V.B.H. v. H.B.V. Date:, 2015 BCPC 40

Citation: V.B.H. v. H.B.V. Date: 20150226 2015 BCPC 0040 File No: 10782 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: V.B.H. APPLICANT AND: H.B.V. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Appearing in person: V.B.H.

Counsel for the Respondent: K. K. Seikhon Place of Hearing: Abbotsford , B.C. Dates of Hearing: Oct. 15, Nov. 24, 2014, Jan. 23 and 26, 2015 Date of Judgment: Feb. 26, 2015 Introduction [ 1 ] The Applicant V.B.H. and the Respondent H.B.V. are the parents of the two children who are the subject of this application: their daughter M.V.V., born (d.o.b.), 2002, and their son J.R.A.V., born (d.o.b.), 2004. The parties lived together from 2001 until 2005, when they separated. Initially, following the separation, the children who are the subject of this application went to live with the Applicant.

On January 28, 2008, a consent order was entered into, which provided that the Applicant was to have sole custody of the children, the Respondent was to have specified access to them, and both parties served as the children’s guardians under the Family Relations Act. [ 2 ] On September 28, 2010, the parties consented to an order that rescinded all previous orders and gave the parties joint custody and joint guardianship of the children.

The order provided that the children would reside primarily with the Respondent and it spelled out those times when the Applicant would have access to the children. [ 3 ] On October 30, 2013, the Applicant filed an application to change the order of September 28, 2010. She asks that the children spend an equal amount of time in the care of each parent. The Respondent is opposed to this and asks that the children remain primarily in his care.

Each of the parties has also filed an application asking that the other party pay child maintenance. [ 4 ] At the hearing of these applications, each of the parties testified. Also called as witnesses were each party’s current spouse, and the Applicant also called her best friend as a witness. Following is a

summary of the evidence presented at trial, the applicable law to this application, and the reasons for making the order made in response to these applications.

Summary of Evidence [ 5 ] The Respondent is 34 years of age and the Applicant is a few days shy of also turning 34. According to the Respondent’s evidence, the couple met in elementary school and they remained friends throughout the rest of their school years, but were not romantically involved. The Applicant gave birth to a son in 1999 when she was in another relationship, and the Respondent’s family helped the Applicant to look after that child.

A relationship developed between the parties (he says this began in 2000 and she says it was in 2001) and in late 2001 the Applicant became pregnant with her daughter M.V.V. [ 6 ] The relationship became more serious at this time, but it was also a rocky one. The parties were young and immature and according to the evidence of the Respondent, there was some physical violence in the relationship and that it went “both ways”, with police being called on at least one occasion. The Respondent recalls that the couple began living together either in late 2001 or early 2002.

M.V.V. was born on d.o.b., 2002 and two years later, on d.o.b., 2004, J.R.A.V. was born. The couple continued to have their arguments and they separated sometime in 2005. [ 7 ] When the couple separated, the two children went to live with the Applicant. On November 15, 2005, an order was made that required the Respondent to pay the Applicant monthly child support of $515. At the time the Applicant was receiving income assistance. [ 8 ] In 2006 the Applicant married J.H. The Applicant and the children moved to Coquitlam because that was where her new husband was employed.

She was able to get off of income assistance and obtain subsidized housing in Coquitlam. In December of 2006 the Applicant gave birth to a daughter. [ 9 ] In the same year, the Respondent began a relationship with S.V. his present wife. S.V. recalls that the two of them moved in together in April of 2006. The relationship appears to be a good one and the Respondent’s new partner has shown a genuine interest in the children, while maintaining an appreciation of the Applicant’s role in the children’s lives.

There was some tension early on in the relationship as evidenced by some less than cordial communication between the Applicant and S.V., often about the subject of child support. S.V. testified that there has never been any violence between her and the Applicant, but the Applicant has threatened her, saying things such as “don’t show your face or you’re gonna get punched.” [ 10 ] In January of 2008 the parties met with the Family Justice Counsellor and they were able to reach agreement on the terms of a consent order, which was made on January 23, 2008.

Under the terms of that order, it was ordered that the Applicant would have sole custody of the children under the Family Relations Act , which was then in force. The Respondent was ordered to have access to the children at times specified in the order and it was also ordered that the parties were joint guardians of the children. It was also agreed and ordered that the residence of the children would remain within the part of British Columbia known as the lower mainland.

It was also agreed and ordered that the child maintenance payable by the Respondent would increase to $753 per month for the support of the two children. Over the next two years, the parties were before the court to vary the times and conditions of the Respondent’s access to the children. [ 11 ] In the summer of 2008 the Applicant gave birth to a son, her youngest child. The Applicant described her new spouse J.H. as a good husband, but it is apparent that she has encountered some difficulties in her new relationship. Her husband began finding himself in trouble with the law.

On March 12, 2008 he was arrested in Langley for driving while prohibited and in August he was given a fine of $500 and a victim fine surcharge of $75 for that offence and he was prohibited from driving. In October of 2008 he was arrested again, this time for driving while prohibited and leaving the scene of an accident. This incident resulted in fines of $1000 and a $150 victim fine surcharge. In February of 2009 he was arrested in Vancouver for driving while prohibited once again and he was fined $700. Each of

these incidents of driving while prohibited would likely have attracted a further driving prohibition. [ 12 ] In June of 2009 J.H. was charged with assault in Coquitlam, an incident which was resolved by his entering into a twelve month recognizance under

section 810 of the Criminal Code later that month. He described this incident as “an accident”. He testified that he had just returned from Guatemala after being away for three months and that he was “traumatized”. He did not say specifically what had happened, but testified that he apologized for the incident. [ 13 ] J.H. was arrested again in October of that year, once again for driving while prohibited. He was sentenced to fourteen days in jail for this offence in September of the following year. [ 14 ] The Respondent testified that he was aware of problems in the Applicant’s home.

His daughter had complained to him about J.H. drinking to excess, and she had said that J.H. had struck her with a slipper, in anger. The Respondent called the Ministry of Children and Families to investigate the matter. A Report to the Court filed in connection with a subsequent incident by a social worker makes mention of the “slipper” incident, but no orders were made under the Child Family and Community Service Act at that time. J.H. testified that he has never physically disciplined any of the children.

In cross-examination he testified that he has stopped drinking and that he has never had a problem with drinking. He later said “I only drink maybe at Christmas, that’s it.” [ 15 ] The Applicant downplays her husband’s problems with alcohol. She stated in cross-examination: “He did have a problem with alcohol. He still drinks, but it’s not like before. He’s not binging.” She also acknowledged that “this past August [of 2014] he had a beer.” [ 16 ] The difficulties taking place in the Applicant’s home led to a decision in 2009 to have the children reside in the Respondent’s home in Abbotsford.

The Respondent said that the Applicant called to tell him that the children would be coming to live with him, and he didn’t argue. This took place commencing with the start of the school year in 2009. At that time he enrolled the children in (omitted for publication) School. The Respondent testified that his daughter was happy with the change in residence, while his son seemed indifferent about it. [ 17 ] This arrangement continued into the next school year and the parties decided to set out the new regime in a court order that was negotiated with the help of the Family Justice Counsellor.

The order was made on September 28, 2010. It provides that the parties have joint custody and joint guardianship of the children, and that the children would reside primarily with the Respondent. The Applicant’s times for having access to the children were also set out in the order. The order was silent on the subject of child maintenance. Aside from some adjustments made to the Applicant’s access times, this order remains in force.

The Applicant testified that she thought that this was in the best interests of the children at the time, but that she now regrets agreeing to the order. [ 18 ] In April of 2012, the Applicant and her family moved from Coquitlam to Abbotsford. The Applicant’s husband continued to have problems with the law. The Applicant described this as a “rough patch” in her marriage. J.H. was arrested in Langley, BC on April 14, 2012 for impaired driving, and eight days later, on April 22, 2012, he was arrested again by the Abbotsford Police for impaired driving and for failing to stop at the scene of an accident.

He remained in custody and on June 22, 2012, he was sentenced to a further three months in jail, in addition to the two months that he had spent on remand.

He was given a five year driving prohibition and was placed on probation for a year, effective from the date of his release from custody, with conditions that required him to abstain from the possession or consumption of alcohol or controlled substances, not to enter any liquor store, beer and wine store or licensed beverage room, and to participate in any counselling as directed by his probation officer. [ 19 ] While the criminal proceedings were going on, the Ministry of Children and Families commenced proceedings under the Child Family and Community Service Act .

In a Report to the Court, filed on June 12, 2012, social worker Tara Weber stated that when J.H. was involved in the drinking and driving episode of April 22, 2012, his four year old son was a passenger in the vehicle. Ms. Weber’s report also stated that when the vehicle was stopped after fleeing the scene of an accident, J.H. was observed actively drinking while driving and there were open cans of beer in the car. The child was taken to hospital and later released into the Applicant’s care. Ms.

Weber writes in her report: In speaking with J.H.’s wife, V.B.H., she expressed concern about J.H. engaging in binge drinking and described his behaviour lately as “unpredictable”. She stated that he had repeatedly (two weeks prior) committed a “disappearing act”, later to be found by police under the influence of alcohol. V.B.H. indicated that the frequency and quantity of his alcohol use seems to be limited to the weekends, where he will consume a 12 pack of beer in a day.

The child, M--- (age 5), commented that her father “drinks beer all the time, I saw him drunk a lot.” M--- indicated that when her father drinks, “he starts to act crazy”, but could not provide a definition of crazy. The child, N--- (age 12), indicated that his father consumes alcohol regularly, from 1-10 beers. He commented that he would often see empty beer cans or bottles around the home. N--- says that his father’s drinking gets “out of hand”. He described his father’s behaviour after consuming alcohol as moving side to side, blurry eyes, saying “stupid or silly things” and falling asleep. [ 20 ] In Ms.

Weber’s report, J.H. told the social worker that he didn’t think he had a problem with alcohol. He blamed the problem on some anti-depressants he was taking, which reduced his tolerance of alcohol. [ 21 ] On July 3, 2012, an order was made under

section 33.2 of the Child Family and Community Service Act which directed that the children would remain in the care of the Applicant and J.H., under the supervision of the director, pending a protection hearing. The order required J.H. to abstain from the possession or use of alcohol while in the presence of the children, and that his contact with the children was to be supervised. The Applicant was deemed to be an appropriate supervisor. J.H. was also supposed to attend counselling [ 22 ] On August 14, 2012, a three month supervision order was made under

section 41 of the Act, directing that the children remain in their parents care under the supervision of the director. The order was subject to the same terms as the order of July 3, 2012. This

appears to be the last appearance in court on that matter. [ 23 ] The Applicant testified that when she was experiencing these difficulties with her husband, she was able to get along better with the Respondent. The Respondent’s wife S.V. operated a day-care and the Applicant enrolled her children in that day-care. J.H. recalls that this began in October of 2012 and he describes this as a good decision.

He testified that the Respondent’s wife did not charge for this service and that everyone was getting along very well at this time. [ 24 ] When the school year began in September of 2012, the parties attempted to divide the children’s time equally by having them spend alternating weeks in each home. J.H. testified that this was the plan and he recalls that it was followed when he returned home after serving his sentence. But this didn’t work very well and sometime in October, the children returned to residing primarily with the Respondent.

S.V. testified that M.V.V. complained that she was unhappy spending time in the Applicant’s home because the Applicant and J.H. were always fighting. S.V. recalls that the “week on, week off” arrangement ended sometime in November of 2012. In spite of this, the Applicant’s two younger children remained in S.V.’s day-care until July of 2013. [ 25 ] The parties returned to the practice of having the children reside in each home in alternating weeks during the summer of 2013. In July of that year, J.H. was offered a very good job in Kitimat, BC and he took the job while the Applicant stayed home with the kids.

He left the job in September because he missed his family too much. [ 26 ] Sometime in 2013 both of the parties had moved to new homes in Abbotsford and the children changed schools. The children were now attending (omitted for publication) School in Abbotsford. This was close to the Applicant’s new residence. The Applicant applied for 50% of the child tax credit and the Respondent did not object to this. Everyone began the 2013-14 school year by continuing the arrangement of having the children reside a week in each of the parties’ homes on an alternating basis, but once again this ran into problems.

According to the Respondent, his son was not doing his homework when he was at the Applicant’s home and the son began to lie about doing his homework while at the Applicant’s. The Applicant later testified that she would like to change J.R.A.V.’s school and place him back into (omitted for publication) School. [ 27 ] In the fall of 2013, M.V.V. complained to the Respondent and S.V. about J.H. She said that on one occasion, after she had come out of the shower, J.H. had come into her room and hit her on the head.

The Respondent and S.V. told the Applicant about the incident in a text message, which produced in evidence. The Applicant responded with the text message “you can both fuck right off.” In the message, the Applicant did not deny that the incident had taken place. Instead she accused the Respondent of being hypocritical. J.H. also testified about this incident, describing it as “an accident”. [ 28 ] Shortly after that incident, the parties met at a Tim Horton’s restaurant to discuss the children. J.H. recalls that this meeting took place on October 24, 2013.

The Respondent testified that he and his wife wanted to discuss the children’s concerns about the Applicant’s home, but he recalls that the Applicant and her husband wanted the Respondent to pay them money for child support. In the Respondent’s words, “everything escalated.” He told the Applicant that he wanted to follow the terms of the court order. He went to the police to see about getting the order enforced, but because there was no provision in the order for police enforcement, the police chose not to get involved in the matter.

J.H. testified that he also remembered that things did not go well at the meeting, but he says that it was the Respondent who was unreasonable and who threatened to call the police to take the children from the Applicant’s home. [ 29 ] On December 10, 2013, the parties appeared in Family Court and an interim order was made fixing the Applicant’s parenting time as being from Friday after school until the following Monday.

The Family Justice Counsellor was ordered to prepare a “Views of the Children” report. [ 30 ] On January 19, 2014, an incident occurred at the Applicant’s home that once again involved the attendance of the police. According to the court file 80551-K, this time it was the Applicant who was charged with the offence of assault. She was released on an undertaking given to a peace officer on conditions that she was to abstain from the consumption of alcohol and not to possess any weapon as defined in

section 2 of the Criminal Code . The Applicant was vague about the details of what took place during this incident. The court file shows that on April 11, 2014, the Applicant was placed on a Recognizance to Keep the Peace under

section 810 of the Criminal Code. The Recognizance was for a term of one year and contained conditions which require the Applicant to abstain absolutely from the possession or consumption of alcohol, not to enter any place of business where the primary commodity or business is the sale or distribution of liquor and to attend for and complete counselling as directed by her probation officer. The Applicant said, in reference to this incident, “I was extremely stressed” and she called this her “meltdown”. She claimed that she had thrown a cup and it had bounced off of a wall and it struck her husband.

She says that the police were called in response to a noise complaint. [ 31 ] On January 30, 2014, Family Justice Counsellor Pam Cripps filed the first of her two “Views of the Children” Reports under

section 211 of the Family Law Act. In the first report, Ms. Cripps concluded as follows: M.V.V. appears to have made a connection with S.V. and she is enjoying spending more time at her dad’s home, with regular contact with her mom, while J.R.A.V. has been confused about what plan might work best for him. He thought he wanted to spend more time with his dad than the alternating week

schedule that was happening in the fall of 2013, but after trying on a different schedule, he has suggested that he would now like to revert back to the alternating week arrangement that sees him spending his time equally in each parent’s home. [ 32 ] On March 21, 2014, the parties attended at a Family Case Conference and a consent order was made in which the Applicant was given additional parenting time with the children on Wednesday evenings from after school until 7:00 p.m. [ 33 ] In August of 2014, M.V.V. returned home from a visit with the Applicant and her husband earlier than she was scheduled to.

J.H. testified that M.V.V. was yelling and being disrespectful. He felt that he was not in a position to discipline her because of what had gone on in the past, so the child was returned home to the Respondent. In an email sent from the Respondent and his wife to the Applicant on August 28, 2014, reference is made about a complaint from M.V.V. that J.H. “would constantly knock her on the head to get attention” and that he was “being very rude to [her] after he had a few drinks.” In an email sent in response, the Applicant writes

“I’ve done what I had to do, maybe a bit of tough love will make her realize that she should appreciate what we have done for her more.” The Applicant concludes “this whole situation sucks.” [ 34 ] In September of 2014, the Respondent enrolled the children in counselling with Cares Counselling and Restoration Services, at his expense. The children see their counsellor once per month. The counselling has been of some benefit. For example, the Respondent states that he had been pressuring his daughter to improve her grade in math at school by enrolling her in a program called Kumon.

This program had been a source of conflict in the home because M.V.V. did not like doing the work required by the program. She had put up some resistance to this and it was a source of friction between the child and her father. The counsellor has recommended stopping the Kumon counselling and the Respondent has followed the counsellor’s recommendation. He now realizes that he was wrong to try and force her to take the program and in doing so, he was only adding to her stress. [ 35 ] J.H. testified that he has witnessed a change in the children’s behaviour as far as their relationship with him is concerned.

He says that they appear fearful about talking to him and to the Applicant, and that the children no longer call him “Daddy”. J.H. continues to work in the concrete industry. The Applicant drives him to and from work, and stays home to care for the children. [ 36 ] On September 18, 2014, the second of two “Views of the Children” Reports under

section 211 of the Family Law Act was filed. In this report, Family Justice Counsellor Pam Cripps describes the children as feeling “the pressure of being caught in the middle of their parents’ conflict.” According to Ms. Cripps, M.V.V. finds spending time at the Applicant’s home “stressful due to all the talk about court proceedings, child support and negativity from her mom towards her dad and step-mom S.V.” She says that J.H. complains about the Respondent not paying child support, even when she tells him that she does not want to hear about it.

She says that the Applicant ignores her pleas to “stop bringing up the court stuff”. [ 37 ] According to what M.V.V. told Ms. Cripps, the Applicant has threatened to move the family to Alberta. M.V.V. told Ms. Cripps that she feels more comfortable in the Respondent’s home and describes returning from visits with the Applicant as feeling as if a weight has been lifted off of her shoulders. [ 38 ] J.R.A.V. told Ms. Cripps that he gets along well in both homes although he said that he feels “a bit more comfortable” in the Respondent’s home because it is “slightly more quiet”.

He expressed one complaint, that being about having limitations placed on his ability to contact the Respondent when he is at the Applicant’s home. [ 39 ] The anticipation of this hearing has not put the parties in the most generous spirits towards one another. Tension and agitation can be found in their email and text message communications. For example, in an email exchange occurring in advance of the Thanksgiving weekend, the Applicant attempts to make a unilateral decision about the holiday weekend, despite the fact that the existing court order makes no reference to parenting time during the weekend.

She writes “I have taken it upon myself to take the first half. They will be picked up on Friday after school until Sunday morning… We are NOT going to alternate holidays or spring breaks or Easter. These holidays will be split from now own.” When the Respondent expressed a preference to follow the court order, the Applicant emailed him back and accused the Respondent and his wife of “ruining” Thanksgiving and of having “no heart let alone a soul.” [ 40 ] An incident occurred at Halloween in which the son was disciplined for an incident at his school.

The boy had been sent to the principal’s office for punching a girl during a gym class. As his punishment, the Respondent said that the child would not be allowed to participate in a school Halloween event in which children dressed in costume. The Applicant disagreed with the Respondent’s imposition of this discipline.

She said to the Respondents in an email dated October 29, 2014: “As for Halloween, regardless of what you guys want to do, I disagree with withholding him from Halloween activities and we WILL be dressing our son up for Halloween for school.” [ 41 ] The Applicant attended at the child’s school on Halloween and delivered his costume, notwithstanding the disciplinary decision made by the Respondent.

Things did not go well that day however, because later that evening, when the children were out with the Applicant trick-or-treating, J.R.A.V. became upset and threw a cup of hot chocolate in his sister’s face before running away. The Applicant called the Respondent and J.R.A.V. was returned to the Respondent’s home. [ 42 ] The counsellor that the children see is Becky Schatz, a family therapist who has met with them since September of 2014. In a report written on January 19, 2015, Ms. Schatz reflected the views of the children as provided to her in the counselling sessions.

She writes: M.V.V. and J.R.A.V. both expressed that they felt comfortable with the current custody agreement and appeared to have adjusted to the time spent between households. M.V.V. expressed frustration at not knowing how to respond when her mom makes “nasty comments about my dad and S.V.”. She expressed feeling torn between wanting to defend them, and yet not wanting to cause conflict. On several occasions M.V.V. expressed that she wouldn’t want to spend more days at her mom’s house than she currently was. She expressed feeling overwhelmed at times when she spent too much time at mom’s.

She said she felt just right the way they were. J.R.A.V. expressed confusion about how he felt. It became apparent that the situation was stressing him, and he just wanted the custody hearing to be dealt with… It became apparent that J.R.A.V. didn’t want to hurt anyone’s feelings. Position of the Parties [ 43 ] The Applicant is asking for a shared parenting arrangement in which the children would alternate spending a week in each home. She proposes that this continue throughout the children’s summer holidays and has provided a

schedule in which spring break, Christmas vacation, and Easter would be split between the parties. She would like parenting time on Halloween to alternate each year. She is asking to have the children for the entire Thanksgiving weekend in 2015 and thereafter she would like the weekend to be split. She also wants to have the children in her care during their siblings’ birthdays. [ 44 ] The Applicant recognizes that she and the Respondent often don’t agree on what is best for the children, and she asks that she be given decision making authority for the children as regards the parental responsibilities set out in

section 41 of the Family Law Act .

The Applicant is willing to have an income imputed to her based on the minimum wage if the shared parenting regime is put back in place. However if the children continue to reside primarily with the Respondent, she asks that any order for child support recognize the reality of her situation as a stay-at-home parent without any significant income. [ 45 ] The Respondent seeks an order maintaining the arrangement set out in the order made on September 28, 2010 (as modified on March 21, 2014), except that he is asking for the children to be with the Applicant every second weekend, instead of every weekend.

The Respondent would like to be the “decider” in making decisions pertaining to parental responsibilities under

section 41. He is also seeking an order requiring the Applicant to pay child support based on an income earning ability of $11 per hour and he asks that the order for child support be made retroactive to December of 2013, when an order was made confirming his primary residence of the children. Finally, he is seeking an order that the Applicant share proportionally in the cost of the child’s counselling expense. Applicable Law 1. Best Interests of the Child [ 46 ]

Section 37 of the Family Law Act requires that when a court makes an order respecting guardianship, parenting arrangements or contact with a child, “the court must consider the best interests of the child only.” In determining what is in the best interests of a child, all of the child's needs and circumstances must be considered. Subsection (2) of

section 37 specifically mentions the following factors: (

a) the child's health and emotional well-being; (

b) the child's views, unless it would be inappropriate to consider them; (

c) the nature and strength of the relationships between the child and significant persons in the child's life; (

d) the history of the child's care; (

e) the child's need for stability, given the child's age and stage of development; (

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (

g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being. [ 47 ]

Section 37 goes on to provide, in subsection (4), that “in making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.”

Section 7 Expenses Under the Federal Child Support Guidelines [ 48 ] Under

section 3 of the Federal Child Support Guidelines , there is a presumption that children under the age of majority are entitled to child support as set out in the guidelines as well as any amount that the child may also be entitled to under

section 7 of the Guidelines. (Section 7 pertains to Special and Extraordinary Expenses). However the power of a court to award

section 7 expenses is discretionary and that discretion is to be exercised by taking into account 1. The necessity of the expense in relation to the child’s best interests; and 2. The reasonableness of the expense in relation to (

a) The means of the spouses and those of the child and (

b) The family’s spending pattern prior to the separation. [ 49 ]

Section 7 of the Guidelines allow for sharing the cost of certain classes of listed expenses known as “special expenses” as well as certain “extraordinary expenses” that relate to a child’s education or extracurricular activities. Expenses for a child’s counselling generally fall under section 7(1) (

c) of the Guidelines as health-related expenses. These expenses are normally shared if they are in a child’s best interests and if they are reasonable, having regard to the means of the parties. [ 50 ] Applications for sharing of special expenses may be denied if a parent acts unilaterally in incurring the expense, without consulting with the other parent. An example of this can be seen in Putoto v. Ball 2008 BCSC 431 . In that case, Meiklem J. stated, at paragraph 22: “Fairness is always a relevant consideration on a matter which invokes the discretion of the court - which a

section 7 claim does.”

Analysis 1. Best Interests of the Children [ 51 ] The current situation in which these children are splitting their time between the parties’ homes is having an adverse effect on their emotional well-being and it is not in their best interests. It has made M.V.V. unhappy, especially when she is in the Applicant’s home, and it has resulted in some acting out and other discipline problems on J.R.A.V.’s part.

M.V.V. feels uncomfortable in the Applicant’s home, in part because the Applicant has shown poor judgement in not shielding the children from details of the parties’ court battle, and in part because of her past conflicts with the Applicant’s husband.

The Applicant portrays the dysfunction which has gone on inside her home as minor in nature, but I believe that she is not giving the incidents involving the past criminal charges their proper significance. [ 52 ] The risks which the Applicant’s husband presented for the minor child who was in the vehicle with him on his last drinking and driving exploit were very serious. It is troubling that the Applicant believes that her husband’s drinking issues are in his past and that his present occasional alcohol consumption is nothing to worry about. This attitude is akin to waving a red flag under a bull’s nose.

It is courting disaster. The number of arrests, convictions and peace bonds in the Applicant’s home is abnormal and deserves greater concern that the Applicant is showing. All of this also raises concerns about the accuracy of the Applicant’s perceptions when she minimizes M.V.V.’s discomfort around J.H. when he is drinking and when she places the blame on the child for feeling that way. [ 53 ] The inconsistency of rules and disciplinary sanctions is also an unhealthy situation for the children’s welfare and therefore not in their best interests.

The Applicant’s undermining of the Respondent’s discipline of J.R.A.V. in response to the Halloween incident at school is troubling and it illustrates the need for one clear set of rules that the children must be guided by. The Applicant’s idea that she can unilaterally decide how a holiday will be split or other incidents of indifference to the terms of the existing court order also call her judgement into question. [ 54 ] The children's views appear to be consistently expressed in their recent interviews with the family justice counsellor and with Ms. Schatz.

M.V.V. would be very unhappy if ordered to spend more time in the Applicant’s home. She is also very uncomfortable being caught in the middle of parental conflict, and she feels more sheltered from it when she is away from the Applicant. J.R.A.V. is more flexible, and he would simply like to see everyone getting along better. [ 55 ] The relationships between the children and their parents’ new partners appear to differ in the parties respective homes. The evidence suggests that M.V.V. has a good relationship with the Respondent’s wife S.V., but that she is uncomfortable around the Applicant’s husband J.H.

The evidence also suggests that M.V.V. is listened to more in the Respondent’s home, while the Applicant’s email and text messages suggest that the Applicant tends to see M.V.V. as the cause of any discomfort that the child has in her home, without any reflection on whether part of the problem may be caused by her husband’s behaviour.

A strong example of this can be seen in the Applicant’s text message response when she was informed about M.V.V. being hit by J.H. in the fall of 2013. [ 56 ] It should also be noted that these children’s siblings, namely their older brother N--- and the children of the Applicant and J.H. are also significant persons in the children's lives, and the parties should do their utmost to nurture those relationships. [ 57 ] During their lives, these children have been cared for by both parents in differing amounts at different times. Both of the parties are capable care-givers to the children.

Their differences present most clearly not in how they meet the children’s physical needs, but in how they meet the children’s emotional needs. [ 58 ] The need for stability in the children’s lives is important at this stage in their lives. It is important so that the stresses they are experiencing can be alleviated and so that they can be allowed to be kids instead of objects that their parents are fighting over in family court.

It is important for them to have a firm understanding of what rules they are expected to follow and that any opportunity for them to manipulate their situation by taking advantage of the different disciplinary standards in the two homes is removed. One parent must be given the power to decide what rules of conduct the children are to follow.

The other parent must act in the children’s best interests by supporting the rules set for the children and not undermine those rules or allow the children to take advantage of inconsistencies that exist in the two homes. [ 59 ] The Family Law Act requires me to consider the impact of any family violence on the children's safety, security or well-being, whether the family violence is directed toward the child or another family member.

While the full extent of the incidents in which the Applicant and her husband have each been charged with separate counts of assault have not been fully uncovered, the numerous incidents of police involvement and of problems in the home caused by alcohol are of concern. The fact that the Applicant’s husband feels that he has his drinking under control now runs contrary to the experience of most persons whose problems with alcohol get them into trouble with the criminal law. The fact that the past problems he has had with alcohol have not led him to conclude that he is better off without it is a concern.

Under these circumstances, it is difficult to understand how increased time for the children in this environment is in their best interests. [ 60 ] The email and text message correspondence presented at trial have led me to conclude that this is not an ideal situation for requiring the children's guardians to cooperate on issues affecting the children.

Strong wills, intemperate remarks, an inability on the Applicant’s part to shelter the children from the negative effects of this litigation as well as her tendency towards unilateral action leads me to believe that if the parties were asked to cooperate, decisions would be forged on the force of personality rather than a genuine give and take. The evidence in this matter convinces me of the need for decision making to rest with one party. 2. Guardianship [ 61 ] Section 39 (1) of the Family Law Act makes each of these parties the guardian of these children.

While guardianship can be terminated under section 51 (1) (

b) of the Act if it is in a child’s best interests, nothing in the evidence suggests that this is an appropriate case for doing so. Both of the parties have demonstrated a desire and a willingness to become more involved in the lives of the children and neither has done anything deserving of removal as a guardian. The final order in this matter will acknowledge and recognize this.

3. Parenting Responsibilities [ 62 ] I find that the parties are unable to work collaboratively in the children’s best interests at this time. The Respondent has been more deferential to the orders of this court, while the Applicant has shown herself to be more autocratic, less cooperative and more combative. While there has been snarkiness on both sides, the Applicant has been more disrespectful and offensive in her communications. She has been less willing to objectively look at what is taking place in her home. The Respondent has been more willing to admit when he has been wrong and to compromise.

A sharing of parental responsibilities is unlikely to work in this situation. As was stated earlier in these reasons, the best interests of the children require that there be one “decider” and that the other parent support those decisions taken by that “decider” and not undermine them. [ 63 ] I find it to be in the best interests of these children that an order be made giving the Respondent all of the parental responsibilities listed in

section 41 of the Family Law Act, except under subsection (j). That subsection will be shared so that both parties shall be entitled to request and receive information about the child’s education or health from third parties. 4. Parenting Time [ 64 ] In order for the children to settle into a set of rules and a routine that can best meet their needs, and especially address the concerns about their emotional welfare, an order will be made which will place them in the care of the Respondent for the majority of the time. The terms of the order will be spelled out more precisely at the conclusion of these reasons.

It will be largely modelled after the order requested by counsel for the Respondent. 5. Child Support [ 65 ] The Federal Child Support Guidelines presume, in

section 3, that parents who are required to pay child support for their children will do so based on the amount set out in the applicable table to the guidelines. Based on those tables, and based on the income which the Applicant has reported in her financial statements filed in this matter, she would not be obliged to contribute to the support of these children.

Her annual income for the years that she has reported falls below the minimum amount listed on the tables. [ 66 ] A court may depart from the presumptive practice of basing a child support order on a payer parent’s income if it is found that this is not the fairest way of determining what that parent’s income is. Income can be based on a pattern of income (under

section 17 of the Guidelines) or income can be imputed under

section 19 of the Guidelines if the court concludes that the parent has been intentionally under-employing himself or herself. [ 67 ] In this case I am aware that there may be residual resentment over the fact that the Applicant was aggressive in her pursuit of child support from the Respondent when the children resided primarily with her.

However it is not in the children’s best interests to see applications for child support used as an opportunity for payback, and while I am not concluding that this is what is happening here, I merely wish to remind the parties that the children have said, when having their voice heard, that they feel hurt by the parties ongoing conflicts and it is not in their best interests to fight legal issues merely for the sake of fighting. [ 68 ] The evidence does not satisfy me that there is any basis for concluding that the Applicant is intentionally under-employing herself.

It must be remembered that she has small children at home that require her attention. It must also be remembered that her husband has jeopardized the family’s economic stability by abusing and losing his driving privileges, requiring the Applicant to serve at his chauffeur at times when she could otherwise be occupied. I am unable to conclude that there is any basis for imputing any income to the Applicant other than what she has declared.

I will however require her to make annual disclosure of her income so that if there is a change in her circumstances, the Respondent can apply for an order for child support, reflective of the right of these children to be supported by the parents who brought them into the world in the lawfully mandated proportion to that parent’s income or income earning ability. 6. Special Expenses for Counselling [ 69 ] I have no difficulty in concluding that the counselling which the Respondent has obtained for the children is in their best interests and is necessary and reasonable for their continued well-being.

I also find, from a review of the email correspondence between the parties that there has been some consultation between the parties about the children receiving counselling, and while the Applicant did not specifically approve of the counsellor selected, I would not uses this as the basis for disallowing an order for the sharing of this expense between the parties.

In light of the state of communications existing at the time the children went into counselling, I doubt that the Applicant would have agreed with any counsellor suggested by the Respondent. [ 70 ] The reason for my refusal to order a sharing of this expense has to do with the means of the parties. I realize from the evidence that money has been tight in both households. The Applicant’s current income is below the minimum level listed on the guidelines.

Her income earning ability is hampered by having two small children in the house and a husband who requires her services as driver, adversely affecting her ability to find work outside the home. I am unable to conclude that she has the means at this time to aid in the cost of counselling, however necessary it may be. [ 71 ] Despite the financial burden that this places on the Respondent, I hope that this will not discourage him from continuing with the children’s counselling.

The children need a capable and understanding professional to help them deal with their being in the middle of this conflict, and it is money well spent. Order [ 72 ] For the foregoing reasons it is ordered as follows: 1) Pursuant to section 39(1) of the Family Law Act (hereinafter referred to as the “Act”), the Respondent H.B.V. and the Applicant V.B.H. are the guardians of the children M.V.V. (born d.o.b., 2002) and J.R.A.V. (born d.o.b., 2004).

2) The Respondent shall have all of the parental responsibilities listed in the following subsections of

section 41 of the Act: (

a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child; (

b) making decisions respecting where the child will reside; (

c) making decisions respecting with whom the child will live and associate; (

d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location; (

e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity; (

f) subject to

section 17 of the Infants Act, giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child; (

g) applying for a passport, licence, permit, benefit, privilege or other thing for the child; (

h) giving, refusing or withdrawing consent for the child, if consent is required; (

i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive; (

j) subject to any applicable provincial legislation, (

i) starting, defending, compromising or settling any proceeding relating to the child, and (ii) identifying, advancing and protecting the child's legal and financial interests; (

k) exercising any other responsibilities reasonably necessary to nurture the child's development. 3) The Respondent and the Applicant shall share the parental responsibility listed under subsection 41 (

j) of the Act, such that both shall be entitled to request and receive information about the child’s education or health from third parties. 4) The Applicant shall have parenting time with the children pursuant to

section 42 of the Act at the following times:

a) Every second weekend commencing on Friday after school (or at 12:00 noon if Friday is not a school day) until the children are returned to school on Monday morning (or until Monday at 12:00 noon if Monday is not a school day) commencing on the weekend of February 27, 2015;

b) Every Wednesday from after school (or from 12:00 noon if Wednesday is not a school day) until 7:00 p.m.

c) Notwithstanding

a) and

b) above, during the children’s summer school vacation, for alternating full weeks commencing on the Friday of what would otherwise be her parenting time under

a) at 2:30 p.m. until the following Friday at 2:30 p.m.;

d) The rotation in

a) shall be suspended for the Thanksgiving weekend each year and the children shall be in the Applicant’s care for the entire Thanksgiving weekend in odd numbered years from Friday after school until the children return to school on the following Tuesday morning (provided that in even numbered years, the children shall be in the Respondent’s care for the entire Thanksgiving weekend);

e) Regardless of what day of the week it falls on, the children shall be in the Respondent’s care on October 31st from 2:00 p.m. to 9:00 p.m. in odd numbered years, and in the Applicant’s care on October 31st during that time in even numbered years;

f) During the children’s school Christmas break, the rotation set out in

a) shall be suspended and in odd numbered years the children shall be in the Respondent’s care for the first week (i.e. from the Friday that either is or follows the last day of school prior to the break until the next Friday at 7:00 p.m.) and in the Applicant’s care from the last mentioned Friday at 7:00 p.m. until the following Friday at 7:00 p.m. In even numbered years, the children shall be in the Applicant’s care during the same week that they would be in the Respondent’s care in odd-numbered years;

g) During the Easter weekend, the rotation set out in

a) shall be suspended. The children shall be in the Applicant’s care in even numbered years on the Easter Weekend from Holy Thursday (the Thursday before Easter) after school until the following Tuesday morning, when she shall take them to school. In odd numbered years the children shall spend the Easter weekend in the Respondent’s care;

h) For the children’s spring break the rotation set out in

a) shall be suspended, and the children shall be in the Applicant’s care for the first full week of the spring break (from the Friday after school prior to the break until the following Friday at 7:00 p.m.), and thereafter they shall be in the Respondent’s care for the remainder of the spring break. The foregoing presumes a two week school spring break as presently exists in the Abbotsford school system. If the children’s spring break is shortened, the break shall be divided in half with the children being in the Applicant’s care for the first half of the break;

i) Notwithstanding what day of the week the following days fall on, the children shall be in the Applicant’s care from the earlier of 2:30 p.m. or the end of their school day, until 7:30 p.m. on the birthdays of their siblings, namely on ---- of each year (the birthday of Ma- --), on --- of each year (the birthday of N---) and on --- of each year (the birthday of M---);

j) At such other times as consented to by the Respondent. 5) The Respondent’s application for child support is dismissed, but he may reapply in the event of a change in the Applicant’s financial circumstances. The Applicant shall serve on the Respondent and file with this court a financial statement in Form 4 together with all required attachments each year on or before May 15th. 6) The Respondent’s application for an order requiring the Applicant to share in the cost of the children’s counselling expenses is dismissed, but he may reapply in the event of a change in the Applicant’s circumstances.

Dated at the City of Abbotsford, in the Province of British Columbia, this 26th day of February, 2015. ________________________________________ (The Honourable Judge K. D. Skilnick)