S. v. W. Date:, 2014 BCPC 177

Citation: S. v. W. Date: 20140626 2014 BCPC 0177 File No: 122075 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.S. APPLICANT AND: P.W. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MERRICK Appearing on their own behalf: S. S. Counsel for the Respondent: J. W. Place of Hearing: Sechelt , B.C.

Dates of Hearing: April 30, May 28, 2014 Date of Judgment: June 26, 2014 [ 1 ] THE COURT: S.J.S. is the six-year-old son of P.W. and S.S.. C.E.W. is the 16-year-old daughter of P.W. Mr. S. is her stepparent. Ms. W. and Mr. S. started living together in 2000. They do not agree on their separation date. They resumed living together in 2002. In the summer of 2011, the parties separated again. [ 2 ] Both S. and C. lived with Mr. S. when the parties separated. In February 2012, C. stopped living with Mr. S. and started living at a friend's house. In September 2012, C. moved back with Ms.

W. [ 3 ] When the parties separated, Ms. W. moved to Delta. Ms. W. did not have much parenting time with S. In fact, Ms. W. did not see S. from Christmas 2011 to April 2012. [ 4 ] On June 12, 2012, the parties consented to a final order granting them joint custody and guardianship of S. They also agreed S.'s primary residence would be with Mr. S. and that Ms. W. would have reasonable and generous access. [ 5 ] In September 2012, Ms. W. returned to the Sunshine Coast, and in November 2012, Ms. W.'s parenting time was specified, Sundays at 10:00 a.m. to Tuesday morning. In November 2013, Ms.

W.'s parenting time increased to three days a week. Commencing January 5, 2014, Ms. W. and Mr. S. started a shared parenting regime, with Ms. W.'s parenting time being from Sundays at 3:30 p.m. to Thursdays at 8:15 a.m., and Mr. S.' parenting time being from Thursdays at 8:15 to Sundays at 3:30 p.m. [ 6 ] In November 2013, Mr. S. started a retraining program. That program required Mr. S. to be in Kelowna in the first part of 2014. At the conclusion of the training program, Mr. S. found work in Edson, Alberta. [ 7 ] On February 20, 2014, Mr. S. provided Ms.

W. written notice of his intention to move to Edson with S. On February 25, 2014, Ms. W. filed an application seeking an order prohibiting relocation. On February 27, 2014, a court order was pronounced preventing either party from moving S. from the Sunshine Coast. [ 8 ] On March 3, 2014, Mr. S. started work in Edson, Alberta. He moved there with his fiancée and their daughter, M. who was born in July 2012. [ 9 ] The issues to be determined by the court are as follows:

(1) Should the relocation be prohibited?

(2) What is appropriate child support for the children?

(3) What, if any, spousal support is payable by Mr. S. to Ms. W.? Should the relocation be prohibited? [ 10 ] I must first determine whether or not the parties have substantially equal parenting time. Mr. S. submits they do not. He says that it was only recently that the parties commenced a shared parenting routine and, in any event, for most of Ms. W.'s parenting time, S. is in school. With respect, I disagree. [ 11 ] The parties agreed to an order on January 28, 2014, which confirmed that a shared parenting arrangement started January 5, 2014.

It is my judgment that there is no reason to exclude from this analysis the time S. is at school. [ 12 ] The court ought not to engage in a minute-by-minute analysis of the actual time a parent spends with a child. What is important is the fact that, with a shared parenting arrangement, both parents play a significant role in the child's day-to-day life. Actual time in this case is not a factor. [ 13 ] Having determined that the parties have substantially equal parenting time, I must consider s. 69 of the Family Law Act , S.B.C. 2011, c. 25. The onus is on Mr.

S. to establish that the proposed relocation is made in good faith, that he has proposed reasonable and workable arrangements to preserve the relationship between S. and Ms. W., and that the relocation is in S.'s best interests. [ 14 ] The good faith provision is included in an effort to prohibit a move from occurring where the underlying reason is to undermine or limit the child's relationship with the other parent: see Family Law Act Transition Guide, CLEBC, August 2012, s. 69 commentary, page 3-101. [ 15 ] Based on Mr.

S.' testimony, I am of the view he made little if no effort to find work in British Columbia. He has made assumptions about the differences in the cost of living between Edson, Alberta, and the Lower Mainland in British Columbia, without providing evidence to support those assumptions. That said, Mr. S. completed his training program and was immediately able to find employment in Edson, Alberta. It is a good opportunity for him. He provided notice of his intention to relocate, and there are no agreements or orders that restrict relocation.

I am also satisfied that the opportunities for S. in Edson, Alberta, are as good as those available to S. on the Sunshine Coast. [ 16 ] While Mr. S. could have done more to find work in British Columbia, I am satisfied that the underlying reasons for the move are not to limit or undermine S.'s relationship with his mother. I am satisfied that Mr. S.' relocation is in good faith. [ 17 ] The next issue is whether or not Mr. S. has proposed reasonable and workable arrangements to preserve the relationship between S. and Ms. W. Mr. S. has proposed an extensive parenting plan as follows:

[ 18 ] Summer: S. will spend two consecutive weeks with Ms. W. in the months of July and August. For 2014, Mr.

S. proposes the following periods: July 6 to 20 and August 9 to 23. [ 19 ] Christmas break: S. will spend one-half of each Christmas break with his parents, the dates to be negotiated between the parties each year by September 30th, with S. spending Christmas day with his mother in odd years and his father in even years. [ 20 ] Spring break: S. will spend one week of spring break with each of his parents; the parents to decide between them which week S. will be with which parent by January 31st each year. [ 21 ] Monthly visits: S. will spend one three- or four-day weekend with Ms.

W. in each of the remaining eight months of the year -- January, February, April, May, June, September, October, and November -- the weekend to coincide wherever possible with a professional development day or a statutory holiday, so as to minimize the times that S. will miss time from school. [ 22 ] Mr. S. estimates the travel costs for his parenting time plan at $10,800 per year. He expects his gross income to be $52,000. Ms. W. expects her income to be about $10,000. [ 23 ] Mr. S. testified he has significant debt. He has filed for bankruptcy once and is hoping not to have to again.

His financial statement shows that his expenses far exceed his income. In order to reduce costs, Mr. S., his fiancée, and daughter were staying with family in Edson. [ 24 ] Mr. S.' proposed parenting time plan for S. and Ms. W. far exceed not only Mr. S.' financial resources, but those of both he and Ms. W.. To illustrate, Mr. S.' expected net income is approximately $39,500. The anticipated cost of his parenting time plan is $10,800, leaving a balance of $28,700. [ 25 ] Mr. S.' financial statement filed April 8, 2014, lists the following expenses: food, $9,000; gas, 15,600; car loan, 12,360; telephone, 3,200.

Those expenses total $40,760. Mr. S.' financial statement also discloses yearly rent at $9,600. [ 26 ] I do not accept that Mr. S. can follow through on his parenting plan, despite his testimony that he will. He simply does not have the money to fund such a plan. [ 27 ] I am also concerned with Mr. S.' view that Ms. W. abandoned S. when the parties separated. Ms. W. alleges she left the relationship because of family violence, and that Mr. S. then limited her parenting time.

I cannot resolve that conflict in the evidence. [ 28 ] It is in S.'s best interests to have a meaningful relationship with both parents. [ 29 ] Given Mr. S.' view regarding Ms. W. abandoning S., and my judgment that that has not been established by the evidence, and the parties' financial situation, I think it is very unlikely that S. would see Ms. W. with any regularity, or at all, if S. relocates. [ 30 ] It is my judgment that Mr. S. has not put forth a reasonable and workable arrangement to preserve the relationship between S. and Ms. W. S.'s Best Interests [ 31 ] Mr.

S.' failure to demonstrate a reasonable and workable arrangement to preserve the relationship between S. and Ms. W. also leads me to conclude that the relocation is not in S.'s best interests. While I agree that the opportunities for S. in Edson, Alberta, are as good as those available to him on the Sunshine Coast, they are not so much better that they outweigh the need to preserve S.'s relationship with Ms. W.. It is not in S.'s best interest to relocate. [ 32 ] Accordingly, I am granting Ms. W.'s application. S. is not allowed to relocate. Child support [ 33 ] During the court appearance on May 28, 2014, Mr.

S. told the court he is living in Barriere, B.C., and travelling to Edson, Alberta, for work. Accordingly, I find he is a resident of British Columbia for the purposes of the Child Support Guidelines . [ 34 ] Mr. S. objects to paying child support for C.

He submits that since he is a stepparent, child support is C.'s biological father's responsibility. [ 35 ] Section 147(4) of the Family Law Act provides that a stepparent has an obligation to support a stepchild, if the stepparent contributed to the support of the child for at least one year and a proceeding for child support was commenced within one year after the date the stepparent last contributed to the support of the child. [ 36 ] In this case, C. resided with Mr. S. from 2002 until February 2012, and an application seeking child support was filed in April 2012. Accordingly, Mr.

S. has a duty to provide support for C. [ 37 ] While I appreciate Mr. S.' duty is secondary to that of C.'s biological father, currently Ms. W. is not receiving child support from C.'s father, despite the existence of a court order requiring the payment of child support. [ 38 ] C. was born May 22, 1998. The parties started living together in 2000, separated, and resumed living together in 2002. When the parties separated in the summer of 2011, C. resided with Mr. S. until February 2012. Mr.

S. provided a standard of living to C. during the time the parties lived together that was materially higher than which C.'s parents can provide. Moreover, C.'s father is not paying the child support as ordered. [ 39 ] Accordingly, it is my judgment that Mr. S. should pay the full table amount of child support for two children. Therefore, upon determining that Mr. S. is a resident of British Columbia for the purposes of the Child Support Guidelines , and having a Guideline

income of $52,000, he shall pay to Ms. W. the sum of $788 per month, payable at the rate of $394 on the 1st and 15th, and continuing each 1st and 15th of the month thereafter, for the maintenance and support of the children, S. James Symes, born August 23, 2007, and C.E.P.W., born May 22, 1998, commencing July 1st and July 15th, 2014. Spousal support [ 40 ] A duty to provide spousal support exists only where an entitlement to spousal support exists, taking into consideration the objectives of spousal support as set out in s. 161 of the Family Law Act . [ 41 ] I accept Ms.

W.'s evidence that it was a joint decision of the parties that she not work outside the home and care for the children while the parties lived together. [ 42 ] Ms. W. testified that after separation, she had work that provided her almost full-time hours, but she had to quit because she kept getting sick. Ms. W. also testified she was fired from her last job because of the number of days she missed work because of illness and court. [ 43 ] Ms. W. testified she has a serious thyroid condition. Ms. W. has recently started a medical lab assistant's course. Since separation, Ms.

W. has had a lower standard of living than the parties had when they lived together. That said, Ms. W. has a duty to become self-sufficient within a reasonable time and the parties separated almost three years ago. [ 44 ] I am satisfied, however, that Ms. W. has established an entitlement to spousal support for the following reasons:

(1) Ms. W. did not work outside of the home and cared for the children while the parties lived together.

(2) Ms. W. has attempted to find employment, but has been unable to work because of medical reasons.

(3) Ms. W. has started a training program in a field in which it is expected her health concerns will not be an issue. [ 45 ] Ms. W.'s counsel submitted that the Spousal Support Advisory Guidelines suggest the range of spousal support in this case to be between $197 and $482 per month. However, Mr. S. has limited financial resources and he will incur costs in exercising parenting time with S. [ 46 ] I am giving priority to Mr. S.' duty to pay child support. It is my judgment that, based on Mr. S.' limited financial resources, the costs he will incur in exercising parenting time with S., and Mr.

S.' debt level, I am unable to make an order respecting spousal support. It is my judgment that he does not have the ability to pay spousal support. [ 47 ] In accordance with s. 173(3) (

b) of the Family Law Act , if the child support in this case is subsequently reduced or terminated, the reduction or termination is a change in circumstances that would allow the court to review what amount, if any, of spousal support is payable. At this time, I decline to make an order for spousal support. [ 48 ] MS. W.: Thank you, Your Honour. [ 49 ] THE COURT: So Mr. -- well, I guess to Mr. S. and Ms. W., what about S. now seeing his father? I mean, I appreciate that the existing order remains in effect, but Mr.

S., any comment about you seeing S. or what you . . . [SUBMISSIONS RE PARENTING TIME AT 3:50:01- 4:12:20 P.M.] [ 50 ] THE COURT: Well, I am going to say it is from Friday, June 27th at 11:30, when the scheduled 10:50 sailing from Langdale to Horseshoe Bay is expected to arrive, returning on the scheduled 3:25 sailing from -- no, pardon me, the scheduled -- it has actually got to be 4:30, because there is not -- the scheduled 4:30 sailing from Horseshoe Bay to Langdale. [ 51 ] S. S.: Yes. [ 52 ] THE COURT: And then when can there be a second? [ 53 ] MS.

W.: On which date is that, Your Honour? [ 54 ] THE COURT: On June 30th, and then when can there be a second period of parenting time? [ 55 ] P.W.: Two weeks later, yeah, the 11th or the -- I mean the 10th or the 17th. [ 56 ] THE COURT: Okay, and sir, do you have a preference in terms of the next time, whether it is the 10th or the 17th? [ 57 ] S.

S.: The 17th. [ 58 ] THE COURT: Yes, then it will be the same times, June -- July 17th at 11:30, returning -- you know, it might be easier if it was Monday rather than the Sunday in July. [ 59 ] P.W.: Works for me. [ 60 ] THE COURT: Returning Monday, July 21st, on the 4:30 sailing. [ 61 ] S. S.: [Indiscernible/teleconference] [ 62 ] THE COURT: And then a review of --

[ 63 ] THE CLERK: Is Mr. S. taking the ferry to Langford or is she [inaudible] -- [ 64 ] MS. W.: She generally takes -- [ 65 ] P.W.: I meet -- [ 66 ] MS. W.: -- she walks over. [ 67 ] THE COURT: Okay, and the parenting -- thank you, the parenting exchanges are to occur at the Horseshoe Bay ferry terminal. [ 68 ] S. S.: Okay. [ 69 ] THE COURT: Then a review on July 30th or 31st. Do you have a preference? Then Mr. S., July 30th or 31st? [ 70 ] S. S.: Wednesday the 30th. [ 71 ] THE COURT: Are you appearing in person? [ 72 ] S.

S.: Do I need to, Your Honour, to appear? [ 73 ] THE COURT: What is the closest courthouse to where you are? [ 74 ] S. S.: Kamloops. [ 75 ] THE COURT: I am going to -- I do not think this phone appearance will work properly. [ 76 ] S. S.: Yes. [ 77 ] THE COURT: Hello? [ 78 ] S. S.: Yes. [ 79 ] THE COURT: So I am going to direct that the registry see if you can appear by videoconferencing from Kamloops on July 30th. [ 80 ] S. S.: I'm just writing it down, Your Honour.

July 30th, videoconference at what time, Your Honour? [ 81 ] THE COURT: You will have to be in contact with the registry, because to some extent they have -- it is based on when there is video time available from Kamloops. [ 82 ] S. S.: Okay. [ 83 ] THE COURT: I am ordering that, based on Mr. S.’ financial situation, he does not have the ability to pay videoconferencing costs, and any fees associated with the videoconferencing are hereby waived. (REASONS CONCLUDED)