R.H. v. M.N. Date:, 2017 BCPC 346

Citation: R.H. v. M.N. Date: 20171006 2017 BCPC 346 File No: 13670 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: R.H. APPLICANT AND: M.N. a.k.a M.G., hereinafter referred to as M.N. RESPONDENT ORDER OF THE HONOURABLE JUDGE G.J. BROWN Counsel for the Applicant: S. Jodway Counsel for the Respondent: P. Rowlands Place of Hearing: Abbotsford , B.C.

Dates of Hearing: September 19, 20, 2017 Date of Judgment: October 6, 2017 INTRODUCTION [ 1 ] THE COURT: R.H. and M.N., previously known as M.G., are the parents of a six-year-old boy, L.G. M.N. also has an older boy, M., from a former relationship. For the last two-and-a-half or three years, L.G. has been living with R.H. in Mission, B.C. and he is currently in Grade 2 at [deleted for publication].

M.N. lives with her husband and M. in Alberta, but she has regular parenting time with L.G. by phone and during holiday periods. [ 2 ] M.N. seeks to vary the consent order of Judge Point made December 30th, 2014 so that L.G.'s primary residence would be with her in Alberta. She has been L.G.'s caregiver from his birth in 2010 until at least mid-2014, and she is concerned about R.H.’s current care of the child. Indeed, the Ministry has been involved with R.H. due to delays in ear surgery for L.G. and due to R.H.'s anger issues and some other matters. [ 3 ] This is a difficult case.

M.N. lives in Beaumont, Alberta near Edmonton; R.H. lives with L.G. near Mission, B.C. The parent who does not get primary residence of L.G. will be a great distance from this boy and will only be able to exercise parenting time on holidays or occasional long weekends, apart from phone visitation. [ 4 ] R.H. has been the primary caregiver for L.G. and his son enjoys living in the mobile home park near Hatzic Lake. R.H. has the support of a new partner, his many family members, a neighbour who provides daycare and services provided by the Ministry.

However, he is a man with anger issues who has difficulty coping with various stressors. He was also very slow in addressing some of L.G.'s medical needs. [ 5 ] M.N. has a nice home in Beaumont with her husband and her son M. She is an organized and capable caregiver, however she is overly critical of R.H. and she has wrongfully withheld L.G. from him. As well, her application, if granted, would pull L.G. from all that he has known in B.C. [ 6 ] The parties' acrimonious relationship with each other makes this file all the more difficult. In her text messages, M.N. refers to R.H.'s cell phone as "liar cell phone".

I am also of the view she baits him during phone calls. That being said, R.H. cannot seem to communicate with M.N. for any length of time without either swearing or hanging up. I can only hope that most of the parties' communication with each other is out of L.G.'s eyesight and earshot. [ 7 ] In this decision, I will also address the issue of child support and whether or not M.N. is required to pay R.H. retroactive child support. BACKGROUND [ 8 ] M.N. and R.H. were in an on/off relationship prior to the birth of their son L.G. on [deleted for publication].

At the time of L.G.'s birth, the parties were already separated. M.N. has an older son M. and R.H. had acted as a parent to him at various times. [ 9 ] In 2012 M.N. planned to move to Alberta with the children and she believed she had R.H.'s consent to do so. However, R.H. served her with a motion seeking non-removal of L.G. from B.C.

An interim resolution was reached by way of a consent order on November 6, 2012, which provided R.H. with two weeks of access every two months apparently on the premise that M.N. would move to Alberta with the children pending a full hearing. [ 10 ] On February 21, 2013, following a contested hearing, M.N. was granted primary residence and sole custody of L.G. but R.H. was made a joint guardian. The order granted R.H. visitation similar to the earlier order. [ 11 ] M.N. remained in Alberta with the two boys but she encountered some difficulties.

She was working long hours and she had separated from her then partner. R.H. was then in a committed relationship with M.D. and they eventually had a baby girl, Ma. To her credit, M.N. decided that L.G. should come back to B.C. in mid-2014 to live with R.H. and M.D., and she was hopeful R.H. would address L.G.'s needs such as speech therapy. [ 12 ] There is some debate about who was responsible for L.G.'s care from mid-2014 to August of 2015.

M.N. says there was a shared parenting arrangement for that period and she agrees L.G. was in R.H.'s primary care from September of 2015 onwards when kindergarten started for L.G. Conversely, R.H. takes the position he was primarily responsible for L.G. from June of 2014 onwards, though his evidence on that point is less than clear. I do note that M.N. did start to pay child support to R.H. in 2014 and the child tax benefit was transferred by her in mid-2014. [ 13 ] What is clear is that on December 30th, 2014 the parties entered into a consent order wherein R.H. was granted the majority of the parenting time.

M.N. was to have reasonable and generous parenting time with L.G. including three phone calls per week. [ 14 ] There are indications that L.G. had hearing issues as early as 2012 and he was recommended for a tonsillectomy and grommet procedure by Dr. Tsai throughout 2015. For a variety of reasons, none of which are very good ones, L.G.'s surgery did not happen until September 20th, 2016. [ 15 ] In approximately August of 2015 R.H. separated from M.D., and it appears that their family file is every bit as litigious as this file. R.H. entered into a peace bond concerning M.D. in February or March of 2017.

In the meantime, M.N. married Mr. N. in September of 2015 and they continue to live in a home in Beaumont, Alberta with Mr. N.

[ 16 ] In March of 2016 M.N. had L.G. in her care in Alberta over spring break. She says she became concerned about L.G.'s behaviours and the lack of follow-through with the ear surgery and other issues. She made a report to the Ministry in Mission, B.C. and began the process of enrolling L.G. in school in Alberta.

When R.H. realized L.G. was not being returned to him, he brought a without notice motion, although M.N. did appear in court by telephone. [ 17 ] On March 24, 2016, Judge Ritchie was satisfied that M.N. wrongfully withheld L.G. and she ordered that L.G. be returned to his father with a police assist clause. L.G. was returned to his father without the intervention of the police. As stated above, L.G. continues to live with R.H. in the mobile home park in Mission and he has many friends and relatives in that area. His neighbour provides daycare. L.G. has now just started Grade 2 there.

M.N. remains in Alberta with her spouse and M. She has had long visits with L.G. over spring break in 2017 and in the summer. THE MOTHER'S CASE 1. M.N., the mother [ 18 ] M.N. testified that she broke up with R.H. back in 2009 when she was three months pregnant with L.G. She felt R.H. was then unstable as he abused drugs and alcohol and could not hold onto a job. She conceded she did use illicit drugs some nine years ago. [ 19 ] M.N. explained the background leading to this trial.

After she and the two boys moved to Alberta, her relationship with a man ended and she changed jobs to work as an operations manager of a truck

part company. Previously she had been a manager of a janitorial supply company. [ 20 ] M.N. made a very difficult decision. Because she was working long hours and L.G. was often in daycare, she decided it would be best if L.G. returned to R.H.'s home in Mission, B.C. R.H. was in a stable relationship at that time with M.D., he was working full- time and she understood that R.H. would attend to L.G.'s needs concerning speech and his ears. [ 21 ] The December 30th, 2014 court order reflected the new arrangement, but M.N. maintains that between July of 2014 to August of 2015 L.G. shared time between the parents.

Once L.G. started kindergarten, he was definitely in R.H.'s primary care. [ 22 ] When M.N. has L.G. for visits in Alberta she often pays for flights, or the parties will meet by vehicle halfway in Valemount, B.C. M.N. was upset that she was not allowed to see L.G. in December of 2015. [ 23 ] M.N. married Mr. N. on September 26, 2015 and she continues to live with him and her son M. in Beaumont, Alberta. Mr. N. has a very good relationship with both M. and L.G. In March of 2016, the parties had arranged for L.G. to come out to Alberta for spring break.

When L.G. arrived, M.N. became very concerned about some of L.G.'s behaviours, and I note she is now expressing some of the same concerns following her visit with L.G. during the summer of 2017. [ 24 ] During the visit of March of 2016, M.N. said that L.G. was wetting his bed and having nightmares. She also observed that L.G. had sleep apnea and R.H. was not accepting that L.G. had this condition. At that time she was concerned that L.G. was too skinny.

I must say that both parties are now concerned that L.G. is too heavy, and each parent blames the other for L.G.'s weight gain. [ 25 ] Most significantly, L.G.'s hearing was an issue and R.H. had not arranged the tonsillectomy or ear surgery as recommended by Dr. Tsai. M.N. spoke to L.G.'s kindergarten teacher and she says the teacher shared her concerns. [ 26 ] M.N. was also very concerned about R.H.'s situation in B.C. He had separated from M.D. and was at one time facing an assault charge.

She learned that he had overdosed in late 2015 and she had concerns about his drug use and his temper. [ 27 ] M.N. was, in my view, properly concerned about L.G.'s safety and wellbeing in March of 2016 but she went about things the wrong way. I am also not convinced that L.G. was bedwetting or having nightmares in his dad's home, but I share concerns about L.G.'s ears and about R.H.'s instability at that time. [ 28 ] Instead of making a court application to change primary residence, M.N. simply made arrangements for L.G. to stay in Alberta. She reported her concerns to the B.C.

Ministry for Children and Families but she did not discuss her plans or concerns directly with R.H. She attempted to enrol L.G. in school in Alberta and set up medical appointments for him there. [ 29 ] As discussed above, R.H. made application for return of L.G. and on March 24 of 2016, Judge Ritchie was satisfied that M.N. wrongfully withheld the child. M.N. still maintains that there was an agreement that she could have L.G. until the end of March 2016.

M.N. returned L.G. to R.H. pursuant to Judge Ritchie's order without police involvement, and his ear surgery was scheduled for mid- August 2016 when he was visiting M.N. in Alberta. His surgery was ultimately rescheduled for September 20th, 2016. [ 30 ] M.N. concedes that L.G. has a few good friends in R.H.'s trailer park and he is close to his four cousins in the Fraser Valley. However, she points out that L.G. has friends as well as relatives and cousins in Alberta. Since the court order of March 24, 2016 M.N. has seen L.G. for lengthy visits in June, August and December of 2016.

She still believed L.G. was skinny at that time and he was still bedwetting. She does not always get her three phone calls per week but I note she does have lengthy conversations with her son when the phone visits occur. M.N. denies that she did not cooperate with L.G. getting his Medical Services Plan coverage in B.C. [ 31 ] M.N. does take OxyNEO medication to deal with chronic pain, as well as Wellbutrin.

I have no issue with her prescription medication and the OxyNEO is a slow-release medication. [ 32 ] M.N. had some verbal agreement to pay R.H. $227 per month in child support but these payments have been sporadic. The $227 also is below the Child Support Guideline amount applicable to her income. I will address child support later in these Reasons, but M.N. has paid much of the transportation costs to exercise her parenting time and she has bought items directly for the child.

Nevertheless, she owns a nice house in Beaumont which is mortgage-free, whereas R.H. is struggling financially in B.C. with much more limited resources.

[ 33 ] M.N. also transferred the child tax benefit to R.H. in 2014 and since that time R.H. has not yet been receiving the child tax benefit, for reasons that are less than clear. [ 34 ] I have little doubt that M.N. could provide a good environment for L.G. in Alberta. Beaumont is a nice small town and she owns a four-bedroom home with her husband. The elementary school is in walking distance. Her husband can provide some daycare while he recovers from surgery and her son M. will be taking the babysitting course. If M.N. had primary care of L.G. she could bring him to B.C. often for R.H.'s visits.

R.H. could have extended parenting time at spring break and in the summer, as well as at Christmas. [ 35 ] M.N. does not get along with R.H.'s new partner K.H. but she appears to have a good relationship with R.H.’s ex-spouse, M.D. They have shared information about R.H.'s shortcomings. [ 36 ] On September 20th, 2017 M.N. provided some updated evidence. She now works in a daycare and as a residential cleaner. She anticipates earning $550 per month with the daycare and she earns $12.50 per hour working mornings as a cleaner. She may receive some employment insurance.

She hopes to go to school in the fall of 2018 to become a unit clerk in a hospital. [ 37 ] M.N. had L.G. in her care from June 30th to August 14th, 2017. They did a lot of outdoor activities but she was extremely concerned about L.G.'s behaviour. He was very disrespectful towards her. Most significantly, he was exhibiting self-harming behaviours. If he was frustrated, he would hit himself in the head and he once deliberately slammed his fingers in the trailer door. K.H. testified that L.G. had told her this finger slamming was an accident, but M.N. maintains that it was deliberate.

She also believes L.G. is afraid to talk to his father. [ 38 ] I have no expert evidence or assessment about L.G.'s recent behaviour with his mother. All I know is that no one in B.C. is reporting this sort of behaviour. I did not hear from L.G.'s teacher, but there is no prior school or counsellor report referring to this problem. Moreover, L.G.'s daycare provider Ms. N. has not seen this sort of behaviour. She has cared for L.G. recently and she says he is polite and well-behaved.

The parties have agreed to see if L.G. could see his prior counsellor, but R.H. has not seen the behaviours witnessed by M.N. [ 39 ] L.G. has gained a lot of weight, and as I stated earlier, each party blames the other for his condition. M.N. believes that R.H. is not having L.G. use his earplugs at the appropriate times such as when swimming; as well, she says L.G. comes to her dirty and his clothes do not fit properly. She has bought shoes and clothes for L.G. M.N. also became aware of a recent incident where R.H. got into an altercation with M.D.'s new boyfriend.

Although there are many versions of what happened, I am concerned that R.H. got into a conflict notwithstanding having taken some anger management courses. [ 40 ] I should add that I did listen to a number of phone calls between M.N. and R.H. which were recorded by M.N. without R.H.'s knowledge. While not encouraged by the courts, audio or video recordings of private conversations may be admissible subject to the general rules of evidence, see Mathews v. Mathews , 2007 BCSC 1825 . There is no doubt that R.H. easily became agitated and he lost his cool.

However, I was also concerned that M.N. knew how to push R.H.'s buttons. She attempted to engage R.H. in questioning after a phone visit with L.G. and this approach is not working. 2. B. N. [ 41 ] B. N. is M.N.'s mother-in-law and she lives in Morinville, Alberta which is 15 minutes away from Beaumont. She has observed L.G. at his mother's home in Beaumont and elsewhere. She describes M.N. as a calm and patient parent. She says M.N. and L.G. are inseparable. [ 42 ] When L.G. first arrives for a visit he seems scared, he wets his bed and he has nightmares.

When the visit is close to ending, L.G. is happier and more confident, however he cries saying that he does not want to go back to his father. [ 43 ] B.N. was also concerned that L.G. was malnourished. He was very skinny. As I have already said, the issue now is L.G.'s rather rapid weight gain. [ 44 ] In cross, B.N. conceded that she never actually saw the bedwetting. 3. Social Worker Mr. W. [ 45 ] Mr. W. is an experienced social worker with the Ministry in Mission, B.C.

On March 25th, 2016 the Ministry received a report that R.H. was neglecting L.G. because ear surgery had not occurred notwithstanding that it had been recommended for close to one year. There were also concerns about R.H.'s drug and alcohol consumption and his temper. The caller expressed that L.G. was afraid of his father. [ 46 ] In late June of 2016, Social Worker Mr. W. attempted to meet R.H. at his home but R.H. ended up yelling at him and telling him to leave the property. Although R.H. apologized the next day, Social Worker Mr.

W. was legitimately concerned that R.H. had gotten quite angry in front of his child. [ 47 ] Ultimately L.G. had his ear surgery on September 20th, 2016. However, Social Worker Mr. W. was still concerned about R.H.'s temper and possible drug abuse. R.H. was not initially cooperative about drug testing, and the Ministry was actually in the process of applying for a supervision order respecting R.H. However R.H. eventually did undergo drug testing in early 2017 with Social Worker Ms. C. so the supervision order application was put on hold. As well, L.G.'s teachers expressed no concerns about L.G.

There was a concern R.H. was not diligent about taking L.G. to speech therapy. [ 48 ] I understand that M.N. had made at least two complaints to the Ministry about R.H. That being said, I share Mr. W.'s concerns about the delay in the ear surgery and R.H.'S volatility. I am aware that R.H. had a better working relationship with a subsequent social worker, Ms. C. and I will examine her evidence as part of the father's case.

4. M.D. [ 49 ] M.D. is now good friends with M.N. and she is the former partner of R.H. M.D. separated from R.H. in the summer of 2014 and she and R.H. are the parents of a four-year-old-girl, Ma. R.H. usually sees Ma. every other weekend and on Wednesday evenings, but earlier his visits were supervised. [ 50 ] M.D. believes that R.H. is short-tempered when dealing with children. He regularly used marihuana but she was not personally aware of him using hard drugs.

M.D. is concerned that R.H.'s new partner, K.H., is involved in selling drugs. [ 51 ] In October of 2015, R.H. sent M.D. some text messages showing pictures of pills with messages stating "and there goes the rest" and "all gone goodbye". M.D. became aware that R.H. had consumed some pills, and he was hospitalized and had his stomach pumped. R.H. later indicated by email that he was diagnosed with antisocial personality disorder. [ 52 ] M.D. also described an incident when R.H. was under the influence of alcohol and he struck her. R.H. had taken Ma. from the house but the child was eventually returned.

R.H. was initially charged with assault. The matter was resolved by way of a peace bond in February or March of 2017. [ 53 ] M.D. has a number of concerns about R.H.'s parenting. He smokes and the child Ma. smells of smoke following visits. Ma. also had a bite mark and M.D. feels the child may be self-harming. She also says R.H. does not regularly pay child support. [ 54 ] In cross-examination, M.D. stated that R.H. has changed for the better. 5. Mr. N. [ 55 ] Mr. N. lives in Beaumont, Alberta and he married M.N. on September 26, 2015.

He has been living with her, M. and L.G., when he was there, since sometime in 2013. Like M.N., Mr. N. believes that they shared care of L.G. with R.H. from June of 2014 until September of 2015. In March of 2015 Mr. N. cared for L.G. as he had no work. He was a pipefitter but he is now a chef. He indicated that M.N. has paid for the majority of L.G.'s travel costs. [ 56 ] When R.H. separated from M.D., Mr. N. noticed a big change in L.G. L.G.'s hygiene deteriorated and he had some concerning behaviours such as swearing and throwing rocks at his brother. [ 57 ] In Beaumont, L.G. has his own bedroom and Mr.

N. can be available in the day to take L.G. to and from school. Right now, Mr. N. is concerned that L.G. does not spell or sound out words. [ 58 ] L.G. and M. have a very good relationship. They engage in outdoor activities and play video games. They play instruments in a family band. Mr. N.'s parents are one hour away in Morinville and L.G. has friends in the area. [ 59 ] Mr. N. testified that in March of 2016, L.G. came to visit with rags for clothes and he appeared malnourished. As I stated several times, the issue now is that L.G. has gained too much weight. THE FATHER'S CASE 1. K.

H. [ 60 ] K.H. is 27 years old and she resides in a trailer across the road from R.H.'s trailer in a mobile home park in Mission. She works in an accounting office for [deleted for publication]. K.H. began a relationship with R.H. after R.H. had separated from M.D. in December of 2014. She lived together with R.H. and L.G. for about one-and-a-half years, but now they each live in their own trailer and spend time together on weekends and evenings. [ 61 ] K.H. sees L.G. often and he has five close friends in the trailer park. He also spends a lot of time with his cousins.

L.G. enjoys riding his bike there and going to Hatzic Lake nearby. [ 62 ] K.H. denies ever selling drugs, although there is one historical text suggesting otherwise. She has not used hard drugs for many years but still uses marihuana several times per week. [ 63 ] K.H.'s phone is used for most of the communication between M.N. and R.H. L.G. speaks with his mother three times per week and the calls can be in excess of one hour. [ 64 ] During the week, L.G. is out the door at 6:00 a.m. to the daycare next door. He loves playing baseball on Tuesday and Thursday evenings, with practices on Saturday.

R.H. does most of the cooking and L.G. participates. L.G. also went to some cooking classes with his cousins. [ 65 ] K.H. further explained the many activities L.G. is involved with on the weekends. There are movie nights and game nights with neighbours. R.H. and L.G. enjoy many dinners and barbecues with R.H.'S two sisters and their children. [ 66 ] K.H. indicated that R.H. struggled financially when he was without work but now he has employment installing rebar.

K.H. and others assisted R.H., but M.N. provided little in the way of child support. [ 67 ] K.H. has never heard L.G. swear or make gang signs as alleged by M.N. She also says that as of May 2017, R.H. still consumed marihuana every other day but he had not used cocaine for a couple of years. According to K.H., R.H. has changed completely over the last year. He is more relaxed and focused. [ 68 ] K.H. had not yet moved in with R.H. when he overdosed on pills and had had his stomach pumped in October of 2015. He now has the support of his family doctor, his social worker and other services like counselling.

She emphasized that R.H. always got L.G. to

school. 2. Social Worker Ms. C. [ 69 ] Ms. C. has worked with the Ministry for 17 years. She took over R.H.'s Ministry file from Social Worker W. in February of 2017. She is of the view R.H. has turned a corner by being more accepting of Ministry involvement. [ 70 ] Social Worker Ms. C. visited R.H. in April 2017. L.G. appeared to be healthy and happy and the home was fairly tidy. One Ministry concern was R.H.'s marihuana use. He had been a heavy user and it was affecting his routine and his patience. He began working with the Mission Community Services therapist J.B. and abstinence was the goal.

R.H. underwent three urine drug screens which showed only marihuana use. R.H. now indicates he no longer uses marihuana. [ 71 ] A second Ministry concern was R.H.'s anger management. R.H. engaged in anger management with Triangle Resources and he took the Respectful Relations program as part of his peace bond conditions. R.H. also saw a family outreach worker. [ 72 ] The therapist, J.B., also had counselling sessions with L.G. and L.G. was seen as being well-adjusted. Ms.

C. stated that R.H. continues to work on anger management and I do note that despite all these interventions, he still had an altercation with M.D.'s new partner very recently. Social Worker Ms. C. also had a report that R.H. lost his temper with M.N. over the phone. [ 73 ] The family support worker has assisted R.H. with the child care subsidy and things such as a leisure pass and KidSport. The Ministry withdrew the application for a supervision order because of R.H.'s progress and positive conferences. [ 74 ] In cross-examination, Social Worker Ms.

C. indicated she was aware of K.H. and the fact that R.H. had been over at her trailer quite often. The important point was to keep the same routine and structure for L.G. in either home. A family support worker is assisting R.H. in ensuring a routine is followed. [ 75 ] The therapist, family support worker and Social Worker Ms. C. did not report L.G. smelling of cigarette or marihuana smoke. 3. D. C. [ 76 ] D.C. is R.H.'s sister and she has two boys, aged eight and 10 who attend the same school as L.G. D.C. knew M.N. and even provided daycare for M. and L.G. in the summer of 2010.

D.C. is the PAC President at [deleted for publication], and she sees L.G. daily at the school. She sees R.H. and L.G. regularly at family functions, often with her sister A.H. and A.H.'s twin sons. [ 77 ] L.G. loves baseball and sports, and he took a cooking course as well. She concedes that R.H. can get angry but he has come a long way. She has never seen R.H. get upset with L.G. and L.G. needs little discipline. At this time D.C. would call R.H. "in a heartbeat" to babysit her children. [ 78 ] D.C. was close with M.D., the mother of R.H.'s daughter.

She was aware that R.H. overdosed on some pills following his breakup with M.D. L.G. went home with her following that incident. [ 79 ] In cross-examination, D.C. says R.H. makes sure L.G. wears his earplugs if his head is going under the water. L.G. does receive a food package from the school called "blessings in a backpack". However, D.C. does not feel L.G. is dressed inappropriately. A lot of L.G.'s clothes have been passed on to him from D.C. 4. R.H., the father [ 80 ] R.H. testified as to much of the history of this matter as set out in the Background

section of this decision. He asserts that he fully opposed M.N.'s move with L.G. to Alberta in 2012. When the court approved the move he did see L.G. for two weeks every two months, with M.N. providing the transportation cost. [ 81 ] Although the order of Judge Point made December 30th, 2014 granted R.H. primary residence of L.G., he says he had L.G. in his care well before that date. In February of 2014, M.N. called him and indicated she could not spend sufficient time with L.G. and she suggested L.G. go live with him.

However, R.H. did admit M.N. had L.G. for three or four periods of three weeks each up to September of 2015 when L.G. started kindergarten. M.N. signed a form on March 12, 2015 stating that R.H. would be claiming L.G. full-time until the agreement was altered. [ 82 ] L.G. attended kindergarten at [deleted for publication] in September of 2015 and he continued to have the same friends in his Grade 1 class. R.H. lives 10 minutes away from the school.

The kindergarten teacher did not recommend speech therapy for L.G., but L.G. did have difficulty pronouncing words. [ 83 ] M.N. only paid child support sporadically in 2014, 2015 and 2016. She has paid very little in 2017. R.H. has helped out with L.G.'s travel to Alberta. In October of 2015, R.H. did take "too many pills". He was depressed at the time due to his breakup with M.D. and his difficulty finding work. He maintains that his stomach was not pumped. He had already regurgitated the pills.

The Mission Hospital did not feel he was suicidal, and he saw a mental health counsellor following the incident. [ 84 ] The court has already found that M.N. wrongfully withheld L.G. in March of 2016. Previously R.H. had agreed with M.N. that she could have L.G. in Alberta for an extended spring break which allowed for L.G. to miss one week of school here in B.C. R.H. met M.N. in Barriere to drop off L.G. While L.G. was away, R.H. came to learn that M.N. was not returning L.G. and she was attempting to register him for school in Alberta.

Once the court order of March 24, 2016 was granted R.H. borrowed money to travel to Edmonton to pick up L.G. [ 85 ] R.H. believes both M.N. and M.D. reported concerns to the Ministry, and he concedes the Ministry has helped him. Regarding the delay in L.G.'s ear surgery, R.H. maintains that the difficulties began in 2014 when M.N. still had L.G. in the Alberta health care

system. He could not actually get a B.C. health care card for L.G. until August of 2016. [ 86 ] The first ear surgery date in August 2016 was postponed because L.G. was on a visit with his mother on a houseboat. The ear surgery did take place on September 20th, 2016. I appreciate R.H. has reasons why the surgery took so long to occur, but it is clear to me that the surgery should have happened much earlier.

At that time in his life R.H. simply did not have the skills, resources and the tenacity to make the surgery happen in a timely way, and M.N. did not help the situation. [ 87 ] Insofar as drug consumption is concerned, R.H. admitted that he was using marihuana regularly to deal with back pain. He is now not consuming marihuana at all. He has tried synthetic THC pills in the past. Over 10 years ago, he did take some harder drugs. R.H. acknowledges that he was slow to agree to drug testing because he was not using hard drugs and he did not smoke marihuana around L.G.

The drug screens filed in this proceeding are positive only for marihuana metabolites. [ 88 ] R.H. has been working with community services worker S.B., who has helped him get further supports for L.G. R.H. is still not receiving the child tax benefit for L.G. He was expecting to share the child tax benefit in 2014 and receive it exclusively from 2015 onwards. [ 89 ] Concerning his relationship with M.D. and his daughter, R.H. does see his daughter every other weekend and Wednesday evenings. He acknowledges there was an incident in the summer of 2015 when there was some pushing and shoving between the parents.

This incident resulted in him being bound by a peace bond and he is taking the Respectful Relations course. He is getting advice from his counsellor J.B. as to how to best communicate with M.N. and M.D. [ 90 ] L.G.'s phone calls with M.N. occur three times a week and can run into L.G.'s bedtime. R.H. finds it difficult when M.N. insists on conversing with him directly. [ 91 ] L.G. is now in Grade 2 at [deleted for publication] and he likes school. He has many friends there and at the trailer park. These friends include Mo., the daughter of the daycare provider, and his cousins.

L.G.'s baseball equipment is funded by KidSport. R.H. does invite M.N.'s parents to certain games and for visits. I note that the November 2015 report card for L.G. indicated he was adjusting well to kindergarten and he was a bright boy who enjoyed learning. The April 2017 report card respecting Grade 1 indicates that L.G. is meeting expectations in speaking, science, PE and art. He is not yet meeting expectations in reading, writing and math. A May 9th, 2017 interim school report indicates that L.G. is always friendly towards others and he respects and cooperates with others. He is always giving his best effort.

He demonstrates self-control and is able to focus most of the time. [ 92 ] L.G. has a good time when he visits M.N. in Alberta, but R.H. has to remind him of the rules when he gets back. R.H. feels that L.G. sees some inappropriate video games while at his mother's home. L.G. was in Alberta for six weeks in the summer of 2017. R.H. says he was only able to have phone visits with him twice. He is concerned that L.G. gained too much weight while with his mother. [ 93 ] The Ministry file is now being closed, but R.H. still must complete a violence prevention course under his peace bond order.

The therapist J.B. had indicated to R.H. that counselling was no longer necessary for L.G., but R.H. is willing to have L.G. see her again given M.N.'s recent concerns about self-harm. R.H. says that L.G. shows no signs of self-harm while in his care. [ 94 ] R.H. did discuss the recent altercation he had with M.D.'s new partner, D.S. R.H. claims that D.S. struck him first but he agrees he kicked D.S.'s vehicle. He has volunteered to pay for any vehicle damage. It is R.H.'s position that D.S. was confronting him and saying he was a better father than R.H. was.

Regardless of who was at fault, this event was disconcerting given that R.H. was taking courses for anger management. [ 95 ] In cross-examination, R.H. agreed that L.G. has overheard at least one heated conversation between himself and M.N. He also agreed that he sold marihuana when he was in high school. He has been charged with some criminal offences back in 2008. Due to R.H.'s current work hours he does take L.G. to the nearby daycare at about 5:30 a.m.; however, L.G. goes back to sleep at the daycare. Further into cross-examination, R.H. denied that he recently sent L.G. to M.N.'s care with dirty feet. 5. V.

H. [ 96 ] V.H. is R.H.'s mother. She states that her daughter's children, P. and R., are very close to L.G. Her daughter D. used to live in the trailer park. V.H. has looked after L.G. often. L.G. likes to play outside and ride his bike. He also likes looking at himself in front of the mirror. [ 97 ] R.H. took over V.H.'s trailer and the daycare is three trailers over from their trailer. L.G. is extremely close to his aunts and uncles in addition to his father and K.H. In her opinion, a move now would not be good for L.G.

It takes a village to raise a child and that is what has been occurring for L.G. here in B.C. [ 98 ] V.H. acknowledged that her son has some issues with anger but he is provoked by both M.N. and M.D. V.H. has never heard L.G. swear and she has never seen any self-harming behaviours or bedwetting. 6. A. H. [ 99 ] A.H. is R.H.'s younger sister and she has twin boys. She sees L.G. often and L.G. is very close to his cousins. A.H. trusts R.H. to care for her twins "150 percent". [ 100 ] Years ago, A.H. consumed cocaine with M.N. but everyone has matured since then. R.H. has come a long way with his anger issues.

A.H. was concerned that L.G. was consuming junk food when she picked him up recently in Valemount. [ 101 ] In cross-examination, A.H. stated that R.H. last used cocaine three or four years ago. She has never heard R.H. speak badly of M.N. in front of L.G. and he encourages the phone call visits.

7. Family Support Worker, S.B. [ 102 ] S.B. works with Mission Community Services and he has provided support for R.H. since January of 2017. He has seen R.H. and L.G. at their home and L.G. appeared happy. He never saw L.G. scared in his father's presence. [ 103 ] S.B.is not directly dealing with R.H.'S anger issues as J.B. had that role. R.H. was a little resistant in dealing with S.B. at first, but he has responded well and the Ministry file is being closed. [ 104 ] When S.B first interacted with R.H., R.H. was smoking three to four marihuana joints per day. Now the plan is abstinence.

S.B. believes that R.H. suffers from anxiety and he is aware of some of the incidents where R.H. has lost his temper. 8. C.N. [ 105 ] C.N. is a friend of R.H. and she provides daycare for L.G. Her daughter Mo. is good friends with L.G. I allowed her to testify by phone, given exigent circumstances. C.N. has provided before and after-school daycare for L.G. since May of 2017. She also cares for her daughter, her two younger children and another boy. Her daycare is unlicensed. [ 106 ] C.N. testified that L.G. is better behaved than her own children. He is always polite.

She has never heard him swear or hit himself or other children. She has observed L.G. very recently. C.N. has L.G. from as early as 5:30 a.m. until he takes the school bus at 7:35 a.m. He returns at 2:25 p.m. and R.H. picks him up around 3:30 or later. Has there been a significant change in circumstances since the order of December 30th, 2014? [ 107 ] M.N. is seeking to vary the order granted December 30th, 2014 so that she would have the primary residence of L.G.

Before I can even embark on the variation application, I must be satisfied under s. 47 of the FLA if there has been a material change in circumstances since late 2014. [ 108 ] I agree with M.N.'s counsel that there have been a number of material changes for L.G. since December of 2014 and those changes are as follows: 1. R.H. is no longer in a relationship with M.D. and in fact there is contentious litigation between them. M.D. had assisted R.H. in caring for L.G. and now that is no longer the case. However, K.H. does help care for L.G. now and L.G. has daycare right in his neighbourhood; 2.

M.N. is in a stable relationship with Mr. N. in Beaumont, Alberta. Her prior relationship in Alberta was short-lived but her marriage to Mr. N. and the house in Alberta are significant new factors in her favour; 3. R.H. has been involved with the Ministry. That has actually been a positive for R.H. Although he has anger issues, he now has been seeing a counsellor and he has taken the Respectful Relations course. Nevertheless, it remains a concern that he is bound by a peace bond concerning M.D. and that he has had recent occasions when he has lost his temper.

R.H. has also worked with the Ministry on his marihuana usage. His difficulties in dealing with stress date back to at least the overdose in October of 2015; 4. L.G.'s ear surgery finally took place in September of 2016 but for a variety of reasons that surgery was far too delayed. [ 109 ] Overall, I am satisfied there has been a significant change in the circumstances of L.G.'s life since the order of December 30th, 2014. [ 110 ] I now must analyze what is in this boy's best interest, bearing in mind that M.N. is also seeking a relocation of his primary residence.

L.G.'s best interests in the context of a relocation application [ 111 ] As I said in the Introduction, this is a difficult case. Both parents love L.G., but they live in different provinces, a vast distance from each other by road. Mr. N. offers L.G. a nice home near Edmonton with his brother. R.H. has provided L.G. a home in Hatzic with the support of many friends and relatives, as well as Ministry services. [ 112 ] Because M.N. plans to relocate L.G. and vary an existing order, Division 6 of

Part 4 of the Family Law Act applies. Specifically, s. 69(4) of the Family Law Act governs, as the parties do not currently have substantially equal parenting time. R.H. has primary residence and L.G.'s school is here in B.C.

Therefore, if M.N. can satisfy me that the proposed location was made in good faith and that there are reasonable and workable arrangements to preserve the relationship between L.G. and his father and others in B.C., I am to consider the relocation as being in L.G.'s best interests unless R.H. satisfies me otherwise. [ 113 ] I am fully satisfied that M.N.'s proposed move of L.G. to Alberta is made in good faith. She already lives in Alberta with her husband and her older son M. She has concerns about her earlier decision to allow L.G. to live with his father. Her concerns are not without foundation.

L.G.'s ear surgery was very delayed, R.H. has shown some volatility, and his relationship with M.D. has ended. However, I am of the view M.N. has failed to recognize the gains R.H. has made, and she minimizes the significance of L.G.'s current living arrangement. [ 114 ] I am somewhat satisfied about M.N.'s proposed arrangements to preserve L.G.'s relationship with his father and others here in B.C. I acknowledge that M.N. is really suggesting a reversal of the parenting time such that R.H. would see L.G. for holiday periods and certain long weekends.

However, R.H. does not have the same financial resources as M.N. M.N. proposes that she will bring L.G. down to the Lower Mainland as some of her family is here, but there have been some issues about R.H.'s visitation while L.G. is in M.N.'s care. [ 115 ] During M.N.'s recent six-week summer visit, R.H. only spoke to L.G. twice by telephone. More importantly, I do have to bear

in mind that this court has previously ruled that M.N. wrongfully withheld L.G. in March of 2016. That finding is all the more concerning given that M.N. had faced a non-removal application at an earlier time. [ 116 ] Based on that history, I find that M.N. has some tendency to act first and then attempt to get permission later. [ 117 ] The real issue in this case is determining L.G.'s best interests. Undoubtedly, either parent in this case could provide L.G. with a loving home. I must engage in a careful analysis of the factors set out in s. 37 to decide which home is best for L.G. at this time. (

a) L.G.'s health and emotional wellbeing [ 118 ] While in his father's care, L.G. finally got his ear surgery in September of 2016, but it took too long. R.H. says that M.N. was not cooperating with L.G.'s Care Card; but in any event, it was his responsibility to see that surgery happened earlier than it did. [ 119 ] That being said, L.G. now has no major medical issues and his father ensures he wears his earplugs if his head goes underwater.

I am confident R.H. would deal with any medical issues for L.G. in a more expeditious manner than he has in the past. [ 120 ] Significantly, L.G. was seen by a therapist, J.B., and he was found to be well-adjusted. I realize M.N. says L.G. displays self- harming behaviours while in her care, but the therapist, the daycare provider, Social Worker Ms. C. and the school have not seen this behaviour. The daycare provider has had recent contact with L.G. This daycare provider says L.G. is better behaved than her own children.

The school report cards are generally positive and indicate that L.G. demonstrates self-control. [ 121 ] At one time, M.N. thought L.G. was too skinny but now she says L.G. has gained too much weight. In turn, R.H. claims that M.N. feeds the boy too much junk food. L.G. may be a little heavy at the moment, but I note he is active in the trailer park and he participates in baseball. [ 122 ] I am not very troubled about L.G. being dirty or wearing poorly fitting clothes. He is a young, active boy in a rural environment.

His father has limited financial resources and M.N. has an aversion to paying him regular child support. Other people and agencies have assisted R.H. L.G. is involved in KidSport, and he occasionally gets food from school as "blessings in a backpack". Many of his clothes are hand-me-downs. [ 123 ] In the past, L.G. may have been negatively affected by some of R.H.'s behaviours. During R.H.'s overdose in late 2015, one of his sisters cared for L.G. and it must have been a time of upheaval. However, at present many witnesses observe a loving and happy relationship between father and son.

This has been observed not only by relatives, but by the family support worker and Social Worker Ms. C. I appreciate that R.H. still has anger issues, but L.G. has not been exposed to most of those incidents between R.H. and M.D. or M.N. (

b) L.G.'s Views [ 124 ] L.G. is only in Grade 2 so he is too young to express an opinion about what is best for him. (

c) and (

d) The nature and strength of relationships between L.G. and others and the history of L.G.'s care [ 125 ] Both sides of the family have strong bonds to L.G. L.G. is close to M.N. and he has long telephone calls with her. He loves his brother M., although there have been some conflicts. He also is close now to Mr. N. and his extended family. Likewise, L.G. is very bonded to not only his father but also his aunts, uncles, cousins and grandparents here in B.C.

His daycare is right in his neighbourhood and his school is close by. [ 126 ] It is important to place L.G.'s relationships with others in the context of the history of his care. It is true that M.N. was initially the primary caregiver, but L.G. has lived with his father for the last several years. His community is the trailer park, the nearby daycare and school, his friends and cousins. I realize K.H. is not living in R.H.'s home, but she too has played a positive role in L.G.'s life. It is no small matter to tear L.G. from this environment. (

e) and (

f) The child's need for stability and the abilities of each guardian [ 127 ] R.H. is rough around the edges and he has limited education, however he has made great gains with the assistance of the Ministry. He has reduced or ended his consumption of marihuana and the family support worker has helped him establish better routines. The Ministry file is closing. He is taking anger management courses but his temper is still a work in progress. [ 128 ] I conclude that R.H. has come a long way and he is now able to provide L.G. with stability, notwithstanding his shortcomings.

Quite frankly, I was more concerned about L.G.'s stability in 2015 and early 2016 when R.H. ended his relationship with M.D. [ 129 ] Little L.G. has seen a number of caregivers come and go, including M.D. and I assume M.N.'s first partner in Alberta. M.N. is a capable parent living in a nice home in Alberta. Her abilities are not really in question, although I have noted that she discounts any gains made by R.H. and she has provided inadequate child support. [ 130 ] My greatest concern is M.N.'s plan.

It would take L.G. away from all he has known in B.C. and I am not convinced he would simply adjust as she suggests. (g) (

h) and (

j) The impact of family violence and family or criminal proceedings on L.G.'s safety and wellbeing [ 131 ] R.H. is bound by a peace bond concerning M.D. and that undoubtedly affects his relationship with her and their daughter. However, R.H. has never been violent with M.N. At worst, he has raised his voice in anger during telephone calls but this occurs only after she insists on speaking with him despite his reluctance to do so. I accept that R.H. has an anger management issue, but his counselling and the Ministry intervention has helped. Only M.N.'s side of the family thinks L.G. is actually afraid of his father. That is not what Social Worker Ms. C. or the family support worker observed.

[ 132 ] Ascertaining the best interests of L.G. are no easy task, but when I carefully weigh all the factors above, I am satisfied that the status quo should prevail. R.H. has his issues, but he has come a long way and he now provides L.G. with a happy, rustic existence in Hatzic. [ 133 ] I place particular emphasis on objective evidence from the school report cards, the social workers and the family support worker. My decision is a hard one because I know M.N. could also provide L.G. with a good home in Alberta.

However, her proposal necessitates for L.G. a change of home, of school, of daycare, of sporting activities and of close friends and relatives. [ 134 ] For all the above reasons, M.N.'s application to relocate L.G. is dismissed. I encourage R.H. to continue providing M.N. with generous parenting time. CHILD SUPPORT AND RETROACTIVE CHILD SUPPORT [ 135 ] Going forward, the parties appear to agree that M.N. will only earn $15,500 in 2017. This income consists of employment with [deleted for publication], employment insurance, babysitting and cleaning.

M.N. may earn about $31,200 in 2018 but she also plans to return to school that year. For the time being, M.N. should be paying current child support of $143 per month based on the Alberta Child Support Guidelines . The parties should exchange tax returns each year. [ 136 ] Retroactive child support is a much more contentious issue.

In 2016 and 2015, M.N. earned in excess of $50,000 per year whereas R.H. earned a marginal income until he found employment with [deleted for publication] in late 2016. [ 137 ] M.N. has made it clear in her evidence that she did not want to pay much child support to R.H. directly as she did not trust that he would use the money for the child. There was also no court order requiring her to pay child support. [ 138 ] This was a wrong-headed approach and it was contrary to the presumptive rule under s. 3 of the Child Support Guidelines.

Child support should be paid regularly and directly to R.H. as he is the primary caregiver for L.G. and responsible for L.G.'s food, clothing and lodging. [ 139 ] Payments in kind may not be considered child support because it is inappropriate for the payor parent to pick and choose what child expenses will be covered.

I would also add that any agreement between the parties to have M.N. pay child support below the Guideline amount is not necessarily binding, as child support is the right of the child not the parent. [ 140 ] As to the matter of travel expenses, it is unlikely that M.N. can use the undue hardship provisions under s. 10 of the Child Support Guidelines to reduce her child support obligation.

While it is true that unusually high expenses in exercising visits may cause a parent to suffer undue hardship, the undue hardship claim must be denied if the payor's household has a higher standard of living than the household of the other party. See s. 10(3) of the Child Support Guidelines. [ 141 ] M.N. has a spouse who works, another child M., in a home which is mortgage-free. R.H. has no legal spouse, has another child, Ma., and lives in a trailer park.

I was not given all the information necessary to precisely compare the standards of living of the parties' households, but I can safely assume M.N. had a higher standard of living for at least 2015 and 2016. I would also note that the February 21, 2013 order required M.N. to pay all travel costs. Although that order was cancelled on December 30th, 2014, there was no new order shifting the obligation to pay travel costs to R.H.

R.H. has assisted with travel on several occasions. [ 142 ] All that being said, I am of the view I can consider the travel costs in a shared custody regime under s. 9 of the Child Support Guidelines. Travel costs are an "increased cost of shared custody arrangements." under s. 9(b). [ 143 ] In 2014, the child support issue is most unclear. I have no income information for R.H. M.N. did earn $51,483 in Alberta. She paid R.H. $3,087, but $1,164 of that figure was a transfer of the child tax benefit. She also claims to have made one cash payment of $227.

I understand M.N. had to later repay the government the child tax benefit she received. [ 144 ] In any event, the court order is not varied to give R.H. primary residence until December 30, 2014 and his own application does not seek retroactive support prior to that date. Clearly, the child was in some sort of a shared custody regime under s. 9 when I look at the 2014 year as a whole. [ 145 ] Based on all these factors, I consider the payments made by M.N. sufficient for 2014. [ 146 ] In 2015 R.H. had a reported income of $2,663 whereas M.N. earned $51,849.70.

Even based on R.H.'s evidence, the parties did share care of L.G. in 2015 up to the time he started kindergarten in September. R.H. indicated that M.N. had care of L.G. for several periods of three weeks each. I also am of the view that R.H. earned a greater self-employment income than indicated on his tax returns, but his income was likely below the threshold for child support. [ 147 ] Ordinarily, M.N. would be required to pay child support of $423 per month for 2015 based on the Alberta Guidelines.

For the first nine months of 2015 I am willing to discount that amount to $300 per month, given the s. 9 shared custody regime and the travel costs she has incurred. [ 148 ] M.N. says that she averages $200 a month in travel costs, but I am not prepared to discount her child support to that full extent given R.H.'s difficult financial circumstances at that time and my discretion under s. 9. [ 149 ] The full $423 per month is properly payable for the last three months of 2015. M.N.'s total obligation for 2015 is therefore $3,969 plus her payments of $1,018 (which includes one cash payment of $227).

The net obligation for 2015 is $2,951. [ 150 ] As discussed above, I am not bound by any alleged verbal agreement for M.N. to pay $227 per month. [ 151 ] I should add that the decision by the Supreme Court of Canada, S.(D.B.) v. G.(S.R.) , 2006 SCC 37 , permits me to award

retroactive child support back three years before formal notice was given. In these circumstances, formal notice was given on April 22, 2016; however, M.N. was well aware of her obligation to pay child support since 2014 when she began to pay some child support albeit at a too low and too irregular basis. [ 152 ] In 2016, M.N. earned $53,893.50 in Alberta. There was no sharing arrangement of L.G. so her Alberta Guideline amount was $442 per month, which is a total of $5,304 for 2016. R.H. earned $8,077.68 which I suspect is low, but his income is not relevant in 2016.

M.N. paid R.H. $1,320.50 so that leaves $3,983.50 owing for the 2016 year. [ 153 ] As discussed above, M.N. would not succeed on an undue hardship claim concerning travel expenses. [ 154 ] Up to October 2017, M.N. is presumed to earn $15,500 which produces an Alberta Guideline amount of $143 per month. The total support obligation up to and including October 2017 is $1,430 less $460 paid to date in 2017.

The net balance owing for 2017 is $970. [ 155 ] Therefore, the total retroactive support from 2015 to October 2017 is $7,904.50. [ 156 ] Based on the above analysis, my orders are as follows: [ 157 ] M.N. is found to be a resident of Alberta and is found to have a gross annual income of $15,500. [ 158 ] M.N. will pay to R.H. $143.00 per month for the support of the child L.G. born [deleted for publication], commencing on November 1, 2017 and continuing on the 1st day of each and every month thereafter, for so long as the child is eligible for support under the Family Law Act or until further court order. [ 159 ] For as long as the child is eligible to receive child support, the parties will exchange: (

a) copies of their respective income tax returns for the previous year including all attachments, not later than July 1st of each year; and (

b) copies of any Notice of Assessment or Reassessment provided to them by Canada Revenue Agency, immediately upon receipt. [ 160 ] M.N. shall pay to R.H. retroactive child support for the period from January 1st, 2015 to October 1st, 2017 in the total sum of $7,904.50. [PROCEEDINGS] [ 161 ] R.H. shall take L.G. for an eye exam and dentist appointment by the end of October 2017 and provide text or email confirmation to M.N. of those appointments. [PROCEEDINGS] [ 162 ] R.H. shall provide M.N. with the name of all L.G.'s current care providers by email or text by no later than the end of October 2017. [PROCEEDINGS] [ 163 ] The parties shall attempt to reach an agreement on M.N.'s parenting time, travel costs, communication and counselling.

In the event they cannot reach an agreement, either party is at liberty to apply before Judge G. Brown regarding all of those issues. (ORDER CONCLUDED)