A.J. v. B.W. Date:, 2016 BCPC 184

Citation: A.J. v. B.W. Date: 20160614 2016 BCPC 0184 File No: 103845 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A.J. APPLICANT AND: B.W. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P.V. HOGAN Counsel for the Applicant: J.J. Peterson

Counsel for the Respondent: R. Okayama Place of Hearing: Kelowna , B.C. Date of Hearing: March 21, 22, 23, 2016 Date of Judgment: June 14, 2016 [ 1 ] M. is a charming 5 year old who loves both his parents. B.W. the father and A.J. the mother separated in 2013 in Alberta when he was 2 years old, but he has managed to spend time with both of them. M. is lucky in that both parents love him and are independently capable of looking after him in the absence of the other parent.

M is unlucky in that his parents remain negatively emotionally enmeshed with each other, complicated by the fact that his father lives in Edmonton, where he has established a new family, and M.’s mother has established a new family and lives in Kelowna. Both parents create tempests over their son’s care by the other parent. They both agree, in words if not in deeds, that there should be some form of co-parenting scheme for M. in which they cooperate, while both remain insistent that only their home should be M’s primary residence. THE FACTS [ 2 ] B.W. is 40 now. A.J. is 27 years old.

Both were raised by one parent in fractured families. [ 3 ] They met in Alberta in 2008, when A.J. was working at a hotel as a desk clerk at a hotel, and B.W. checked in as a guest. He was in town for work and they dated. A.J. was 20 years old, and had just left behind a four year relationship. B.W. was 33 years old and married with a child. In the fall of 2008 A.J. moved to Calgary and within six months they moved in together, separated and moved back together in March 2009. They never married.

Initially they worked hard at their jobs, but were financially irresponsible, devoting a large percentage of their income to B.W.’s “dream car”, which was eventually repossessed, moving regularly while occasionally falling behind in their rent and recreationally using ecstasy, cocaine and marihuana. [ 4 ] They consumed alcohol excessively. They established a pattern of effectively splitting up, even while remaining in the same residence, and reconciling.

A.J. was continuously employed, while B.W. was hurt at work in 2009 and spent a year on EI, and another year of sporadic employment before only regaining work at the end of 2011. B.W. had his driver’s license suspended for nonpayment of maintenance for his daughter from his previous relationship. In 2012 A.J. declared bankruptcy. [ 5 ] M. was born in 2012 and both parents spent time looking after him, when they were together. Although they now raise various complaints about each other as spouses, they were content to leave M. in the other parents care when it suited each of them.

A.J. in brief faults B.W. for his financial failures to provide for them, and his bad behavior while drinking alcohol. B.W. faults A.J. for infidelity and impulsivity. A.J. reports that B.W. became heavily intoxicated at M.’s second birthday party, and behaved boorishly while being aggressive towards her mother.

She also testified how B.W. showed up at her place of employment, only weeks later in July 2013, caused a scene, assaulted her and her co-worker J when he found them kissing, drove around Calgary while intoxicated, kicked down a door at their residence, and was removed in the early morning hours by the police. A.J. then rushed to Saskatoon with M., to spend four days in a hotel with her sister and sister’s boyfriend.

B.W. provided her with funds to rent a U-Haul and return to Calgary, while B.W. spent a couple of weeks working in Edmonton. [ 6 ] From July to October 2013 A.J. was involved in a relationship with J. On October 1, 2013, A.J. left Calgary with M., first for Kamloops where her mother lived, and then to Kelowna where a sister lived. [ 7 ] M. was shuttled back and forth between his parents. In Alberta in July 2014, after midnight one night, A.J. misrepresented herself to B.W.’s sister as picking up M. with police assistance, when she was in fact only accompanied by two marihuana smoking companions.

A.J then took M. back to Kelowna. [ 8 ] It’s not necessary to set out the subsequent court orders in both Alberta and British Columbia, except to say that M. still continued travelling back and forth between his two parent’s residences. THE PARTIES CURRENT SITUATION [ 9 ] After separating from A.J. in 2013 B.W. was in at least two temporary relationships with women, who had children from their previous relationships. B.W. then established a new relationship with a financially successful professional woman, in the spring of 2014. B.W.’s partner R.H. owns a company that provides services to special needs children.

R.H. owns an appropriate house for family life. She has three children, from a previous relationship, who have varying degrees of special needs. Her three children spend time with their biological father and when in her home B.W. provides a considerable amount of the day to day care for them. Of all the four adults in M.’s life she presents as the one most capable of meeting a child’s needs.

She has financed B.W.’s struggle with A.J., the s.211 family report, a private investigator’s report on A.J. and a business venture that B.W. is trying to establish, although she has been sensible enough to set limits on her financial contribution. She has had a positive role in B.W. meeting his financial obligations to his daughter of a previous relationship. B.W. has been able to reduce his maintenance arrears for his daughter from $18,000.00 to about $9,000.00 now. He pays $550.00 per month for current maintenance for his daughter and $200.00 per month toward arrears.

B.W. is moving towards a regular relationship with his daughter. In early 2015 B.W. commenced paying $295.00 per month maintenance for M. B.W. has MS, but is in remission, and has a medical marihuana prescription for treatment of chronic pain, from a series of work related injuries.

[ 10 ] After moving to Kelowna A.J. has continued to work steadily. In 2014 she met P, who she now lives with and they have had a child. P is a steadily employed tradesman, who provides financially for the family; he wants to marry A.J. Although perhaps a little immature in his understanding of children, he is a responsible and reliable parent to M. A.J. is now completing the second year of full time studies at a local college; she expects to complete a four year business degree. She looks after M. and her new child appropriately, with no parenting concerns.

She is in good health, and neither she nor her new spouse is involved with using recreational drugs. THE S. 211 REPORT [ 11 ] An FLA s.211 report was conducted by a registered psychologist. It was helpful in that it confirms each party’s capacity to parent M. However the psychologist seems to have unfortunately misunderstood some of the legal background in this case, referring to it as a mobility case, which it is not.

The psychologist was also misled by both the parties as to their mutual willingness to work with each other, as they downplayed their animosity and mutual efforts to sabotage each other, which was revealed at the trial. The psychologist’s conclusion that M should spend one year at a time rotating between his parents is accordingly not grounded in the facts, and I don’t follow it. At the trial neither parent has displayed an interest in that proposal. THE FAMILY LAW ACT [ 12 ] The Family Law Act requires the court to act in the best interests of M. only . All M.’s needs and circumstances must be considered. (

a) M.’s health and emotional well-being: [ 13 ] Both parties have cared for M.’s health; he has no present health concerns. [ 14 ] I accept that A.J. has subtly tried to negatively influence M. about his father, as the child has demonstrated an inappropriate knowledge of the financial aspects of his parents spat. He has questioned his father as to B.W.’s ability to even pay for a meal for him, something that is beyond the grasp of a four or five year old to independently conclude. A.J. has obstructed M.’s visits with his father, often raising last second objections or difficulties over visits.

Since this trial commenced in 2015 she has twice raised difficulties about M. visiting his father, which then had to be referred back to court to resolve. She talks cooperatively while being obstructionist in her actions. [ 15 ] B.W. has demonstrated an unusual level of suspicion of A.J., which can only in the long run negatively effect M. B.W. has foolishly commissioned a firm of private investigators to spy on A.J., M. and P. during these proceedings. H. has reported A.J. and P. to child protection services on one recent occasion for fears of M.’s mistreatment.

Absolutely nothing came of that latter report, except increasing A.J.’s suspicions of B.W. Because of a report to child protection services in Alberta M. was subjected to two interviews by social workers. [ 16 ] The parties both shared with the court their relationship in texts. Two large binders of messages reveal the complexity of their relationship, sometimes chatty and co-operative, but then also needy, vulgar, argumentative and sometimes hostile.

There is nothing significant revealed about their care of M., and so the texts are of no help. [ 17 ] Taking into account their mutual mistakes neither party has an advantage. (

b) M.’s views: [ 18 ] At age five M’s views as to what are in his best interest are simply beyond his grasp. He loves both his parents, wants to see both of them and that is enough for a child of his age. (

c) nature and strength of the relationships between M. and significant persons in his life: [ 19 ] M knows both his extended families and loves them as well. He gets along well with B.W.’s new partner and A.J.’s new partner. It is reported that he loves his new baby brother and that he enjoys the company of and fits in well with the children in B.W.’s current relationship. He has appropriate relationships with other children of his age. This is not a factor which favors either party. (

d) history of M.’s care: [ 20 ] Both parents day to day care for their son has been appropriate. [ 21 ] Both parties have a lack of regard for the traffic laws. A.J. speeds well over the limit while M. is a passenger in her vehicle, while B.W. consistently drove M. around in Calgary when his driver’s license was suspended. [ 22 ] A.J.’s midnight removal of M. from his aunt’s residence in Alberta was not in his best interest; it was a foolish and impulsive act which met only A.J.’s needs. This only increased animosity between the parties. I also conclude that she likes to place roadblocks

between M. and his father when its B.W.’s parenting time, taking impulsive and unilateral actions. [ 23 ] For his part B.W. wasted a considerable amount of money on having private investigators snoop on A.J. These funds should have been spent on his children, either by reducing his arrears for his first child or by providing extra financial support for M. That reflects badly on him in how he determines his priorities for M. [ 24 ] Once again their mutual mistakes mean this is a neutral factor (

e) M.’s need for stability: [ 25 ] Both parents see themselves as being in emotionally stable and enduring relationships, but this can’t really be measured accurately when they both have a demonstrated capacity for changing partners easily. B.W. is involved in his third significant relationship; A.J. candidly expresses the view that she is in only her third significant relationship, as if she accepts that there may be more to come. Both have been temporarily involved with other people as well. [ 26 ] A critical factor looked at from M’s perspective, is which home will be the least stressful for him.

A.J.’s situation with one sibling and two young healthy parents to focus on him offers him a conventional upbringing. B.W.’s situation, although it has virtues, is one in which the family unit is subject to too many disparate forces, potentially tugging simultaneously at M. B.W. and R.H. acknowledge inherent stresses in their relationship which require counselling to help them. They are considering moving to another city. There are already three children in the home, two of which have some form of special needs requiring extra attention.

The children also have to spend time away from the home with their biological father. As well B.W. is trying to reintegrate his first child, who lives in another city, into his life, and that will inevitably absorb his time and energy. R.H. is trying to expand her business; B.W. is trying to start a business, while suffering from chronic pain and MS, although the latter is fortunately in remission at the moment. [ 27 ] The potential for M. to get lost emotionally inside B.W.’s home, where the adults have to focus on so many simultaneous and stressful issues is simply too great. This factor clearly favors A.J. (

f) the ability of a guardian to exercise his or her responsibilities for M. [ 28 ] Both parties are able to exercise their responsibilities. This is a neutral factor. (g) (

h) impact of family violence, (

i) any risk associated with the guardians cooperating on issues involving M or (

j) civil or criminal proceedings. [ 29 ] The Family Law Act directs me to consider issues of family violence as an important factor in determining the best interest of M. I do accept that there was one assault by B.W. on A.J., and possibly another, and that in anger B.W. is capable of aggressive behavior. However I don’t think it is an issue directly affecting M. now as B.W. and A.J. are separated, and have met many times without any recurrence. They are civil to each other. There have been no difficulties with their new spouses.

A.J. certainly did not feel that B.W. was any threat to M., having left him in his father’s care often after their separation, and does not express any present concerns about B.W. being violent. [ 30 ] None of these concerns are a live issue. WHAT IS TO BE DONE? [ 31 ] There is no happy ending in this for M. but hopefully he can prosper.

While he will be adequately cared for in either home, a best interest test still leaves him far away from one of his parents for long periods of time, travelling a considerable distance between his two homes. [ 32 ] B.W. is the parent who is least likely to disrupt M.’s visiting with the other parent, and keeps ties alive with the other parent, while A.J.’s home offers the most day to day stability for M. Because it is the totality of the daily situation for M. that is the most important in his development, I conclude that M.’s primary residence should be in Kelowna with his mother.

It offers the most conventional home situation for M. Both parents remain guardians of M., his primary residence will be with A.J. and B.W. should have as much parenting time with his son as possible, taking into account the considerable distances between the parents. Parenting time for B.W. shall be in the city where he resides, as there is no reason at all for his parenting time to be in Kelowna. Because of the great physical distance between the parties and their mutual disagreements and suspicion co-parenting is not realistic. A.J. shall have the day to day parenting responsibilities for M.

B.W. shall receive all information re M.’s schooling directly from M.’s school, health reports from doctors or dentists, sports coaches etc. There should be a

schedule for regular telephone contact or electronic means for M. to speak with the other parent when he is spending parenting time with one of them [ 33 ] Although the court can order the parenting time for M. with B.W., because the parents have both expressed an interest in a very conventional split vacation and holiday

schedule in the home of the other parent I am going to leave it to counsel to see if they can work out a schedule, by consent. This is a last chance for them to retain some input into the situation. The

schedule of travel should not be too onerous on M., and so it may be appropriate for M. to spend longer than usual parenting time with his father when he is visiting. They have already made arrangements for the coming summer, so they should be able to work this out. I will suggest that transportation still primarily be by car, meeting half way. If one parent thinks flights are superior, they can bear the cost on their own. Finally if the parties

are unable to agree, counsel can appear in front of me, without the need for their clients to attend, and on submissions alone I will draft a schedule. [ 34 ] Maintenance for M. shall remain at $295.00 per the terms of the current order. I will order that B.W. provide a copy of his current annual tax filings to A.J. by June 1 of each year.

I will order that B.W. has no obligation for special expenses involving daycare, as it was A.J.’s unilateral decision to move M. one province away from where his father could have easily looked after M. [ 35 ] Finally although M will be remaining with A.J. it is important that she understand that if she were in future attempt to thwart B.W.’s time with M., or impose unilateral restrictions on M.’s visits with B.W. that the Family Law Act contains provisions for fines for offending guardians. She should discuss and obtain legal advice before acting, not waiting until after she acts unilaterally.

A.J. should be aware that in extreme cases of obstruction there are situations where the primary residence of a child has been changed for non- cooperation by the parent with the primary residence. THE HONOURABLE JUDGE P.V. HOGAN