M.S. v. R.C. Date:, 2015 BCPC 407

Citation: M.S. v. R.C. Date: 20150916 2015 BCPC 0407 File No: 12611 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: M.S. APPLICANT AND: R.C. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.J. BROWN Counsel for the Applicant: A. Florescu

Counsel for the Respondent: D. Pedersen Place of Hearing: Chilliwack , B.C. Dates of Hearing: January 16, February 4,5, April 7, May 26, August 7, 2015 Date of Judgment: September 16, 2015 [ 1 ] THE COURT : These are my reasons for judgment in the file of M.S. v. R.C., file F12611. [ 2 ] By way of introduction, M.S. and R.C. had a four or five-year marriage-like relationship ending in December of 2012. There is one child of their relationship, J.S., who was born on [omitted for publication], and he is five years old.

R.C. also acted as a stepparent to M.S.'s older child, O.S., who was born on [omitted for publication], and is now nine years old. P.K. is O.S.'s natural father. He appeared briefly in these proceedings but has not chosen to participate fully. [ 3 ] Judge Cohen made an order in this matter on July 10th, 2013, which was followed by a filed agreement dated August 30th, 2015. R.C. was granted parenting time with J.S. every Wednesday overnight, every second Monday overnight, and every second weekend, Friday to Monday morning.

A protection order was varied to allow email contact with conditions, and a series of other orders were made. [ 4 ] Judge Cohen's July 10th, 2013 order provided that R.C. would have contact with O.S.at the same time as he had parenting time with J.S. [ 5 ] M.S. has sole guardianship of O.S.by way of an order originally from Richmond Provincial Court granted December 20th, 2007. P.K. was the respondent in those proceedings and he has full awareness of these current proceedings and has been served. [ 6 ] The father, R.C., now seeks guardianship of O.S. and greater parenting time with both children.

The mother, M.S., seeks to reduce R.C.'s parenting time with J.S. and contact time with O.S. CASE FOR THE MOTHER, M.S.: T.T. [ 7 ] T.T. owns and works at a group day-care which takes children from zero to six years of age. She is also involved in an Aboriginal child and youth mental health program which offers services and resources to Aboriginal children suspected of having mental health issues. [ 8 ] O.S. began coming to the day-care at two years of age but he is now too old for that day-care.

J.S. continues to attend the day- care and he started there sometime after he was six months old. [ 9 ] M.S. has expressed to T.T. concerns she had for O.S., especially about building his Aboriginal identity. T.T. recommended the "Core Directions for Life" program, which targeted First Nations children and helped them to understand their culture, build relationships, and regulate their own behaviour. [ 10 ] R.C. often brought O.S. to this program, however, in November 2014, R.C. told T.T. that O.S. was not Native and he should not be at the program. R.C. also stated that P.K. was "just a sperm donor".

Fortunately, these remarks were not said in front of O.S. [ 11 ] In terms of the day-care itself, M.S. brought O.S. to the day-care more often that R.C., but R.C. was involved with pick-ups and drop-offs when J.S. was born, and when M.S. was in school. [ 12 ] In the last eight months prior to February of 2015, T.T. noticed that J.S. had become more aggressive at the day-care and he even punched other children on several occasions. She did not know the cause of this behavioural change, but she noted that both children in the past said they played video war games.

M.S. reported that she had no such video games, but R.C. said he did let the children play video games. [ 13 ] T.T. did attend a school meeting. She would support O.S.'s learning. She learned from Dr. Pleydell-Pearce that O.S. was suffering from anxiety and "emotional turmoil" and he needed a stable environment. This is hearsay, but I am nevertheless attaching some weight to these concerns, as I do have Dr. Pleydell-Pearce's reports themselves. [ 14 ] M.S. has also reported that O.S. is banging his head and trying to cut his arms.

O.S. is enrolled with Aboriginal Child and Youth Mental Health to address these concerns. [ 15 ] T.T. admitted that M.S. does work at her day-care and they have an employment relationship, however, she said M.S. is good at asking for help parenting. R.C., on the other hand, did not even want J.S. at day-care, and he said mental health issues run in M.S.'s family. He did discuss J.S. not meeting certain milestones.

T.T. preferred day-care for the children over programs such as Strong Start which were more time limited. [ 16 ] In cross-examination, T.T. stated that she was troubled that M.S. and R.C. were arguing at the day-care. She also felt that R.C. did not care for O.S. to the same degree he did J.S. M.S. [ 17 ] M.S. is 26 years of age and she is a full-time student at the University of the Fraser Valley. She also works two days per week

at the Tantrum day-care. [ 18 ] M.S. began her relationship with R.C. in January of 2008 and she moved in with him in April of 2008. O.S. was then two years old and his natural father was not involved. M.S. moved into R.C.'s trailer park home at Cultus Lake and she paid rent of $550 per month. The relationship ended in December of 2012. [ 19 ] When the relationship began, R.C. was working, and M.S. was responsible for the day-to-day child caring of O.S. The parties shared the cooking of meals, but she did all the cleaning. M.S. wanted R.C. to be more involved with O.S. but it was a constant battle.

According to M.S., R.C. referred to O.S.'s natural father as a "drunk Indian" right in front of O.S. [ 20 ] The parties separated in November of 2008 because R.C. could not take O.S. being pushed upon him. R.C. had actually cut the power to the trailer, so M.S. stayed with a friend in Surrey. The parties reconciled in the beginning of 2009. Apparently, R.C. promised to be more involved with O.S. [ 21 ] M.S. discovered she was pregnant with J.S. in July of 2009. R.C. did not want the baby. This made for a very stressful pregnancy. J.S. was born two months prematurely on [omitted for publication].

The parties had actually separated in February of 2010 but they reconciled shortly after J.S. was released from the hospital in late March 2010. [ 22 ] M.S. was primarily the one to change J.S.'s diapers and bathe him, but R.C. often held J.S. and played with him. M.S. felt that R.C. gave O.S. less attention. O.S. expressed that everyone loved J.S. more than him. O.S. was in day-care initially and J.S. went to day-care in September of 2010 so M.S. could finish her post-secondary program.

She got her first job in 2011. [ 23 ] The parties' relationship ended in December 2012 because of R.C.'s addiction to heroin and oxycontin. R.C. had in fact been on methadone in the past and he used marihuana. M.S. moved out to a basement suite in Chilliwack. [ 24 ] Following separation, R.C. had visitation with J.S. every second weekend from Friday until Monday morning and every second Wednesday following the weekend visit on an overnight. R.C. also visited O.S. from time to time in early 2013, but P.K. was seeing O.S. more regularly on the weekends at that time.

In May of 2013, P.K. stopped seeing O.S. [ 25 ] In January of 2013, M.S. met someone named J.V.D. and they married in May of 2013. Unfortunately, J.V.D. was a drug addict and the marriage did not survive the spring of 2013. [ 26 ] In June of 2013, M.S. and her children were with her friend, E. and her spouse, T.R. M.S. was going out for the evening but J.V.D. followed her and he started yelling at her. R.C. was returning from a flight from Mexico and he overheard the altercation when he phoned M.S.

M.S. denies requesting help from R.C. [ 27 ] According to M.S., R.C. ended up returning to Chilliwack and confronting J.V.D. with a set of brass knuckles. He also removed O.S. and J.S. from the T.R. residence and told M.S. she would never see the children again. The police records do not appear to mention anything about brass knuckles or an assault. [ 28 ] This event prompted court proceedings on July 10th, 2013. As I have described above, the parties reached a consent order whereby R.C. was granted parenting time with J.S. every second weekend, every second Monday overnight, and every Wednesday overnight.

He was granted contact time for the same periods with O.S. [ 29 ] M.S. maintains that the same problems with O.S. continued after this court order. Ms. Cormier treated J.S. and O.S. differently, and J.S. received much more in the way of gifts from his father. There was also an incident when O.S. called his mother at 2:00 a.m. during a visit with R.C. O.S. was very scared and he was hyperventilating. After that incident, R.C. refused to allow O.S. to use his cell phone during visits. [ 30 ] M.S. is also concerned that R.C. is not following the proper evening routine with the boys.

At her house, the boys do not watch TV or play video games two hours prior to bedtime. Dr. Pleydell-Pearce made this recommendation at one of O.S.'s school meetings. Skype screen shots demonstrate that the children stay up too late watching videos at R.C.'s. [ 31 ] M.S. is also having to pay back overpayments of Child Tax Benefits she received because R.C. made a claim for the benefits based on the fact that he had the children 45 percent of the time. [ 32 ] There have been other difficulties between the parties. There was an incident at the day-care when R.C. attempted to grab a necklace worn by M.S.

J.S. was in R.C.'s arms at the time. Also, R.C. has insisted that J.S. be circumcised even though the medical professionals said there is no medical reason for circumcision. As well, R.C. did not always ensure that O.S. is wearing his eyeglasses. [ 33 ] In early 2015, O.S. was said to be struggling emotionally at school. He believed no one liked him, even though some students attempted to reach out to him. [ 34 ] R.C. has not been employed for over two years. He used to do construction work but he allegedly hurt his back.

M.S. is puzzled as to how R.C. can own a 2011 or 2012 Dodge Charger and he has shown her very large amounts of cash in the past. M.S. says she is surviving on student loans. [ 35 ] During cross-examination, M.S. agreed that she filed an application in June of 2014 seeking to suspend R.C.'s visitation for a month so he could take some counselling for his anger. She feels he has an anger issue and she said the brass knuckles incident with J.V.D. is an example of his anger. She also said that R.C. admitted that he had an altercation with someone at a liquor store in Harrison Hot Springs.

In fact, at one point in her evidence she suggested she was there. [ 36 ] M.S. asked R.C. if she could attend O.S.'s soccer games regardless of the parenting

schedule and this was agreed.

[ 37 ] Concerning P.K., M.S. testified in cross that he has never taken any steps to obtain court-ordered visitation. She has sole custody and guardianship of O.S. I will say that P.K. only appeared occasionally in these proceedings, but he appeared aware of the issues. R.C. has been more involved with O.S. than has P.K. For example, R.C. was present when O.S .learned to ride a bike and he took O.S. trick or treating at Halloween. [ 38 ] A s. 211 Views of the Child Report was prepared by the Family Justice Court Service on July 22, 2014 canvassing the views of O.S. O.S. was then seven years old.

That report indicated that O.S. was an active boy who found it easy to say positive things about the adults in his life. O.S. calls R.C. "R." and his biological father "Dad". O.S. identified his mom and R. as the people he goes to when he has problems or needs help with homework. He said sometimes it was easier to find time to talk to R. He wished to see his mom and R. the same amount of days. [ 39 ] M.S. is concerned that O.S. expressed these views right after he had spent a weekend with R.C. when they engaged in an unusual number of fun activities like Castle Fun Park, bowling, and Science World.

She also points out that O.S. has said R.C. is mean to him. [ 40 ] O.S. does have a lot of stressors including the separation, being bullied at school, and having a natural father in and out of his life. M.S. also admitted to having three or four residences since her separation from R.C. but she did not think it affected O.S. M.S. also did not believe O.S. has his own bedroom in R.C.'s trailer as R.C. lives with B.L., her two children, and J.S. and O.S. when they visit. [ 41 ] In cross-examination, reference was also made to Dr. Pleydell-Pearce's reports on O.S. dated June 19th, 2013 and March 11th, 2013.

O.S. has significant speech delay in all domains. He is also an emotionally sensitive lad. The number of family disruptions over time have led to this. In a follow-up report by Dr. Pleydell-Pearce O.S. is said to be a six-year-old boy who has had several challenges emotionally stemming from attachment difficulties. [ 42 ] On August 7th, 2015, M.S. was permitted to present some rebuttal and updated evidence. She was emphatic that her relationship with R.C. started in 2008 and not April of 2007 as alleged by R.C. She graduated from school in June of 2007.

She was also upset that R.C. had just recently taken J.S. for a haircut and a skull image was razor cut on his head. [ 43 ] M.S. also emphasized that O.S. continues to have emotional issues. For example, in January of 2015, O.S. tried to cut his wrists because his iPod battery died. T.R. [ 44 ] T.R. testified primarily about the incident in June of 2013 when R.C. removed O.S. and J.S. from his home at night. M.S. and T.R.'s spouse had gone out for the evening. T.R. had put his children and O.S. and J.S. to bed and then he went to sleep. T.R. was asleep when R.C. entered his home and took O.S. and J.S.

O.S. and J.S. had been sleeping on a couch. T.R. surmised that the front door may not have been locked. He did not hear R.C. knock at the door; he did hear the police come when they arrived. E.L. [ 45 ] E.L. has known M.S. for about 13 years and they were school friends. In November of 2008, M.S. called her for assistance because R.C. had apparently kicked her out of his Chilliwack home and turned off the power. M.S. and O.S. stayed in her Surrey home for about a month. In 2010, M.S. again reached out to E.L. M.S. was pregnant with J.S. and R.C. had again kicked her out.

M.S. and the children stayed about one month. D.G. [ 46 ] D.G. has known M.S. since 1991 or 1992 and he would see M.S. and the children five to six times a year. As I understand it, he is M.S.'s brother-in-law. [ 47 ] D.G. would invite both M.S. and R.C. to come to his home, but usually only M.S. and the children visited. D.G. also visited the family in Chilliwack at R.C.'s residence. R.C. helped out when needed, but the place smelled of marihuana.

R.C. smoked marihuana and said he was growing it to sell. [ 48 ] D.G. did recall an incident on New Year's in 2011 at Harrison Hot Springs when R.C. got into an altercation with another male at a liquor store. He has also heard R.C. say negative things about Native people. I.G. [ 49 ] I.G. is married to D.G. and she is M.S.'s sister. She has known R.C. since 2008 when he started dating her sister. O.S. was almost two years old. She visited R.C. and M.S. in Cultus Lake about five times per year. From I.G.’s observations, R.C. did not interact with the children.

She saw R.C. smoke marihuana around the children. [ 50 ] M.S. had asked I.G.to help care for O.S. when she was having complications during her pregnancy with J.S. and also following J.S.'s birth. O.S. also stayed with her on holiday breaks. [ 51 ] I.G. has witnessed R.C.'s anger on a number of occasions. He was very angry during one appearance at the Chilliwack courthouse and she also recalled his anger surrounding the Harrison Hot Springs incident. I.G. also overheard on the phone a time when R.C. was yelling at O.S. [ 52 ] R.C. has also said that he plans to have a marihuana grow operation and not work.

He has also referred to P.K. as a "no good Indian" and a "drunk". CASE FOR THE FATHER, R.C.:

R.C. [ 53 ] R.C. is 29 years old and he has lived in a trailer in the Columbia Valley since April 2008. [ 54 ] M.S. moved into his trailer with O.S. at that time, but R.C. asserts that his dating relationship with M.S. started as early as December of 2006 and that they lived together in his grandmother's home since the early spring of 2007. This contradicts the evidence of M.S. and her witnesses, but little really turns on this discrepancy. [ 55 ] R.C. testified that he never told M.S. that he was addicted to heroin; he has never taken heroin.

He did plan on attending a methadone clinic in August or September of 2013 and I believe that was later corrected to be 2012. He also maintains that he has never charged M.S. rent of $550 per month but that was put down on some student loan application. [ 56 ] R.C. worked for seven years in the construction industry, but in November of 2011 he hurt his back. This occurred before the parties separated. R.C. further explained that he was prescribed Tylenol 3 and some oxycontin for his back and he developed dependency on these drugs.

He did not attend the methadone clinic to deal with his problem until August of 2012 (as I said earlier he originally said this was 2013, but he was in error). He believed though that he had attended the methadone clinic after the parties separated. R.C. remains on the methadone program and his urine is tested every two weeks. Those tests do not test for the presence of marihuana. [ 57 ] In 2011 and 2012, R.C. had worked in Alberta.

Now he is on disability due to a back injury, some anxiety, depression, a learning disability and opiate dependence. [ 58 ] R.C. maintains that he was involved with O.S. when O.S .was young. He often bathed him and changed his diapers, and he made meals when he was home. He also did a lot of the cleaning as he suffers from obsessive compulsive disorder and he likes his trailer very clean. [ 59 ] R.C. denies that there was a separation in November of 2008, but M.S. did separate from him briefly in February of 2010 before J.S. was born. [ 60 ] R.C. presented photographs of his home and there are four bedrooms.

He denies ever growing marihuana or selling it. He also denies ever owning a set of brass knuckles. [ 61 ] R.C. testified that he saw O.S. grow up. He was there for O.S.'s first haircut, he taught him how to ride his bike, for several years he took O.S trick- or-treating, and he has taken O.S. camping. Right now, O.S. likes soccer and video games. R.C. has attended most of O.S.'s soccer games. Importantly, he has regularly exercised his visitation with O.S. According to R.C., O.S. is a good boy but he has difficulties at school. When O.S. had transferred from I think it was M. School to U.

School, he said he hated his new school because people bullied him. [ 62 ] R.C. has met P.K., O.S.'s natural father, on a couple of occasions and has facilitated some visits with P.K. R.C. has referred to P.K. as a bad father but not in racist terms. R.C. believes that he has some Native ancestry himself. P.K. has chosen to not be very involved in O.S.'s life. [ 63 ] R.C. describes having a close relationship with O.S.

This is confirmed in the s. 211 report to some degree, and R.C. denies ever telling O.S. about a week-on/week-off schedule, and he denies influencing O.S. in that manner. [ 64 ] Following separation, R.C. was asking to see more of O.S., but initially M.S. only allowed him visits with J.S. He still believes M.S. is not keeping him informed of O.S.'s doctor appointments. [ 65 ] B.L. now lives with R.C. and she has two young children who are in a shared-parenting arrangement with their father. R.C. denies that this is a sexual relationship.

M.S. did report his living arrangements to Welfare so he was cut off income assistance temporarily, but B.L. has been in his home since September of 2014 and R.C. has retained his disability benefits. [ 66 ] Regarding the incident in June of 2013, R.C. testified that M.S. left him a voice mail that she was in a fight with J.V.D. and she asked him to pick up the children. R.C. had no dispute with J.V.D. More recent text messages suggest that R.C. and J.V.D. now communicate amicably. [ 67 ] R.C. was told his children were at T.R.’S home.

R.C. had knocked on the front door of the T.R. home for 20 minutes and when there was no answer, he opened the door and saw O.S. and J.S. sleeping on the floor. He says he retrieved the children and informed M.S. [ 68 ] As to the Harrison Hot Springs incident at a liquor store, R.C. characterized that event as an exchange of words with two drunk males. R.C. has never owned a gun and he has no criminal record. [ 69 ] R.C. does admit to smoking marihuana two to three times per week. This is to subdue his anxiety. He does not use marihuana around the children.

R.C. had concerns that M.S. led a partying lifestyle, and her relationship with J.V.D. was disruptive. [ 70 ] As to J.S.'s day-care, M.S. is friends with everyone there so they give him the "cold shoulder." There was one altercation at the day-care between R.C. and M.S., but it did not involve a necklace. [ 71 ] Despite the historical acrimony, the parties are getting along better now. They all recently went together to the PlayDome at B.C. Place. [ 72 ] R.C. is seeking guardianship of O.S. so he can have some decision making concerning schooling, medical matters and activities.

He does have guardianship of J.S., but M.S. still makes decision on her own regarding matters such as dental work. R.C.

would like J.S. to attend a Roman Catholic school, but M.S. disagrees. [ 73 ] R.C. would also like 50 percent of parenting time with each child or perhaps even more. If that were achieved, he could get prescription coverage for the children from the government. R.C. is also concerned that he cannot travel with the children to places like Ontario where his grandmother resides. [ 74 ] R.C. disciplines the children by using timeouts or taking a game away. He also realizes O.S. needs his glasses, but children at school can be cruel about such things.

As to the video game issue, R.C. is cutting the children's time with such games, but the game "Call of Duty" is at both parents' homes. Video game time is used as a reward for homework or cleaning up. [ 75 ] During cross-examination, R.C. was adamant that he and M.S. were in a serious relationship by March of 2007. He saw O.S. just after his birth when he was staying at his grandmother's home. He agreed that when O.S. was young he did have to work a lot, often out of town. [ 76 ] Dr. Pleydell-Pearce did an updated report regarding O.S. in February of 2015.

O.S. had tried some Ann Davis counselling, but it was discontinued. It is reported that the emotional attachment issues for O.S.'s family have become even more complex and reference is made to this litigation. T.T.'s work with O.S. is referenced, but there are unresolved cultural issues for O.S. O.S. uses video games as a form of emotional escape. Longer term family-oriented and attachment intervention is recommended. [ 77 ] I make reference to Dr. Pleydell-Pearce's report here because it was put to R.C. In cross, R.C. said he has taken J.S. to a different paediatrician regarding the circumcision issue.

O.S. now has an Aboriginal Status Card which allows him certain benefits. R.C. would like at least one or two more days of parenting time because, as I have said above, the children would be eligible for medical benefits such as inhalers for O.S. [ 78 ] In cross, R.C. admitted going on trips to Cuba and Mexico. Although he is on income assistance disability, he saved money from the time he was working and he has rich grandparents. [ 79 ] There is a dispute over schooling for the children. R.C. would prefer to see O.S. stay at M.T. School rather than U. Elementary.

He would prefer J.S. to be at a Catholic school rather than U. Elementary. L.C. [ 80 ] L.C. is R.C.'s aunt and she has seen R.C. interact with O.S. and J.S. R.C. is "awesome" with the children and they listen to him. L.C. believes that R.C. is very patient with them and he is compassionate and organized. She has also observed R.C.'s bedtime routine with the children. C.H. [ 81 ] C.H. lives in the same trailer park as R.C. Their homes used to back each other, but in 2011-2012, she moved two streets over. C.H. has three children herself.

C.H. never saw anything suspicious at R.C.'s home and she never saw marihuana growing in his home. R.C. did use marihuana. C.H. observed R.C. to have a good relationship with O.S. and J.S. She did not see R.C. treat O.S. differently than J.S. She has never seen R.C. use physical discipline on the children. B.L. [ 82 ] B.L. has two boys, aged three and five, and she lives with R.C. She has lived with R.C. since November of 2014 and she lived there previously in 2013 for six months. B.L. has in fact known R.C. her whole life and of course she has lived with J.S. and O.S.

O.S. is a bright, outgoing boy, and so is J.S., although he is timid. O.S. and J.S. get along well with her children. [ 83 ] B.L. confirmed that she was only a roommate and she was not in a romantic relationship with R.C. As O.S. has gotten older, he and R.C. have grown closer. R.C. has a very established routine for his boys. He also has a chore chart with buttons and video time as rewards. [ 84 ] R.C. does not need to discipline the boys often and B.L.'s children actually need more timeouts.

R.C. has also really worked with O.S. to get his evening homework done. [ 85 ] B.L. has seen no weapons in the home and no signs of growing marihuana. R.C. has not used marihuana in front of the children. [ 86 ] Regarding the June 2013 incident, B.L. heard the voice mail from M.S. wherein she was requesting that R.C. pick up the children right away. She also saw M.S. and J.V.D. arguing in the parking lot in Chilliwack. They were intoxicated.

It was J.V.D. who actually told them where O.S. and J.S. were and that they should be concerned. [ 87 ] At this time, M.S. and B.L. have a good relationship, and the interactions at the day-care are more tense, however. M.S.'s attitude there is different. [ 88 ] According to B.L., M.S. has a number of health issues. She suggests that these two parents just sit down together alone and work out these issues. B.L. observed R.C. treat P.K. respectfully and she has heard no racist remarks. Her brother is Aboriginal.

During cross-examination, B.L. admitted that she travelled to Cuba with R.C. and she paid for the vacation. She does pay occasional rent to R.C. GUARDIANSHIP/PARENTING TIME: [ 89 ] R.C. is seeking guardianship of O.S. and greater parenting time with both children. M.S. is seeking to reduce R.C.'s parenting time with J.S. and contact time with O.S.

[ 90 ] I should say at the outset that I see no legal impediment with R.C.'s guardianship application concerning O.S. He has filed a Form 34 affidavit pursuant to Rule 18.1 with the necessary Ministry records check, protection order records check, and criminal record check.

Furthermore, the natural father of O.S. has had notice of this proceeding and but for a brief attendance, he has not been engaged in the process. [ 91 ] I am also satisfied that there has been a change in the needs or circumstances of the children since the last substantive orders or agreements were made in this matter on July 10th, 2013 and August 30th, 2013. The July 10th order was interim in any event, and there was a subsequent agreement to vary those interim arrangements. The changes include J.S. now being school age, the emerging concerns raised in Dr.

Pleydell-Pearce's reports about O.S., and generally the passage of two years' time since these earlier orders and agreements. [ 92 ] The real issue then is whether any change in guardianship or parenting time/contact is in the best interests of O.S. and J.S. [ 93 ] I must take into account the factors as set out in s. 37(2) of the Family Law Act and I do so as follows: 1. Section 37(2)(c)(e) & (f) – The Abilities of the Parties to Parent, the Strength of the Relationships, and the Need for Stability. [ 94 ] There have been times during this trial when I was struck by the immaturity of both parties.

The argument at the day-care over a necklace or whatever sets a bad example for all who observed it. The June 2013 incident was handled poorly by all concerned. I have little doubt that M.S. and J.V.D. were in an altercation and drinking was involved. The children were fairly safe at T.R.’s home, but the front door appeared to be unlocked. It was one thing for R.C. to retrieve the children, but I conclude that he used that event to try to gain an upper hand in this dispute. [ 95 ] The history here suggests that one party is always prepared to pounce on any perceived inadequacies in the other party.

That said, there is hope for future cooperation here. The fact that the parties and children recently attended PlayDome together without incident is a good thing. I also note that M.S. and B.L. appear to now get along. [ 96 ] M.S. has a number of strengths. She is working at a day-care and is thereby acquiring better parenting techniques. She has followed through with professionals such as Dr. Pleydell-Pearce and the Aboriginal Child and Youth works. Their involvement in O.S.'s life is critical. [ 97 ] However, M.S. has also had periods of instability which have mostly affected O.S.

In her youth, she had a relationship with P.K., O.S.'s father, but P.K. has not had any long-lasting relationship with O.S. After separating from R.C., she married J.V.D. That relationship was brief due to J.V.D.'s substance abuse. As alluded to by Dr. Playdell-Pearce, all these changes in possible father figures has been very hard on O.S. [ 98 ] R.C. has strengths as a parent. More recently, he has made a sustained effort to be more involved in the children's lives.

At this time, he has a greater opportunity to be with the children because he is not working, but I conclude he has better understood his role as a father. He also has a stable home, and B.L. is a very good addition to the household. However, R.C. still faces a number of issues. He is on the methadone program and he needs to re-establish employment. More importantly, I accept that at least in the past he treated O.S. differently than J.S., and he was not open-minded about O.S.'s Aboriginal programs. That said, O.S .is now very close to R.C. as set out in the s. 211 report.

R.C. must take care not to be too single-minded on issues such as schooling, circumcision and the like. 2. Section 37(2)(a) – The Children's Health and Emotional Well-being [ 99 ] I am very concerned about O.S.'s emotional fragility as described in Dr. Pleydell-Pearce's reports. He needs stability and less acrimony. Both parents must better diffuse the conflict. I have also heard evidence that J.S. has had health issues and he was born premature. I have further heard that he has punched other children in the day-care.

These health and behaviour concerns suggest to me that one parent ought to be the initial decision maker so as to avoid constant bickering and the undermining of the other party. 3. Section 37(2)(b) – Child's Views [ 100 ] J.S. is too young to have his views canvassed. O.S. expressed his views in the s. 211 report. O.S .finds it easy to talk to R.C. and he wished to have equal time with R.C. O.S. was seven or eight years old when he expressed that opinion and he does not necessarily know what is in his own best interests. However, it is clear that R.C. is more of a father figure to O.S. than is P.K. 4.

Section 37(2)(d) – History of the Children's Care [ 101 ] I am satisfied that M.S. was the primary caregiver for the children for much of their lives. R.C. was working during their relationship but he did participate as a parent. In the early period following separation, he focussed more on J.S. than O.S., and this was observed by a number of witnesses. However, R.C. has greater involvement right now and O.S. has grown quite close to him. P.K. has been an inconsistent figure in O.S.'s life.

That said, R.C. must be careful not to speak negatively of P.K., and moreover, he needs to promote O.S.'s Aboriginal culture. 5. Section 37(2)(

g) and (h) – Family Violence [ 102 ] Although I am puzzled about R.C.'s income and assets situation given his disability, I am not persuaded that he leads a criminal lifestyle. There is no conclusive evidence of a marihuana grow operation or the possession of weapons. Family violence is not a concern. However, R.C. has been insensitive to certain issues facing the family. He needs to promote O.S.'s Aboriginal background as I have already stated, and he must treat M.S. with respect. 6. Section 37(2)(i) – Cooperation of Parents

[ 103 ] In my view, there is a lack of cooperation between the parents on key guardianship issues. R.C. disagrees with the current school for the children; he wants J.S. circumcised; he gave J.S. a haircut recently without consulting the mother. On the other hand, M.S. has made decisions without consulting R.C. [ 104 ] As stated above, discord between the parties affects the well-being of the children. I cannot order that there be harmony here, but I can hope to prevent discord. This means a clear decision making mechanism must be in place. I bear in mind that M.S. has already been responsible for arranging Dr.

Pleydell-Pearce's appointments and Aboriginal programs for J.S. [ 105 ] Having taken into account all of the above analysis, I am prepared to make R.C. a guardian of O.S. However, M.S. shall have final decision making responsibilities with court review open to R.C. I appreciate there is older case law discouraging joint guardianship where the parents cannot cooperate, but the new Family Law Act can address this problem with decision making clauses about parenting responsibilities. [ 106 ] With respect to parenting time, a move to week-on/week-off is too disruptive at this stage.

However, R.C.'s parenting time can be expanded during holiday periods, as I will set out. [ 107 ] So these are my orders and before I make the first order, I note the only way this will make sense is if I cancel some previous orders, otherwise we are going to have conflicting orders. [ 108 ] So my first order is that the order and protection order granted August 14th, 2013 is cancelled. The agreement filed November 5th, 2013 and made August 30th, 2013 is cancelled. The order granted July 10th, 2013 is cancelled. [ 109 ] I am going to make the following recital: A. 1.

Upon the Court being advised that the name and birth date of each child is as follows: O.S., born [omitted for publication] J.S., born [omitted for publication] B. 1. The Court is satisfied that M.S. is the guardian of both children. B. 2 This Court is satisfied that R.C. is the guardian of J.S. B. 3 Under s. 51(1)(

a) of the Family Law Act , R.C. is appointed a guardian of O.S. [ 110 ] I could not find the file number, but I would like to add in a term of the order that the other court file involving M.S. and P.K. shall follow along with this file for any future application. [ 111 ] Then my next order is really going to be a modified Joyce Model as follows. • M.S. and R.C. will exercise all parental responsibilities with respect to the children on the following terms: 1. Each guardian will have the obligation to advise the other guardian of any matters of a significant nature affecting the children. 2.

Each guardian will have the obligation to discuss with the other guardian any significant decisions that have to be made regarding the children, including significant decisions about their health (except emergency decisions), education, religious instruction, and general welfare. 3. The guardians will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions. 4.

In the event that the guardians cannot reach agreement on a significant decision despite their best efforts, M.S. will be entitled to make those decisions, and R.C. will have the right to apply for directions on any decision he considers contrary to the best interests of the child or children under s. 49 of the Family Law Act . 5.

Each guardian will have the right to obtain information concerning the child directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third party caregivers. [ 112 ] This is not part of the order, but that is a modified Joyce Model to accommodate the new Family Law Act . [ 113 ] I am also going to add in these orders so that there is some stability for the future: • Until further order of this court, the children shall attend U.

Elementary School or such other school as M.S. directs. [ 114 ] There will be another order that: • Until further order of this court, O.S. will continue to be under Dr. Pleydell-Pearce's care. [ 115 ] This is not part of the order, but because we are still dealing with guardianship, I am going to adopt some orders from the old mediation agreement. [ 116 ] The next order is about emails. It will say this: • M.S. and R.C. will attempt to communicate by email whenever possible on the following conditions:

(

a) the emails are strictly for the purposes of sharing information about the children; and (

b) the tone and content of the emails must be respectful at all times. [ 117 ] I am also going to adopt this order from the old agreement: • M.S. and R.C. shall follow the following communication and co-parenting guidelines: (

a) they will not talk negatively about the other to the children or in front of the children; (

b) they will not talk about the court proceedings to the children or in front of the children; (

c) they will not use swear words or foul language to the children or in front of the children. [ 118 ] I am also going to use F6 from our FLA Picklist and it will simply say: • Neither party will consume or possess any alcohol or controlled substances within the meaning of s. 2 of the Controlled Drugs and Substances Act , except as prescribed by a licensed physician, during parenting time and four hours before having parenting time. [ 119 ] These further guardianship clauses are going to be added: • Both parties shall promote O.S.'s Aboriginal culture and heritage. [ 120 ] Further order: • Both parties shall ensure that the children are exposed only to age appropriate video and computer games. [ 121 ] Those are the guardianship orders.

Now I am going to turn to parenting time. • R.C. shall have parenting time with both children as follows: (

a) every Wednesday at 4:00 p.m. until Thursday at 4:00 p.m.; (

b) every second Monday from 4:00 p.m. until Tuesday at 1:00 p.m.; (

c) every second Friday from 4:00 p.m. until Monday at 10:00 a.m. [ 122 ] The next clause will simply be that: • M.S. shall have the balance of the parenting time. [ 123 ] Now, the parents may need time to digest this.

I was not going to put commencement dates because I assume the Mondays and the weekends have already been figured out. [ 124 ] Next: • School holiday periods at Christmas, Easter, spring break and the summer shall be shared with the children equally. [ 125 ] I add as follows: • If the parties cannot agree on the schedule, R.C. shall have the first half of the above holiday periods in 2015 and in alternating years thereafter, and M.S. shall have the first half of the above holiday periods in 2016 and in alternating years thereafter. [ 126 ] This is not part of the order, but I have essentially left the weekly arrangements as they are, but there is an increase in Dad's time during holiday periods which could be substantial, especially during the summer.

In my view, this provides stability for the children while giving the father a bump-up in parenting time. [ 127 ] My final order is that: • Either party is at liberty to take the children outside the Province of British Columbia during their parenting time, so long as an itinerary and contact information is provided to the other party 30 days in advance of the trip. [ 128 ] Those are my orders. I do not know if the parties need to stand down. I do not expect any dispute about the orders, but if there is some clarification that is needed, I would be willing to hear that.

Do we need to stand down and who is going to draft the order? [ 129 ] MR. PEDERSEN : I am drafting the order, Your Honour. I believe it was R.C.'s original application. [ 130 ] THE COURT : I am going to order a transcript of my decision for the file, and the parties can order copies if they wish. (SUBMISSIONS) [ 131 ] THE COURT: I will order that the summer shall be shared equally but no one party shall have the children for longer than 16 days in a row. [ 132 ] So you will have to work that out and you will have to email each other's schedules.

Now remember, I have said in that order that if the parties cannot agree, it is what is ordered, but the parties can fine-tune Christmas and Easter and spring break, depending on

how each year unfolds. Is there anything else? (SUBMISSIONS) [ 133 ] THE COURT: All right. I think given that nothing else is agreed upon I will make that change to F6 so that where I said, Madam Clerk, that neither party will consume or possess, I am simply going to say neither party will consume any alcohol or controlled substance within the meaning of s. 2 of the Controlled Drugs and Substance Act except as prescribed by a licensed physician during parenting time or for four hours before having parenting time. So I have just taken out the word "possess". It may not be perfect, but I will leave that in there.

If the parties wish to mutually agree to remove that at some future date, I will, but I have still heard allegations within this proceeding that it is an issue, but not as strong as it was in the past. Anything else? [ 134 ] So we will leave it at that. I am no longer seized of the file. [ 135 ] A transcript will be ordered. I'm hoping if there are disagreements, and I can foresee some, that the parties will use Family Justice counsellors, or even their lawyers, to mediate before they quickly run back to court, because you can see how long it takes to get to court.

This trial started in February and just ended now. G.J. BROWN Provincial Court Judge