W. v. L. Date:, 2012 BCPC 190

Citation: W. v. L. Date: 20120608 2012 BCPC 0190 File No: 13077 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: B.W. APPLICANT AND: C.L. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Applicant: Ms. M. Payne

Counsel for the Respondent: Mr. K. Jensen Place of Hearing: Kamloops , B.C. Date of Hearing: May 15, 2012 and May 16, 2012 Date of Judgment: June 8, 2012 [ 1 ] This is an application by C.L. to vacate all prior orders and make a final order for custody and guardianship with primary residence to be with C.L. This file involves the child, S.S.W., born [DOB]. B.W. seeks an interim order for sole custody with primary residence to him and access to Ms. C.L. on the weekends.

There are some ancillary orders sought with respect to pick-up and drop-off conditions, the police assist clause and no access in the presence of a person named J.S. [ 2 ] Ms. Payne’s client does not wish a final order at this time. This was an expedited hearing, in a manner of speaking. No final hearing time is set yet but a proper trial on the issues of custody, guardianship, and access are sought by Mr. B.W. Ms. Payne argued that it would be extremely prejudicial to Mr. B.W. to make a final order now. [ 3 ] Mr.

Jensen argued, quite rightly, that the justice system should not be clogged with multitudes of interim orders if final orders can be resolved on the evidence before the court. In this case, however, the parties were focused entirely upon the financial aspect of who has primary residence of this child. Very little evidence was led with respect to the various considerations of the best interests of the child.

It would be inappropriate in the context of this hearing, therefore, to make a final order. [ 4 ] As I indicated to the parties at the hearing, I am vacating all other orders and replacing them with an interim order. I have also ordered a s. 15 Child Custody and Access Report. I made a further interim order for shared access of the child one week on and one week off, with pick-up and drop-off to be at the day care centre. Exchanges were to occur on Tuesdays. [ 5 ] As I said, this interim application was largely about money.

The money in this case is comprised of the tax credits and child care benefits provided by the federal and provincial governments to the person with primary residency of the child. Both Mr. B.W. and Ms. C.L. are on social assistance. Both of them have made half-hearted attempts to obtain further employment and education to qualify for better employment. Neither one of them has followed through.

As a consequence, the amount of benefits afforded by the tax credits, child care benefits, and social assistance payments are of a considerable sum to both parties. [ 6 ] The best interests of the child are set out in s. 24 of the Family Relations Act : 24

(1) When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child's needs and circumstances: (

a) the health and emotional well being of the child including any special needs for care and treatment; (

b) if appropriate, the views of the child; (

c) the love, affection and similar ties that exist between the child and other persons; (

d) education and training for the child; (

e) the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately.

(1.1) The references to "other persons" in subsection (1) (

c) and to "each person" in subsection (1) (

e) include parents, grandparents, other relatives of the child and persons who are not relatives of the child.

(2) If the guardianship of the estate of a child is at issue, a court must consider as an additional factor the material well being of the child.

(3) If the conduct of a person does not substantially affect a factor set out in subsection (1) or (2), the court must not consider that

conduct in a proceeding respecting an order under this Part.

(4) If under subsection (3) the conduct of a person may be considered by a court, the court must consider the conduct only to the extent that the conduct affects a factor set out in subsection (1) or (2). [ 7 ] None of these considerations include who may receive the greatest benefits from the various sources of economic relief available to residents of this province. Child support is a matter to be resolved between the parents based upon the outcome of either their agreement respecting custody, access and primary residence or a court order on the same.

As the parties proceed toward a resolution of the child support issues, they should be taking into consideration who will apply for which benefits. This court will not determine the appropriate basis for custody, access or primary residence on the basis of who needs those benefits the most. [ 8 ] Before considering those areas which are properly addressed under the best interests of the children, it is important to note that this family has been involved with the Secwepemc Child and Family Services (“Child Services”) through a social worker, Ms. I. Child Services had previously provided a letter on behalf of Mr.

B.W. stating there were no protection concerns where he was involved. Then, on April 13, 2012, Ms. C.L. attended Mr. B.W.’s apartment to pick up their child. Mr. B.W. had refused to allow the child to go home with Ms. C.L. because she was ill. Ms. C.L. called the police for assistance before attending. When the police arrived, they found drug paraphernalia in the home. No charges have come from this incident but S.S.W. clearly wanted to leave with her mother. She was allowed to do so. [ 9 ] When Child Services subsequently interviewed S.S.W., she said that her father had put his hand over her mouth when Ms.

C.L. was knocking on the door. The investigation had ensued because of the drug paraphernalia in the home. [ 10 ] Part of the interview involves speaking with the day care S.S.W. attends, being the [omitted for posting]. The day care expressed no concerns regarding Mr. B.W.’s parenting. They reported that S.S.W. came well dressed, clean, fed and with extra clothing. There were no indications of abuse. Apart of one complaint that Ms. C.L. had once been disrespectful toward the day care operator, there were no concerns on their part and no contact of any substance with Ms.

C.L. [ 11 ] The social worker indicated that Ms. C.L. was willing to connect with services throughout. Child Services has been involved with Ms. C.L. through another one of her children and that child’s biological father, J.S. They have no continuing concerns with respect to S.S.W. and Ms. C.L.’s home. HEALTH AND EMOTIONAL WELLBEING: [ 12 ] It appears that S.S.W. is loved and well cared for by both parents. Both parents have seen fit to leave the child with the other parent when it has been necessary or convenient to do so. The incident on April 13 was clearly upsetting to the child.

That situation was precipitated by Ms. C.L.’s approach and Mr. B.W.’s response. Ms. C.L. had no basis for pounding on the door and yelling through it or calling the police to attend and give her assistance to recover the child. She had no basis for believing that Mr. B.W. was keeping the child from her for any other reason than the fact that S.S.W. was ill. While it is true that Ms. C.L. is equally as capable of looking after the child when ill as is Mr. B.W., it is not a police call kind of emergency. [ 13 ] Similarly, Mr. B.W. frightened his own child by covering her mouth and ignoring the knocking on the door.

He acted inappropriately by withholding S.S.W. from her weekend with her mother. The unfortunate outcome was not only a police attendance but also a child protection investigation. Most importantly, it left the child in tears and upset with her father. [ 14 ] In this circumstance, both parents put their own interests and demands ahead of those of S.S.W. As a result, she was left in tears and the incident obviously left an impression upon her.

It was all entirely unnecessary. [ 15 ] The only other health and emotional wellbeing component to this case on the evidence before me is the incident involving S.S.W.’s half brother, R. While in his father’s care, R. was cut when Mr. J.S. dropped a beer bottle and it broke. Mr. J.S. was apparently under the influence of alcohol when the incident occurred. Child Services took the appropriate measures and no longer have continuing concerns about Mr. J.S. VIEWS OF THE CHILD: [ 16 ] S.S.W. is very young at this point. Her views will have to be expressed in some form or another.

For the interim hearing, very little of her views were expressed. The only instance of any measure was on the occasion of the police attendance when, in private, S.S.W. said she wanted to go home with her mother. That cannot be taken to mean that S.S.W. always wishes to be with her mother. This is an area that will have to be explored more fully before the final hearing. LOVE, AFFECTION AND SIMILAR TIES: [ 17 ] It is evident from the testimony of both parents that this child is loved and well cared for by either parent. Her father lives with a roommate about whom I am told very little.

Her mother resides with S.S.W.’s two half siblings which is bond that should become strong in the ordinary course of their young lives. Very little else was presented in the evidence about S.S.W.’s ties and whether they would be affected regardless of which parent she lives with. This will have to be explored more fully in a final hearing. EDUCATION AND TRAINING FOR THE CHILD: [ 18 ] S.S.W. is young yet to be attending school. She has been attending the [omitted for posting] since September, 2011. This was under the direction of Child Services who recommended the child be put in day care while Mr.

B.W. was recovering from an

injury. The child has continued to be in day care. When in Ms. C.L.’s care, the child does not go to day care. Socialization for a child is extremely important. A younger sibling cannot substitute that peer group enrichment a day care can provide. On the other hand, there is no requirement that stay at home parents should have their child in day care. It adds another layer of financial strain to the parties that is not prudent in their respective current circumstances.

CAPACITY TO EXERCISE THE RIGHTS OF GUARDIANSHIP, CUSTODY OR ACCESS: [ 19 ] Both parents have shown that they have been willing so long as the financial status quo is not interrupted to co-parent this child in accordance with their needs. When Ms. C.L. was hoping to attend a course to further her education, Mr. B.W. became the primary caregiver for S.S.W. The parties are in disagreement about whether or not before and after that, the access arrangements were week-on and week-off. Certainly there is nothing on the evidence before me to suggest that week-on week-off cannot work for this child.

That remains to be determined through the final hearing and with the assistance of the s. 15 Child Custody and Access Report I have ordered. [ 20 ] However, both parents have shown that they have the capacity to conduct themselves very poorly on matters of access. Ms. C.L. was content to leave ex-parte orders without amendment so long as she continued to receive the financial benefits as the parent with primary residence. Once Mr. B.W. applied for the benefits, Ms. C.L. took issue with the orders Mr. B.W. had obtained. [ 21 ] On the matter of the orders granted in these proceedings, it defies me how Mr.

B.W. could persuade Judge Shupe of the necessity of an interim without notice order resulting in an order granting sole custody of the child to Mr. B.W. On the evidence before me, there was no basis for the urgency. The result has been unfortunate and disruptive of relations between the parents of this child. There were no matters of endangerment to this child, despite the drug paraphernalia found in Mr. B.W.’s home. There is also evidence that Ms. C.L. smokes marijuana every evening. [ 22 ] Neither one of these parents poses a risk to the child.

They have conducted themselves very poorly and all for a disagreement over who should be able to lay claim to the financial benefits offered by primary residency. That does not mean they cannot conduct themselves appropriately. [ 23 ] There is also some indication that both parents have spoken very poorly of the other parent in the presence of this child. Parents seeking custody, guardianship, access and primary residency of a child must treat the other parent respectfully. It is inappropriate to speak ill of a child’s parent in this manner.

It will bode very badly for the final orders if this conduct continues. [ 24 ] On the other hand, both families are under significant financial constraints. Despite that, both have been assisting each other both financially and with child care throughout this child’s life. This is very promising for the prospects of the parties reaching an agreement that not only makes S.S.W.’s best interests the primary focus, but works for both of them. [ 25 ] I agree with Mr. Jensen that Ms. C.L. ought not to be prejudiced in these proceedings for failing to keep the court apprised of her address.

For her, this was an entirely economic matter. She was content to maintain the status quo afforded by the orders so long as that economic status quo was not disrupted. [ 26 ] I disagree, however, with his submissions regarding the theoretical appropriateness of day care. It is certainly an extra cost to whichever parent is paying to have this child in day care. These families are obviously strapped for resources and it may not be the best expenditure. However, I cannot fault Mr. B.W. for putting the child in day care where she receives the benefit of socialization with her own peer group.

This is an expense the parties cannot afford. If Mr. B.W. wishes S.S.W. to attend day care, he must make that financial sacrifice on his own. [ 27 ] Whether Mr. B.W. was attempting to silence S.S.W. so that she would not go with her mother or whether he was attempting to silence S.S.W. to prevent illegal activity being discovered does not ultimately matter. What matters is that he prevented Ms. C.L. from having access to S.S.W. at a time that was defined to be for Ms. C.L. It is difficult to conceive that Mr. B.W. was attempting to shield drug use from Ms. C.L. when she is herself a drug user.

It is more likely he was trying to prevent access. He is now on notice that an improper exercise of access by either parent may ultimately result in reduced access for the offending parent. [ 28 ] I agree with Ms. Payne that two recent incidents should not dictate the future of this child in isolation. There must be a view to the broader picture. The day care says Mr. B.W. cares for her well, she is fed and clothed properly and she comes to day care with the appropriate change of clothing. The incident involving Mr.

B.W.’s attendance at the day care after consuming beer, and the incident on April 13 is not so much about concern for the child’s wellbeing but opportunistic manipulation. His subsequent entirely inappropriate behaviour calling the R.C.M.P. when Ms. C.L. was entitled to have the child with her by agreement of the parties does call into question his ability to conduct himself properly when it comes to matters of access and guardianship. He maintains that he does not have a drug and alcohol problem but this conduct belies that assertion. He will have to be prepared to address that more fully at the final hearing.

DECISION: [ 29 ] This is an interim order only. I order that there be joint custody, joint guardianship and shared primary residency of the child. That shared residency shall occur on the same terms as the interim order that I made on May 16, 2012. In other words, the parties will continue to alternate access with the exchange to be on Tuesdays at the day care.

If the child discontinues attendance at day care, that exchange shall occur at a mutually agreed pick-up and drop-off location. [ 30 ] Neither party shall be under the influence of illicit drugs including legal prescription drugs not prescribed to that person, or alcohol while S.S.W. is in their care. [ 31 ] All other orders relating to these proceedings are cancelled except my order of May 16, 2012 with respect to the s. 15 Report which shall endure.

______________________ S.D. Frame Provincial Court Judge