he came wearing clothing that Mr. W. describes as reeking of marihuana. He thinks that is an indication of Ms. S.'s neglectful behaviour. [ 19 ] As well, he says that H. has said on more than one occasion that Ms. S. does not maintain a proper store of food in the residence, and he comes into Mr.

W.'s care in a very hungry situation. [ 20 ] The court always has to be careful when hearing only one side of a story. But, in these circumstances, the court is hearing one side of the story because one of the participants chooses not to participate. [ 21 ] I do not consider this to be an ex parte hearing. Ms. S. had notice, she had the ability to prepare, she had the ability to come to pretrial conferences to indicate to the court what information, if any, she wanted from Mr. W. in advance, and to disclose to the court what information she was going to be relying on.

She has simply decided not to participate. [ 22 ] Having said that, the court still must make a decision as to whether or not a variation of Judge Weatherly's Order concerning what was then called guardianship and custody, and now would be called guardianship and parenting time and parenting responsibilities, is warranted. [ 23 ] Having heard the evidence of Mr. W. and Ms. Simpson, a variation of Judge Weatherly's order is warranted. [ 24 ] First, however, I would note that there will not be a change with regard to the issue of guardianship. The parties will be recognized as being the guardians of H.

There is no suggestion in the evidence given to me that Ms. S. is incapable of exercising decision-making when it comes to the broader issues of what guardianship is meant to encompass. [ 25 ] Under the Family Law Act , we no longer discuss words like custody. We talk about parental responsibility and parenting time. [ 26 ] Based on the evidence I have heard, I am satisfied that there needs to be a change to the parenting responsibilities. I am going to make an order under s. 40(3) that the parental responsibilities are allocated between Mr. W. and Ms. S. as follows: under s. 41, Mr.

W. will have the parenting responsibilities set out in paragraphs (a), (b), (c), (d), (e), (f), (g), (h), (k). Mr. W. and Ms. S. will be equally granted the parental responsibilities set out in paragraph 41(

i) and (j), and I make no order with regard to paragraph 41(l). [ 27 ] I would pause there parenthetically to tell Mr. W. that paragraphs (

i) and (

j) of s. 41 deal with receiving and responding to any notice that a parent or guardian is entitled or required to receive by law -- that would be things like notices of parent/teacher interviews, etc. -- so you're both equally entitled to that, and (j), requesting and receiving from third parties health, education or other information respecting the child -- that will permit Ms.

S. to make inquiries of H.’s teachers, doctors, dentists, to receive information about his treatment, but not to make any decision about the treatment process. [ 28 ] Turning now to parenting time, I agree that the parenting time as set out in Judge Weatherly's Order should be rescinded and replaced with a new order under s. 42. The new order will be as follows: that Mr. W. will be granted all of the parenting time with regard to H., save and except for the parenting time granted to Ms. S. in this order. [ 29 ] Ms.

S. will be granted parenting time to H. at such times, on such dates, for such duration and at such locations as Mr. W. shall agree to in writing. There will be a further order that if Ms. S. believes Mr. W.'s granting of her parenting time is unreasonable, she is at liberty to bring an application to vary her parenting time upon seven days' written notice to Mr. W. [ 30 ] I will pause there parenthetically to say, Mr. W., you and she are going to have to see if you can work out a schedule. You get the final say on the schedule. You will give that

schedule to her in writing. It might be long term, for several months, it might be from week to week, it might be for summer, or whatever. If she disagrees with that schedule, she is at liberty to bring an application to vary the parenting time. [ 31 ] You should also note sir that the Family Law Act provides that if you unreasonably withhold parenting time from her and the court determines you have done so, the court can grant her what is called make up parenting time.

So if she felt that she, for example, wanted a week in August and you said no, and later the court said yes, she should have had that week, she might get that week again and an additional couple of weeks just as a lesson to you to be more reasonable. [ 32 ] Finally, turning to the issue of support. There is no formal part of the order sought in the application filed October 31, 2014, seeking to change the support order that was originally granted by the court on April 21, 2010 by now-retired Judge Dollis. That amount required Mr. W. to pay $350 per month. [ 33 ] I am satisfied that Mr.

W. has maintained the payments required of him and I am satisfied, based on the documents provided to the court, and in particular exhibits 10 and 11, that the Family Maintenance Enforcement Program holds in trust certain sums of money which, based on the documentation presented to the court, was $2,770.87. [ 34 ] Based on the new order that I have made concerning H.'s care, I am satisfied that the order of Judge Dollis made April 21, 2010, should be rescinded effective August 19, 2015. [ 35 ] With regard to the monies presently held by the Family Maintenance Enforcement Program, Mr.

W. seeks return of those monies on the basis that he has been primarily caring for H. since the notice was filed on October 31, 2014. That assertion, in my view, is not borne out by the evidence presented by Mr. W. as noted in exhibit number 9 insofar as it would appear that there are periods of time when he has H. in his care and there are periods of time when Ms. S. had H. in her care, and as such, I am directing that the funds being held by the Family Maintenance Enforcement Program be divided into two portions, one portion being two-thirds of the amount held, which will be returned to Mr.

W., and the other portion being one-third of the amount held to be forwarded to Ms. S. because she was in care of H. for portions of the time since October 31, 2014.

[ 36 ] I will also make an order today that, effective August 19, 2015, there are, upon division of the funds that I have just described, no arrears due and owing by Mr. W. to Ms. S. [ 37 ] I will order a transcript of my reasons, Madam Clerk. (REASONS FOR JUDGMENT CONCLUDED)