M.M. v. T.M., 2021 BCPC 261

Citation: M.M. v. T.M. 2021 BCPC 261 Date: 20211029 File Nos: F10129, F10293 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Family Court IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 File #F10129 BETWEEN: M. M. APPLICANT AND: T. M. RESPONDENT AND File #F10293 BETWEEN: J. F. APPLICANT AND: M. M. and T. M. RESPONDENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P.L. JANZEN Applicant/Respondent Appearing in Person: M. M., by Telecommunication Counsel for the Respondent T. M. S. Jones, by Telecommunication Applicant Appearing in Person: J.

F., by Telecommunication Place of Hearing: North Vancouver, B.C. Dates of Hearing: October 25, 2021 Date of Judgment: October 29, 2021

[ 1 ] J. F. applied for contact with the children of T. M. and M. M. under

section 59 of the Family Law Act (“ FLA ”). [ 2 ] T. M. applied to dismiss J. F.’s application for contact on the basis that he has no standing to bring his application for contact because J. F. and M. M. live together as partners. [ 3 ] In the alternative and in addition to defending the status of his application for contact, J. F. made an oral application for intervenor status in the application that M. M. has brought to vary earlier parenting time orders. [ 4 ] J. F. is currently the partner of M. M. and has been her partner for a number of years. Existing court orders address the

schedule and conditions of the parenting time of the parents. A condition of M. M.’s parenting time is that J. F. is not to be present during her parenting time. M. M. has applied to vary the terms of the existing parenting time orders. No trial dates have yet been set. In September, 2021 the child of M. M. and J. F. was born. [ 5 ] T. M. argues that J. F. has no standing to bring an application for contact because he and M. M. continue to live together. In the usual circumstances, the partner of a guardian enjoys contact with a child during the guardian’s parenting time.

A court’s decision about parenting time must be based on the best interests of the child only. The nature and strength of the relationships between the child and significant persons in the child’s life is an enumerated factor in

section 37 of the FLA that sets out the test for determining the best interests of the child. Hence, the child’s relationship with a guardian’s partner can and usually will be considered in a parenting time application. T. M. argues that J. F.‘s application is redundant because a determination of the issue of M. M.’s parenting time will determine the issue of J. F.’s contact time. [ 6 ] J. F. defends his application on the basis that his interests, particularly in the unusual circumstances of this case, need to be properly, and separately, taken into account and addressed.

He points out that the terms of any parenting time order will have a significant impact on his interests. As matters stand now, he is unable to be with his family, both his partner and his baby daughter, during M. M.’s parenting time with the children and he must find a separate residence. [ 7 ] In the alternative, if his application for contact is dismissed as a result of T. M.’s application, he applies for intervenor status in M. M.’s application for parenting time on the basis that any order that is made in the case between M. M. and T. M. will affect his interests. [ 8 ] I will deal first with J.

F.’s oral application for intervenor status. It is based on J. F.’s argument that it is important to consider J. F.’s interests when determining whether M. M.’s application to vary the parenting time order should succeed. [ 9 ] The interests of third parties are not a proper consideration for a court when it decides upon a parenting time arrangement. In fact, the interests of the parents are not a proper consideration for the court.

The court is explicitly directed by section 37(1) of the FLA as follows: “In making an agreement or order under this part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only .” [Emphasis added] [ 10 ] As a result, I consider it to be inappropriate to grant intervenor status to J. F. because a consideration of his interests would be improper in an adjudication of the guardians’ parenting arrangements. The parenting time adjudication between and T.

M. must necessarily focus exclusively on the best interests of the children. [ 11 ] I will turn next to T. M.’s application to dismiss J. F.’s application for contact with the children. Again, the basis for J. F.’s application for contact is to advance his interests as separate from the interests of his partner, M. M. Whether an application is for parenting time or contact, the interests of a person seeking contact are not a proper consideration for the court. The court must only consider whether contact time with J. F. is in the best interests of the children. [ 12 ] In

section 1 of the FLA “contact with a child” is defined to mean “contact between a child and a person, other than the child’s guardian”. This definition states explicitly that contact is with those who are not guardians and strongly suggests that it is not intended to apply during a guardian’s parenting time. It is the guardians who decide the other persons with whom their children spend time during their parenting time unless, as in the case of the current court orders, to do so would breach a court order. For as long as M. M. and J.

F. are partners and living together, his contact with the children will be encompassed within the terms of the parenting time order between the guardians. [ 13 ] I also note that Section 45(2) of the FLA makes clear that “an order [about parenting time] must not be made if the child’s guardians are the child’s parents and are not separated”. It follows and only makes sense that an order for contact should also not be made if a parent with parenting time is not separated from a new partner.

As a practical matter, it is inconceivable that a court would ever become involved in managing how a parent and a new partner of the parent who are living together would allocate their time with the children. J. F.’s contact, if any, will necessarily take place during and be part of M. M.’s parenting time for as long as they remain partners and live together. [ 14 ] In the absence of explicit authority to support that he has standing to bring this application for contact while he continues to be a partner of a guardian, I am dismissing J.

F.’s application for contact on the basis that he does not have standing under the legislation to bring it. [ 15 ] An additional concern is that the reason why J. F. has made a separate application for contact is to insure that his interests are considered, protected and advanced. J. F.’s interests are not to be taken into account when the court considers whether to grant contact with the children to him. That is because the court is directed by

section 37 of the FLA to take into account the best interests of the children, and only the best interests of the children, when making such an order. For the court to consider J. F.’s interests as a factor in his application for contact, as he urges, would be to fail to properly exercise the court’s jurisdiction under the legislation. [ 16 ] In

summary, T. M.’s application is allowed. J. F.’s application for contact with the children is dismissed. J. F.’s application for

intervenor status in M. M.’s parenting time application is also dismissed. _____________________________ The Honourable Judge P.L. Janzen Provincial Court of British Columbia