N.M.J. v. D.C.G. Date:, 2015 BCPC 148

Citation: N.M.J. v. D.C.G. Date: 20150602 2015 BCPC 0148 File No: 14509 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: N.M.J. APPLICANT AND: D.C.G. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE BIRNIE Counsel for the Applicant: I. Lawson Counsel for the Respondent: W. DeWolfe Place of Hearing: Smithers , B.C.

Date of Hearing: May 12, 14 and 15 2015 Date of Judgment: June 2, 2015 [ 1 ] NMJ and DCG are the mother and father of BG. BG is now eleven years old. He currently lives with his mother NMJ in Stewart, B.C. Stewart is a very small community of approximately 500 people on Hwy 37A in north-western B.C. It is about 4 ½ hours by road from the nearest community of any size - that being Terrace. [ 2 ] BG has been struggling with an anxiety disorder and an attachment disorder for a few years now and over the last three years has not being going to school regularly. This is a source of concern to both of his parents.

His father DCG, who now lives in the Smithers area, is of the view that BG needs to move from Stewart to live with him so that he can take steps to get him back into a school routine. DCG has applied to have the primary parenting time and parenting responsibilities for BG. His mother says that BG should continue to live with her and that she is taking all reasonable steps to ensure he gets an education and to help him cope with his anxiety. [ 3 ] NMJ has applied for an increase in the child support payable by DCG retroactive to 2012.

In her application filed in August 2014 she also applied for an order that DCG have no contact with her or BG; however she has not pursued that application at this hearing or brought any evidence to suggest that such an order is necessary. [ 4 ] I have heard testimony from NMJ and from DCG. I have reviewed the medical records, MCFD (Ministry of Children and Family Development) records, school records and Child and Youth Mental Health records in Exhibit 6 tendered by agreement of both parties.

I also ordered and have received and reviewed an s. 211 Views of the Child report of BG’s wishes and thoughts on a move for him. Facts: [ 5 ] BG was born on [omitted for publishing] . He was conceived during a period when NMJ and DCG had separated. They then reconciled but separated again when BG was almost 3 years old. NMJ left the Smithers area where they had been living and returned to Stewart with BG and his sister who was then about 13 years old. She returned to Smithers within the year when BG was four and lived here until he was 7 years of age when she returned to Stewart.

At that time BG would have been going into grade two. [ 6 ] When NMJ lived in Smithers with BG after she separated from DCG, BG saw his father on weekends and spent the weekdays with his Mom. He has a loving relationship with both of his parents. Since he returned to live in Stewart over four years ago he sees his father on long weekends - approximately once per month - and for a longer period in the summer - a week or two - plus a longer visit over the Christmas break. His father comes to Stewart and picks him up and drives him back to where he is living in Telkwa.

BG sees his older brother JG (1) on these visits, as JG (1) also lives with their father, and also his sister who lives in Smithers and his niece E, JG (1)’s daughter. He gets on well and likes to spend time with his siblings and niece. Up until a year ago DCG would visit with BG at NMJ’s home in Stewart. [ 7 ] BG started school while he was living in Smithers. He attended Kindergarten and grade 1 in Smithers. Neither of the parties spoke much about his early years in school but I rely on the report of Dr.

B, which is found in Exhibit 6, Tab C, p. 47 to the effect that BG was initially somewhat withdrawn and shy at school but gradually blossomed and participated in class activities, worked independently, played with other children and progressed in his learning through to grade 3. [ 8 ] He had ongoing health issues with his tonsils and adenoids which caused him to miss some school and according to NMJ this became more of a problem for his school attendance because he developed sleep apnea. From the school records set out in exhibit 6 and from Dr.

B’s report it appears however that he did not start missing significant amounts of school until 2012 - 2013 - his grade four year, which was after his tonsils and adenoids were removed. By January 2013 he had missed 75 % of his school days. This trend continued through the past two years in grade 5 and 6 when he has missed upwards of 50% of school each year. [ 9 ] The reasons for this non-attendance were explained by NMJ as:

a) up to September 2012 his ongoing problems with tonsils and adenoids and sleep apnea and his recovery from surgery for those issues in late summer or early September 2012,

b) his general anxiety and difficulty in separating from his mother, which manifests as refusals to go to school, temper tantrums, fighting and biting her at times when she tries to force him, bouts of vomiting or dry retching,

c) his boredom with the school curriculum,

d) problems with his sleep pattern including that he cannot go to sleep without his mother lying down with him and then his needing 12 hours of sleep, waking up late and being very tired,

e) from time to time other physical ailments including some periods of encopresis in the fall of 2013 and then again in 2014 when he was constipated and not cleaning himself properly. In addition he often has poor personal hygiene and will refuse to shower, or change his clothes or brush his teeth for a week or more at a time. [ 10 ] Starting in about 2012 NMJ worked with the local school to try and develop a program for BG which would allow him to go to school when he could manage it but to have work provided for him to do at home when he could not.

She became very frustrated with the school as she felt they were not willing to accommodate BG’s needs. At one point he was placed on a combination distance education program and school attendance program. From the school’s perspective it appears the teachers were having difficulty making

any progress with a student who was away more often than he was at school. NMJ’s view was that the school had an obligation to provide an education for BG and she continued to advocate for him in this regard. [ 11 ] The bottom line has been that BG has continued to miss a great deal of school, and the school has not been able to evaluate his learning. The distance education program which was in place at times over the last two years in grades 4 and 5 has not been consistently utilized.

Ultimately NMJ took BG out of school this past March and as of the week prior to this hearing had enrolled him in a distance education program through [omitted for publishing] in Smithers. As of this hearing that program had not started. Her hope is that she will coordinate social activities with BG and nine other children who either do or plan to attend the same distance education program.

I do not know the ages of these children or whether they are peers of BG. [ 12 ] Over this same time period and prior to it commencing in about 2012 NMJ has taken BG to a number of medical professionals to deal with her concerns about his behaviour and his anxiety. She was concerned in 2010 when BG was 6 years of age that he might have seizure disorder as this runs in her family. She also felt his language and socialization were delayed and was concerned about him having tantrums and possible seizure like spells. BG was seen by Dr. H, a paediatric neurologist at BC Children’s hospital in February 2010. Dr.

H was of the opinion that he was not having seizures and that the behavioural issues should be managed by time outs and perhaps some counselling to help the child with internal stressors. [ 13 ] BG was seen by Dr. M, a paediatrician in Smithers in August 2011. At this time NMJ was concerned that BG had autism like behaviours. Dr. M was of the view that the child was not autistic, was not demonstrating a loss of language, socialization or development or any intellectual impairment but did have an anxiety disorder. [ 14 ] He was seen by another paediatrician, Dr.

A, to whom he was referred by his family doctor, (Dr. K in Stewart), in August 2013. At this time BG was very sensitive to noise and touch and was fussy about his food, tolerated change if prepared in advance and tended to be quite rigid in his thinking. Dr. A again felt the underlying cause of his behaviours was anxiety and not autism. The child was very anxious, dependant on NJM and could not sleep alone. [ 15 ] In March of 2013 BG was scheduled to attend an appointment with Dr. M with both of his parents so that Dr. M could make a referral for a full autism assessment.

As BG was ill NMJ did not want to drive him to Smithers from Stewart and asked DCG to go to the meeting on his own. He did so and after this meeting Dr. M apparently felt that there was a real concern about BG not going to school and he asked the Ministry of Children and Families to look into the situation. He was not prepared to make an autism assessment referral at that time, though he ultimately did make the referral at the father’s further request. [ 16 ] The Ministry involvement, not surprisingly, caused upset to the family.

DCG understood the Ministry wanted him to go and pick up BG and return with him to the Smithers area, but for whatever reason the Ministry did not follow through with their insistence on this, leaving NMJ quite upset, and DCG confused about what was going on. [ 17 ] The Ministry did an investigation in 2013 and determined that BG was not in need of protection but that it would be helpful to connect the family with Child and Youth Mental Health to get some counselling for BG so as to get him back on track in terms of school and day to day behaviours such as sleep and hygiene.

To this end SD, a Child and Youth Mental Health counsellor in Terrace met with NMJ and BG, and did an initial assessment in July 2014. She then conducted a number of counselling sessions with both BG and NMJ or just NMJ herself. BG was to see her every two weeks. However since Ms. D was in Terrace some of these visits were to be via video. BG did not always want to attend these sessions and as of December 2014 it appears from Ms. D’s notes that she had met with BG less than six times. All of the other sessions were with NMJ only.

Interestingly, at the last meeting she had with BG which I could find reference to, in November 2014, BG denied feeling anxious at school but said he was bored. He said when he stays home from school he watches movies. He was looking forward to a Christmas visit with his father and siblings and said he did not feel anxious when he was with them. [ 18 ] In the meantime, BG was sent to Dr. B, a registered psychologist, for a full autism assessment in the summer of 2014. Dr. B provided a report in early September 2014. He concluded that BG does not have autism spectrum disorder.

He is a bright child with average intelligence in some areas and high average to superior intelligence in other areas. He has very strong nonverbal intellectual ability and it is unlikely that learning difficulties are the cause of his school avoidance. BG has significant problems with anxiety and is lacking in emotional and practical independence. He needs ongoing therapy to address his anxiety and to address his dependency issues with his mother.

While his re-entry into school needs to be planned and possibly start with small steps this should not be delayed. [ 19 ] The goals that SD worked on with NMJ and BG, were having BG sleep in his own room and having him attend school. She advised NMJ that she felt it was very important that BG go to school and not be home schooled as being at home would exacerbate his anxiety about going out into the world.

She recommended that he have structure and routine, that if he was at home he be expected to do school work and that he not receive any rewards for refusing to attend - by which I assume she included not being permitted to stay home and watch television or movies. These recommendations were expressed to NMJ in response to NMJ having advised her in December 2014 that she was pulling BG out of school because the school as not addressing her concerns regarding BG’s education. [ 20 ] Ms. D’s involvement appears to have come to an end in early 2015 and another worker has taken over.

As of the mid May of this year BG has seen this new counsellor once. Also as of this hearing date in mid-May, over a year after this counselling began, these goals have not been accomplished. NMJ had, after a couple of months, organized a second bedroom for her to sleep in and eventually was able to have BG go to sleep with her present and then she would leave the bed and go to her own room. Prior to the hearing, however, this had regressed to co-sleeping in the sense that she goes to sleep with BG and then goes to another bed in the same room.

She says this is because he feels anxious because of this court matter and he cannot get an adequate sleep unless she is there. [ 21 ] NMJ was not able to get BG onto a routine either to go to school regularly or to be monitored in the home and to do school work when he did not attend school. He spends four to five hours a day in front of a screen, ( i.e. computer, or television /movies). She agreed in cross examination that she has not been able to maintain a hygiene

schedule for BG as she drops it when he becomes too anxious, because at that point it seems counter-productive to her. [ 22 ] In early 2013 BG’s school teacher advised his doctor that BG was normal when at school and that they had not seen any

obsessive behaviour at school. The child was clingy and whiney when his mother was there. BG was able to learn and played normally with other children though he did show some anxiety when he returned to school after a prolonged absence.

In late January 2014 his class teacher stated on his report that when he is at school he is a calm and pleasant child who finds it difficult to fully participate because he has missed much of what the class has already covered in relation to various activities or discussions. [ 23 ] NMJ has not been able to be at home with BG on a consistent and predictable basis because her work opportunities have not been consistent. Since October 2014 she has had work one week per month doing long shoring - and three days or evenings a week doing cleaning.

She feels that with the [omitted for publishing] School distance program they can work at it three weeks out of each month and in this way accommodate her work schedule. [ 24 ] NMJ feels that despite Dr. B’s report BG does in fact have high-functioning autism and that this diagnosis was not made because the diagnostic criteria for autism changed just prior to his assessment.

I gathered that she feels a proper diagnosis would have made services and supports available to BG which are currently not available - though it is not clear to me what these services would be. [ 25 ] NMJ is also concerned that she not be seen as the cause of BG’s problems and that his struggles be understood as a function of who he is and not of who she is or of how she has parented him. She feels that she is the one who really knows BG and with whom he can really be himself and express his insecurities.

She is therefore the parent who can truly advocate for him as she has the most complete appreciation of his needs - which he may mask with others.

She is concerned that DCG doesn’t think BG has any special needs and that he will not be able to cope with the child or provide him with the help he needs and in particular to advocate for his needs within the school system. [ 26 ] She stated a number of times throughout her testimony that she is at a loss on a number of fronts: - what the underlying cause or causes of BG’s problems are, - how to get the school system to provide him the help and accommodation he requires, - how to get the necessary medical diagnosis and treatment for him.

At one point she asked, (in a rhetorical sense) - how one could get a child with no homework skills through high school, and stated that she had advocated for all of her children but once a child hits puberty there may be “no more you can do”. [ 27 ] As a witness I found that it was hard to get a straight answer from her - i.e. rather than answering a question she would go off on a tangent of some issue or concern or difficulty she was having regarding BG - often related to what the school system or medical system or someone else was not providing for him.

This may well be because she has been so immersed in these issues that she feels there aren’t really any answers - there is only a circle of problems. [ 28 ] NMJ has also sought counselling to assist her in coping with BG and to deal with her own issues. She has been diagnosed with complex post-traumatic stress disorder and a seizure disorder. She is under a doctor’s care and is undergoing cognitive behavioural therapy which she started in the Spring of 2013. [ 29 ] DCG is 53 years old. (I note that NMJ is 49 years old).

He and NMJ met when he was 19 and she was 15 and were together until their separations prior to and then after BG’s birth. During their relationship she was home with the children and he worked a lot, often in camp jobs to get the family ahead financially. He has had a drinking problem in the past but quit drinking entirely four years ago attending AA to help himself with this. Around the same time he was suffering from depression and worked his way through that with some medical advice. [ 30 ] He currently lives in a two bedroom cabin near Telkwa - just over five hours by road from Stewart and close to Smithers.

He is employed at the [omitted for publishing] in Houston, where he currently works steady graveyard shift from midnight to 8:30 a.m. His older son JG (1), who is now about 27 years old lives with him.

He has been working toward purchasing a house in Houston and was in a position to get bank financing for this a year ago, but did not go ahead with this as he used his financial resources instead on this case. [ 31 ] He has a good relationship with his two older children, JG (1), who has lived with him for the last two years and JG (2) who lives in the Smithers area. (I note that it appears NMJ also has good relationships with both JG (1) and JG (2)). [ 32 ] When NMJ moved back to Stewart in 2010 he spent his parenting time with BG in Stewart at NMJ’s home for quite some time.

He would work for 12 days and then take two off and go to see BG. On three occasions he did not make it up for three months at a time because he had vehicle problems. Since last May he has stopped having parenting time in Stewart and has picked BG up and brought him to Telkwa. On a typical weekend he would pick him up on Friday in the early afternoon and drive him back to Smithers. He would then go to bed as he would not have slept since the day before and BG would watch a movie and then go to bed. Their routine is to get up at 7:30 - 8:00 in the morning.

BG showers either when they arrive at his place or the next morning. They stay busy doing activities such as swimming, bowling or local hikes and window shop for things BG is interested in such as four wheelers or computer games. JG (1)’s daughter E who is about 6 years of age is with them a lot and BG also sees his sister JG (2) for whom he has a “huge affection”. He has about three hours a day of screen time, usually watching one movie or playing Minecraft. [ 33 ] His home is early to bed and early to rise. BG has had one poor night’s sleep in the last year. He has melatonin for BG if he needs it.

BG takes this regularly to help with sleep when he is at home in Stewart but had not taken it at his dad’s until this one incident of poor sleep. [ 34 ] He agreed that BG had had health issues commencing when he was very small, starting with the tubes in his ears being blocked and the enlarged tonsils and adenoids. BG started talking late and loved really loud noises and he feels this is likely because he couldn’t hear well. BG was also diagnosed with asthma when he was about five years of age. After his surgery for the adenoids and tonsils he felt things would improve but then the issue of autism came up.

[ 35 ] He does believe BG has behavioural issues. He has always been shy and withdrawn, though he feels BG is getting better with this as he ages. He did have a problem with eye contact when he was younger but this largely dissipated after his older brother explained to him that he needed to look at people so he wouldn’t bump into them. [ 36 ] He observed one occasion when BG and E were pestering each other and got into a fight in the vehicle and struck each other with BG hitting first. BG would not talk to him about this and he ended up calling NMJ for advice.

He feels that BG has spent too much time alone and has not had to learn to deal with being poked or prodded by another child when he is tired or out of sorts. [ 37 ] He feels a huge part of BG’s uneasiness is that he has not been around other children enough. He has seen BG throw temper tantrums, about 5 - 6 times but has not seen this since BG got his tonsils out when he was almost 9 years old. He saw this as a typical angry child, saying “No” and being defiant and not wanting to listen to the adult.

This has only happened when NMJ was present and not when he is alone with BG. [ 38 ] BG does like hugs around his Mom and around his sister, when he has not seen her for a while. He has seen BG display anxiety but this appeared to him to be the normal anxiety about trying something new. He cannot think of an instance when there was anything abnormal and BG has always been willing to try new things, such as four-wheeling or biking. [ 39 ] He has spoken with SD about the anxiety issue and at her suggestion went to the Anxiety BC website for information.

He has some concern about BG’s weight and is also concerned that he may be depressed as it seems to him that it is harder to get BG excited about things. Where he used to be excited and keen about things he is now more likely to respond with “oh yeah, or oh well” to a suggested activity. He feels that they should look into this. [ 40 ] BG showers and brushes his teeth when he is visiting him and there have been no problems with his hygiene.

BG does not refuse to do what he is asked. [ 41 ] He has always wanted to have BG live with him but after his separation from NMJ he went through a depression and it would not have worked for him to have BG. After he quit drinking he began to work toward getting better housing as he began to feel BG would be better off with him. In the Spring of 2013 after the visit with Dr. M things came to a head. He and NMJ had discussed the school absenteeism before and he had accepted what she told him - that BG was not in school because he was sick so often.

He had understood BG was on correspondence which he would take to school and then bring the books home if he was sick. He had always felt NMJ was more intelligent than he and I gather he felt she was managing the situation. [ 42 ] It was around this time he decided that BG was not going to start going to school on a regular basis unless he stepped in and had the child come to live with him. He feels that BG needs as much social interaction as possible so as to learn to deal with people, both good and bad.

School provides this - so this is where BG should be. [ 43 ] He was not told that BG had been taken out of the local Stewart school or that he had been enrolled in a distance education program with the [omitted for publishing] School. He has received no communication from NMJ regarding either BG’s health or schooling in the last year. [ 44 ] He has been to the elementary schools in both Telkwa and also in Houston, (where there are two public schools). One of the public schools in Houston has a high provincial ranking. His plan if BG comes to live with him is to move to Houston.

He will rent if he cannot buy a house. He has spoken with his employer and can get his shift changed to 11:00 p.m. to 7:30 a.m. so that he can be available to get BG off to school in the morning and be there for him after school and in the evening. He would arrange to hire someone to sleep at the house with BG as he thinks it likely JG (1) would not move with him as his daughter E is now enrolled in school in Smithers. [ 45 ] He is unsure how far behind BG is in school but thinks he will need to be enrolled again in Grade 6.

If BG refuses to go to school and behaves with him as he has been behaving with NMJ then he has the option of taking six months leave on a short term disability to deal with such a crisis and would just need a doctor’s note that BG needs 100% parental supervision. He would follow SD’s advice to make it as uncomfortable at home as possible in the sense BG’s home

schedule would be like his school schedule. He would have a work station for him and he would do school work all during the school day with the usual breaks. He would sit with him if necessary to accomplish this. [ 46 ] SD’s advice to him was that she felt it would not take long for BG to decide that school is the better option as there is more chance of having fun at school. He said that it may well be miserable initially for BG but that it needs to be tried as it is important that he get an education. [ 47 ] He would deal with BG’s sleep needs by getting him to bed early and keeping him active during the day so he is tired at bedtime. He feels BG needs to have a

schedule that is adhered to because this will help him with his anxiety as he will know what to expect. [ 48 ] He wants to help BG deal with his problems and would have BG attend counselling so that he can learn the coping skills he needs. He has spoken with Dr. M who has told him he would be happy to see BG and he assumes that through Dr. M they can sort out what kind of help BG needs. He would consult 100% with NMJ and keep her informed. [ 49 ] He says it is important for BG to know that both his parents love him and want what is best for him.

BG loves his mother very much and there should be unlimited access and contact between them as long as BG does not regress in his schooling. If she continued to live in Stewart she should have parenting time on long weekends and all available holidays. He feels BG could handle this transition and that he needs to be pushed a bit - though he agreed it would not be easy. He also agreed that BG may be hiding his anxiety when he is with DCG. He thinks BG’s biggest fear would be a new school. If BG comes to live with him he would want it explained to BG as a plan that would happen later in the summer.

This will give him some time to get used to the idea and in the meantime he can work on the distance education program NMJ has proposed. He and BG already have a plan to go camping on Haida Gwaii this July for a week. [ 50 ] DCG was a calm, thoughtful and straight forward witness. While he feels NMJ is not parenting in BG’s best interests because

of the schooling issue he does not appear to bear any anger or resentment toward her. BG: [ 51 ] BG was interviewed by a Family Justice Counsellor in Terrace in mid-March. He was described by the counsellor as polite and calm and said he liked math, art and science in school but not social studies. He likes playing Lego and video games with friends and also playing computer games and browsing the internet. He gave mixed messages about school saying he liked it and was doing well and also saying it was boring.

At the time of the interview he thought his Mom would try to enrol him in the school in the neighbouring community of Hyder, across the border in the U.S. if he continued to live with her. [ 52 ] BG said he likes visiting his dad and looks forward to him moving to Houston so he can have his own room. While he would like to spend more time with his father he spoke of his mother as the “person that raised me” and sees her as the person he can turn to if he is worried about things. His preference is to stay living with his Mom but to see his dad more often.

He described his relationships with both of his parents as good. [ 53 ] He described playing with three other children in Stewart. This was confirmed by NMJ. Two of these children are siblings and she said that over the last year she had set limits on the time he spent with them because she felt their mother was using her as a babysitter. Best Interests: [ 54 ] In determining what parenting time and parenting responsibility regime is in BG’s best interests I must consider:

a) his health and emotional well- being,

b) his views,

c) his relationships with the significant persons in his life,

d) the history of his care,

e) his need for stability at his current age and developmental stage,

f) the ability of NMJ and DCG to exercise parenting responsibilities, and

g) the appropriateness of arrangements requiring guardians to cooperate on parenting responsibilities. There are no family violence concerns in this case. [ 55 ] Counsel for NMJ argues that given his anxiety issues stability is a key for BG and it is far too risky for him to move both away from his mother and away from his home community at this time. He submitted that NMJ is the person who really knows BG and can be responsive to his needs.

She is going in the right direction with BG, is seeking professional assistance as required and has now put in place a promising plan for his schooling and socialisation. [ 56 ] Counsel for DCG submits that while there is a risk in moving BG and that such a move will not be easy for him initially, there is a greater risk in leaving him with NMJ in Stewart as there is no reason to believe that the latest education plan will be any more successful than what has been going on for the last three years.

He needs the socialisation he can get in school and needs an adult who can provide consistency and routine so that BG can learn to deal with his anxiety and to separate from his Mom in the context of another secure and loving relationship. [ 57 ] BG has loving relationships with both of his parents. He has been raised primarily by NMJ and his relationship with her is a complex one characterised by Dr. K in a note he made of a conversation with Dr. B in October 2014 as “pathological”.

As a non- medical person I interpret this as meaning that BG’s anxiety and difficulty in separating from NMJ is causing him real problems in his day to day life. He is not going to school and hasn’t attended in any regular and meaningful way for three years. How far behind he is in his learning is unclear. He spends a great deal of time each day in front of a computer or TV screen and has no regular activities with other children or out in the community. [ 58 ] He appears to feel secure with DCG and enjoys and looks forward to their time together.

While it may be that he is masking his anxiety when he is with his father - he appears able to do this, at least over the short term. He does not have tantrums or refuse to shower or change and is able to get sufficient sleep when he is with DCG.

He is also able to spend time with his older brother and sister when he is with his father and these are important relationships to him. [ 59 ] While it is clear that stability is an important factor for BG, so also is a predictable daily routine involving school attendance and providing essential opportunities to socialise with and learn to manage his anxiety in the company of his peers. I accept the opinion of SD that home schooling is not a desirable option for BG and the opinion of Dr. B that it is important for BG to be reintroduced to regular school attendance as soon as possible.

He stated that last September when BG was ten years old. BG is now eleven and will be twelve in September - and if he does not get back into school within the next year I am concerned that it will become even more difficult for him once he reaches adolescence. [ 60 ] Despite what I accept are NMJ’s best efforts she has not been able to manage the kind of predictable routine that BG currently needs and in my view her plan to have him home schooled is not in his best interests right now.

The counselling services BG needs are not available in Stewart and the option of receiving counselling via video has not been particularly effective. [ 61 ] DCG has a solid and realistic plan for BG. He knows a transition out of Stewart and away from his Mom will be difficult for BG and he does not take this lightly. He intends to make use of counselling services in the Smithers area and is connected with a

paediatrician who has cared for BG in the past. He is alive to BG’s needs for predictability and routine and is able to

schedule his work so as to be available to BG both before and after school each day and in the evening. He will be able to take an extended period of time off work if necessary to transition BG into school and to help him manage his behaviour if this is a problem. [ 62 ] BG wishes to remain in Stewart with his mother and this is understandable given his anxiety and his attachment - in fact his over attachment to her. However, I think it is essential for BG, (and for NMJ) that he learn to manage his attachment issues with her before he is an adolescent - a time which is fast approaching.

The only relationship which offers him a place of love and security from which to take on this task is with his father. While I agree that there is a risk inherent in moving BG to his father’s care at this time I think there is a greater risk to him in not making this move. I also see a move to live with DCG as the only viable plan for getting him back into school. [ 63 ] I find that it is in BG’s best interests that he live with DCG and as DCG suggested this should commence at some point in the summer when BG has had time to get used to the idea.

I think it is very important that BG not see the move to live with DCG as some sort of negative consequence. Both parents must explain this to BG as a positive move, even if, (as will likely be the case with NMJ), they do not see it this way. It is important that BG not perceive this change as a negative reflection on NMJ or on him and his behaviour, and it is vital that both NMJ and DCG ensure that they speak only in positive terms about each other to BG.

I trust that difficult as this change will be for NMJ that she will also take steps to manage her own anxiety so that it does not create an additional hurdle for BG. [ 64 ] The order then regarding parenting time and parenting responsibilities is as follows: - Commencing by August 1, 2015, unless a date later in August 2015 is agreed by the parties, BG will live with DCG who will have primary parenting time.

DCG will also have parenting time with BG during the second week of July as they have a camping trip to Haida Gwaii planned for that time period. - NMJ will have parenting time with BG every long weekend from Friday evening to Monday evening and also one month in the summer and one week over Christmas each year and such additional or other parenting time as agreed by the parties. - Both parents will exercise the day to day parenting responsibilities in s. 41(

a) of the Family Law Act during their parenting time and during her parenting time NMJ will exercise the parenting responsibilities in both s. 41(

e) relating to medical care and 41(

h) regarding consent, as reasonably necessary. NMJ will also have the rights set out in s. 41(

j) to request and receive health, educational or other information regarding BG from third parties. - DCG will exercise all the parenting responsibilities set out in s. 41. He must consult with NMJ regarding educational and health-related decisions but if they are unable to agree then he will make those decisions. If NMJ is of the view that any of these decisions are contrary to BG’s best interests she may apply to the court to have the decision reviewed. [ 65 ] NMJ’s application for a no contact order is dismissed. The interim conduct orders of December 1, 2014 are terminated.

I have heard no evidence to suggest that such orders continue to be necessary. Child Support: [ 66 ] On March 22, 2007 NMJ and DCG attended court without counsel and agreed to a consent order regarding custody, guardianship and child support for BG and his older sister JG (2). An income of $54,000 per year was imputed to DCG and he was ordered to pay $425.00 per month for each child. There was no provision in this order for him to provide income information to NMJ on a yearly basis and the order does not refer to how the payments should change in relation to his income.

He made the required payments from the date of the order until JG (2) turned 19 and was no longer in school. He then continued to pay for BG in the amount of $506 per month. In fact he made payments to NMJ for JG (2) for a period of about 20 months when JG (2) was not living with NMJ. [ 67 ] Since 2007 DCG’s income has increased primarily because of the amount of overtime work he does.

His base salary is $56,000 per year, however from 2012 to 2014 his gross income and the amount of child support payable according to the Guidelines has been as follows: 2012 - $67,000 ($624.00 per month) 2013 - $76,000 ($711.00 per month) 2014 - $83,000 ($776.00 per month) He described the current overtime situation as “fragile” and that if BG is to live with him he will be taking far less overtime as he will be going right home at the end of his shift rather than taking on extra work. [ 68 ] He received notice of NMJ’s application to increase child support in August 2014.

There is no evidence that at any time prior to this she advised him that she felt he should be paying more support or that she was having any difficulty managing to provide for BG’s needs. I am satisfied that DCG has willingly paid his child support. He testified that he was unaware that the Supreme Court of Canada had issued a decision clarifying that a payor of child support is expected to increase that support if his or her income increases. I accept his evidence in this regard as I see no reason to assume he would have known of this obligation.

He did not have counsel when the initial order was made and there was no reference in that order to any ongoing requirement to adjust his maintenance payments. Nor did he receive any indication from NMJ that the amount he was paying was insufficient to meet BG’s needs. [ 69 ] DCG has had costs to exercise his parenting time with BG. Until last Spring he was driving to Stewart approximately once per month, visiting with BG there and then returning to Telkwa. Since last Spring he has driven to Stewart, brought BG to Telkwa and then driven him back to Stewart, again approximately once per month.

DCG testified that the fuel costs for a round trip from Telkwa to Stewart are about $260 (for four tanks of gas). Since last Spring he has been paying about $520 per month in order to see BG.

[70] The principles which apply to the making of retroactive child support awards are set out in the decision of the SCC inHiemstra v. Hiemstra and the three other appeals decided at the same time, reported at 2006 SCC 37 , [2006] 2 S.C.R. 231. [71] The principles are that a judge must take a holistic view of the circumstances in a given case and balance the need for certaintywith the need for flexibility and for fairness to the children involved in light of:

a) The reason for the recipient parent’s delay in seeking increased child support,

b) The conduct of the payor parent,

c) The past and present circumstances of the children,

d) The children’s’ needs at the time the support should have been ordered, and

e) Whether a retroactive award might entail hardship. [72] There was no reason provided for NMJ’s delay in seeking an increase in child support. DCG has paid the support he wasordered to pay since 2007 and has borne the access costs for his time with BG.

Those access costs at least since 2012 have been greaterthan the difference between the amount he was required to pay for the income he was earning and the amount he was actually payingunder the 2007 court order. [73] There is no evidence to suggest BG has been in need in any material way or that he has gone without any services or activities inthe last few years. [74] DCG’s currently needs to find a house to either buy or rent in Houston so that he can provide for BG. He will in all likelihoodbe earning less money commencing sometime this summer when he takes on fulltime parenting responsibilities.

I understood from histestimony that it has taken him some time to be in a position to borrow from a bank in order to purchase a house because at some point inthe past number of years he had declared bankruptcy. For these reasons I find that a retroactive award might well entail an element offinancial hardship, a hardship which would be visited upon BG. [75] Taking a holistic view of the circumstances for the parties and in particular:

a) DCG’s access costs, particularly the increase in those costs since the Spring of 2014,

b) the absence of any unmet financial need for BG,

c) the lack of any notice to DCG by NMJ until August 2014, and

d) DCG’s current need to put his resources toward housing for himself and BG, [76] I find that a retroactive award of child maintenance is not appropriate in this case. NMJ’s application for a retroactive variationin child support is dismissed. ____________________________ C. Birnie Provincial Court Judge