A.S. v. R.W. Date:, 2015 BCPC 99

Citation: A.S. v. R.W. Date: 20150421 2015 BCPC 0099 File No: 14966 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: A.S. APPLICANT AND: R.W. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Appearing on their own behalf: A.S.

Appearing on their own behalf: R.W. Place of Hearing: Kamloops , B.C. Date of Hearing: November 24 - 27, 2014, February 19 and 20, 2015 Date of Judgment: April 21, 2015 [ 1 ] There are a number of applications back and forth between the parties. The children of this relationship are C.W., born [omitted for posting], and R.W., born [omitted for posting]. In short, A.S. wants the children to have their primary residence with her. She maintains that R.W. is not a guardian of R.W., but she would like R.W. to have contact time with him on a two-week and one-week

schedule where R.W. is with her for two weeks and R.W. one week. For the time being, A.S. wants parenting time with C.W. suspended until the very significant issues between C.W. and her father have been resolved. A.S. would like the orders with respect to mandatory telephone calls to be terminated with respect to both homes. A.S. is also opposed to outside “interference” in that she does not want to have a parenting coordinator for the poor communications between herself and R.W. or a counsellor for her daughter, C.W.

A.S. also wants all of the parental responsibilities. [ 2 ] R.W. wants to return to the arrangement they had before he moved away to Alberta for a brief period of time. R.W. claims that he is a guardian of R.W. and wants a confirmation of that. He wants communications to be done by text or e-mail until a level of trust is built between the parents. He is in agreement with the appointment of a parenting coordinator. He insists that the telephone calls must be set by court order or he will not receive any. He wants counselling for C.W.

He wants the parental responsibilities to be apportioned equally between the parents. [ 3 ] C.W. was born on [omitted for posting] and is 14 years old. R.W. was born on [omitted for posting] and is seven years old. These children are very fortunate in that they have two parents who care for them very much to the point that the financial disputes between them were barely discussed during the course of this trial. All of the focus was upon the children themselves and their best interests. They are also fortunate that they have valuable familial connections in R.W.’s mother, and A.S.’s new partner and his family.

These two parents are blessed with having children who are not only good athletes but good students and, with the exception of the rift between C.W. and her father, are very close to all of the members of their family. Guardianship [ 4 ] A.S. and R.W. met and began their relationship while both were living in Williams Lake. I will address their history and issues more fully in these Reasons. In the course of that relationship, C.W. was born. After they separated but before they moved to Kamloops, R.W. was conceived. R.W. was ultimately born in Kamloops.

He was two and half months early but, after a slow start, he is now doing well. According to A.S., they were not living with R.W. when R.W. was born. According to R.W., he was still living in the home but was planning to move out. This is only relevant because A.S. claims that R.W. did not live with R.W. at the time of his birth and therefore is not a guardian. [ 5 ] However, there is no dispute that the parties did move in together for a period of time after R.W. was born.

R.W. has also lived with his father for various periods of time, both before R.W. went to Alberta to work in 2012 and after he returned when they were enjoying a one week with dad - two weeks with mom rotation. [ 6 ] The Family Law Act , s. 39 provides as follows: 39

(1) While a child's parents are living together and after the child's parents separate, each parent of the child is the child's guardian.

(3) A parent who has never resided with his or her child is not the child's guardian unless one of the following applies: (

a) section 30 [parentage if other arrangement] applies and the person is a parent under that section; (

b) the parent and all of the child's guardians make an agreement providing that the parent is also a guardian; (

c) the parent regularly cares for the child. [ 7 ] On a plain reading of s. 39(1), the parents either must be living together or, having lived together, then been separated. The

section does not specifically provide that the child’s parents had to live together both before and after the child was born, nor indeed does it provide any guidance as to whether the relevant time is at birth. In a case such as this where the parents dispute whether R.W. lived with A.S. at the time that R.W. was born, but did live with A.S. and R.W. for a period of time subsequently, the question is whether the

section is broad enough to make R.W. a deemed guardian. In A.S.’s evidence, R.W. had been living with her right up until essentially the eve of R.W.’s birth then not again for some years after. R.W. never lived with R.W. on his own in that time period. R.W.’s evidence is that he did live in the home when R.W. was born, but moved out soon after. His tenant of the time corroborates his evidence. On the other hand, both parties agree that sometime after R.W. was born, R.W. and A.S. cohabited again for a brief period of time. [ 8 ] I accept that R.W. lived with A.S. at the time of R.W.’s birth.

Even if he did not, he did live with A.S. and R.W. for a period of time soon after R.W. was born. I find that the

section is broad enough to include when the biological parents have lived together with the child regardless of when in that child’s life they did so. [ 9 ] Subsection (3) only applies if a parent has never lived with a child. How long a parent must live with a child is not defined. The corollary is that a parent who has lived with the child for however long is deemed a guardian. Again, in a situation such as A.S. and R.W.

find themselves, even if R.W. had not been living with A.S. at the time of R.W.’s birth, he has lived with his child and A.S. not only since his birth, but subsequently on the various parenting time arrangements he and R.W. have had. I find, in any result, that R.W. is a guardian of R.W. Parenting Time Issues [ 10 ] A.S. said that R.W.’s parenting time with the children has been sporadic, unreliable and inconsistent. This was particularly so after R.W. moved to Alberta for work in 2012. Up to that point, R.W. had only started having the children over night after he and A.S. separated for the last time after R.W. turned two. He had the children for the amount of time that his

schedule permitted. In the summer of 2011, R.W. had a knee injury and was off work for some months. He asked for more parenting time with the children and A.S. agreed. R.W. then left for work in Alberta in August, 2012. The arrangement, according to A.S., was that R.W. would work for two weeks in Alberta and then have the children at home in Kamloops for one week. A.S. said he did not honour this

schedule while he was away and that there was a significant communication problem. She felt left in the dark with respect to when he would be available to parent the children. He was unresponsive to her texts. She said that his access was short notice and disruptive to her and her family. Even on R.W.’s evidence, which I will come to, he was inconsiderate of A.S.’s time and self-serving of his own needs. [ 11 ] By that time, A.S. and the children were living with S.P.

A.S. and S.P. are now married. [ 12 ] R.W. described a volatile relationship starting back before C.W. was born, when he and A.S. started living together. They fought often. After moving to Edmonton for a period of time, the fighting became worse. A.S. moved back home to Williams Lake without notice to R.W. He returned to Williams Lake as well but the fighting continued. He went back and forth to Alberta for work. In the fall of 2005, R.W. took a job at the mill in Williams Lake. A.S. told him she wanted to move to Kamloops and he agreed.

They decided, although they were separated, that they would move to Kamloops and live together until they had established themselves. [ 13 ] R.W. said they moved to Kamloops in the summer of 2006 and lived in a house in Westsyde. He said they continued to live there until R.W. was born in 2007. The fighting continued and he said they were not clear with each other whether they were going to continue in a relationship. He decided to move out because of the fighting. [ 14 ] R.W. said the agreement originally was that he would take the children three days a week to fit with his schedule.

In the summer of 2009, he and A.S. were getting along better. They were more or less living together again. In January, 2010, she moved into his place. She moved out three months later. There is a dispute about why they moved out, which is not relevant to these proceedings except to say that the fighting persisted. [ 15 ] The parties had numerous complaints about the conduct of each other during the period of time leading up to A.S. moving in with S.P. R.W. said he was pleased when she entered into this relationship. He acknowledges that they were supportive of his move to Alberta.

R.W. was decidedly vague about how much time he did see the children during the time he lived in Alberta. He claimed his

schedule was “messed up”. Sometimes he would be gone a month and sometimes he would be gone five days. He had a number of explanations with respect to why he would not be home for his designated parenting time. What he did not provide was evidence that he in any way consulted with A.S. or kept her informed of his travel issues. It is not enough to have an excuse no matter how valid for not being available to exercise the responsibilities of the parent.

Each parent must be respectful of the other parent’s parenting time and be respectful of keeping each other fully informed of anything that may interfere with parenting time. R.W. failed to do so in a significant way. [ 16 ] In the meantime, C.W. was becoming older, more settled in her mother’s home, and very busy with her academic and athletic schedule. She began to have typical conflicts with her father because of the significant differences between each household. In the dramatic way of some teens, C.W. felt that she was treated like Cinderella in her father’s home.

She resented going to his place just to have him disappear for hours on end, leaving her to babysit her brother. She and her brother appear to be close but she did not want to be his keeper. She also felt that her father insisted she had to clean up his place. Whether this was because he had greater expectations of her contributions to normal household chores than her mother had, or whether he truly was abusing his parental role to have her clean his home for him is not resolved on the evidence.

Be that as it may, C.W. felt unsupported in her father’s home and was over-supported by her mother in this view. [ 17 ] C.W. started to isolate herself more and more in her room while she was at her father’s home. Her mother did not discourage this behaviour when her father complained of it. While R.W.’s conflicts with his daughter are his problem to resolve, he should reasonably expect that A.S. will work in a positive way to help in resolving that problem. A.S. feels that she has.

I find that she has been encouraging of C.W.’s often inappropriate behaviour which has served to further damage the relationship between C.W. and her father. Having said that, I find that R.W. has taken a stubborn and self-pitying approach to this rift between himself and his daughter. His victimized attitude has done little to address the problem and a lot to make it worse. [ 18 ] Ultimately, R.W. and C.W. began to have significant communication problems. C.W. would come home crying and report to her mother that she was not going to return to her father’s home.

R.W. observed that C.W. was also being unnecessarily mean to her brother. This is a behaviour that A.S. did not observe in her home. It may well be that C.W. was taking out her frustrations with her father on her brother, who was not having difficulties with his father. [ 19 ] On the final visit C.W. had with her father, R.W. texted A.S. that C.W. was not going to return to his home until she had some counselling so they could sort out their relationship. This was an ill-advised text to send, was misinterpreted by A.S., and has driven R.W. further away from his daughter.

A.S. has also not been fair in managing this conflict. She has characterized the text as saying that C.W. is no longer welcome at her father’s home. That is not what the text said, but it is certainly what she has communicated to the other supports in C.W.’s life. It has caused considerable harm. [ 20 ] C.W. is, while a good athlete and a solid academic student, a bit immature for her age. She has absorbed this characterization by her mother and used it to justify rude behaviour.

The supports in C.W.’s life believe the characterization that A.S. has given R.W.’s text and have further reinforced C.W.’s behaviour as a result. While the behaviour of S.P., A.S. and C.W.’s extended family have done nothing to help this situation, it must be remembered that the rift between R.W. and C.W. is the making of the two of them, and not

anyone else. C.W.’s behaviour, R.W.’s attitude, and their stubborn persistence in their respective feelings is the paramount cause of this rift. [ 21 ] C.W. has taken the original rift and focused on her father’s actions in the past to further justify her position and her behaviour. For instance, R.W. has on occasion not shown up to give her a ride from school. She has been forced to walk home. That his home is within walking distance of the school suggests to me that both C.W. and A.S. are magnifying a largely irrelevant factor to justify C.W.’s behaviour.

Looked on in the broader picture, C.W.’s complaints pale in comparison to real issues: she does not want to walk home from school; she does not want to babysit her brother; she does not want to do housework. [ 22 ] R.W. was largely overlooked in these proceedings. A.S. said he looks up to C.W. and they are very close. He is intelligent and polite. He too is active in athletics. R.W. does not have the same issues with his father, although A.S. has tried to suggest that he does. Similarly, R.W. is fearful that A.S. is manipulating R.W.

Just to highlight how inaccurate these parties’ perspectives are, I will refer to the events leading up to the preparation of the Views of the Child Report. [ 23 ] In her evidence, A.S. said that she saw R.W. arrive for the interview with R.W. He was walking ahead of R.W., not holding his hand while they crossed the street. It should be borne in mind that R.W. was seven and does not need an adult to hold his hand while he crosses the street. In any event, C.W. reported to her mother that R.W. was confused why he was even there for the interview.

A.S. said she had told R.W. previously why he was going but complained that R.W. had not refreshed R.W. about it. In her submissions, though, A.S. expressed the view that R.W. told R.W. what to say in the interview. It cannot be both. This is entirely internally inconsistent with her allegations in her evidence. It is this mistrust between the parties that prevents them from communicating in a rational way. [ 24 ] The Views of the Child Report was prepared by Karen Fenton based upon an interview she conducted of the children in October, 2014. In it, Ms.

Fenton revealed that C.W. told her she does not want to be involved with her father at this point in her life. She wants the discretion to initiate contact when she is ready in the future. She claimed to Ms. Fenton that she sees her father at exchanges for parenting time with R.W. and responds civilly to his text messages. This is not true. C.W. is not prepared to reinvest anything in re- establishing the relationship with her father. [ 25 ] When pressed by Ms. Fenton to elaborate the issues she had with her father, she offered that it started with a small disagreement and escalated to a “big blow out”.

She repeated that she felt used as a babysitter, and was often disappointed by what she claimed were her father’s false promises and dismissive attitude toward her priorities. She claimed he cancelled plans without explanation, which led her to doubt his reliability. She does not want to be yelled at by him and resents him insisting on her going to counselling. She feels he needs to address his anger and find more appropriate ways to communicate. [ 26 ] In this respect, C.W. is correct. Yelling is not an appropriate parenting method.

When plans are made, children should be able to rely on parents to carry them through. Promises should not be broken. R.W. should be more respectful of C.W.’s priorities, including her academics, her own choice of friends, and her athletics. If he expects to repair his relationship with C.W., he must show his support for these priorities. [ 27 ] While I did not find R.W. to be particularly angry in his approach to these proceedings, he was certainly belligerent.

He seemed incapable of reflecting on how he must present to his children if they see him as unreliable, angry and disrespectful of their needs. [ 28 ] R.W. told Ms. Fenton that he is not sure why C.W. does not come to his father’s home anymore. Despite R.W. believing that A.S. prevents R.W. from making phone calls or receiving phone calls where it concerns his father, R.W. told Ms. Fenton he is able to speak to the other parent on the phone. He seemed unsure if there was ever a problem asking permission to do so. Finally, he told Ms.

Fenton that staying with his mother for two weeks and his father for only one was not fair. He was unable to come up with a different solution because his father works out of town and is not available. He did not reveal any of the problems that either R.W. or A.S. believe exist in his young life. In short, they are imposing problems where they do not seem to exist. [ 29 ] What really needs to happen is for A.S. and R.W. to communicate respectfully with each other. They need to appreciate that each household is separate and will have its own routines and expectations.

However, they also need to be respectful of the routines and expectations in the other household. They need to speak respectfully about each other and to put the interests of the children ahead of their own interests. Both homes are entirely appropriate for the children. The parents need to accept this. [ 30 ] None of the issues that were raised, apart from this rift between C.W. and her father, were anything that would determine ultimately the issue of whether R.W. should have a lot of parenting time or a little parenting time.

I will not delve into all of them but select some by way of highlight. [ 31 ] There is the issue of R.W.’s smoking. R.W. has complained that his father smokes a lot of cigarettes. R.W. comes home smelling of cigarette smoke and coughing. C.W. reported to her mother from time to time that her father smelled of cigarettes. This seems to be in association with hugging. Apparently, C.W. has complained that her father’s home is dirty and smells of smoke. R.W. said she had never complained to him. R.W. admitted that he smokes.

Whether he smokes in the house or the car, or around the children, he must now acknowledge that they do not like the smell, do not want to hug him when he smells of cigarette smoke, and at least R.W. is suffering from the effects of being around cigarette smoke. [ 32 ] Counselling became another significant issue related to the rift between C.W. and her father. R.W. insisted C.W. have counselling. A.S. felt that C.W. did not need counselling. Clearly, C.W. and her father, being unable to resolve their differences, required counselling assistance. A.S. did not support this despite signing a consent order.

Her attitude served to undermine any benefit that might have been achieved through that counselling. While it is clear that the counselling was made by way of consent order, C.W.’s supports have been left with the impression that R.W. forced C.W. to do that counselling. Whether those supports received that impression from C.W.’s

interpretation or directly from A.S. is not relevant. It was A.S.’s role to ensure that C.W. understood both parents were supporting the counselling and to further ensure that the supports did not undermine that position. [ 33 ] Ultimately, C.W. stopped going to counselling because she felt she was doing all the work. A.S. felt that the counselling was pushing C.W. further away from her father. Certainly if A.S. was not supporting the benefits of counselling, and in fact was feeding

C.W.’s resentment of it, there would not be a positive outcome. If R.W. was not taking concurrent counselling, then the counselling was doomed to failure anyway. This is not C.W.’s behavioural problem. It is a communication problem between C.W. and her father. Both parties need to work on this. [ 34 ] R.W. seemed to expect A.S. to take care of the arrangements for counselling and he would pay for them. This is R.W.’s issue; it was R.W.’s responsibility to ensure that counselling happened. Certainly part of the problem is A.S.’s view about counselling. She feels that it is a last resort.

She also felt that teens do not want to speak to counsellors. I think that most of the counsellors in this town would find that a stunning revelation. A.S.’s attitude has not helped to use the counselling to its best benefit. With C.W.’s views now so firmly entrenched, I do not see the benefit to ordering counselling at this time. [ 35 ] Another issue highlighted by the children is R.W.’s lack of reliability. This seems to be focused around him promising to do certain things with them, and then changing plans.

While it is certainly expected that plans can change, R.W. needs to understand that parents must be reliable. The reliability issues with him are not life altering but do govern not only the expectations his children have of him but the amount of time they want to be with him. For instance, when R.W. says he will be at a volleyball game, he needs to be there. When he tells his son he is going to take him sledding, he needs to take him sledding. It is understandable if sledding becomes impossible because of weather, injury or illness.

However, fun activities promised to the children should not be changed because a parent no longer feels like doing it or has a better social offer. [ 36 ] The children also need to be able to rely upon when their father is going to see them. If he says he is going to have the children on a particular day, he needs to be there to pick them up to have that visit on that day. There has been a history of missed parenting time and late alterations to parenting time. Whatever frustrations this may give to A.S., it causes greater damage to R.W.’s relationship with his children.

They need to know that they will see him, when they will see him, and that their plans are not going to change. Certainly there are things that happen in life unexpectedly. However, there seem to be an extraordinary number of these in R.W.’s history. [ 37 ] On the evidence, I can see that there is also an issue with R.W. being engaged in those parts of his children’s lives that are important to them. These children are involved in a lot of activities. Everything from swimming to soccer to volleyball occupy their young lives.

There are no end of practices, games, or tournaments R.W. can attend to show his support and interest in their lives. Historically, he has made little effort to participate. Granted, he works in Alberta. However, their stepfather also works out of town. When S.P. is in town, the children know he is there and he attends their events.

R.W. has to know that they see by their stepfather that it is possible for a parent who works out of town to be fully engaged in their lives when he is in town. [ 38 ] R.W. has complained that A.S. only gives him the schedules for events that transpire when he is out of town and does not tell him about those that are in town. The fix for this is simple. When A.S. signs up the children for swimming, she can tell R.W. what day and time they have swimming. If the children are with him, it is his obligation to get them to those swimming lessons.

If they are not with him, and he is in town, he can show support for them by showing up to the lesson anyway. Swimming lessons may not be particularly engaging, but there is immeasurable value to be gained from greeting the child at the end of the lesson and saying “job well done”. [ 39 ] If C.W. is playing school volleyball, he may be able to go onto the school website to obtain the schedule. A.S. should also be providing him with the full

schedule once it is known to her. However, nothing stops R.W. from contacting the school or the coach himself to be added to any e-mail list that might be available or to at least obtain the schedule. If C.W. is playing club volleyball, A.S. should be providing R.W.’s e-mail information to the team manager so that the team manager can add him to the e-mail list and communicate the

schedule to him once it is known. If R.W. expects to repair his relationship with C.W., he needs to make every effort to attend the games and tournaments that do not conflict with his work time. [ 40 ] Similarly, if soccer is through a club, he can access the club website to determine what times and days R.W. is playing. Showing up to all of the games and tournaments that are on when R.W. is not working will go a long away to showing R.W. that this father is engaged and interested in his life.

It does not seem to me on the evidence that R.W. made any effort, beyond expecting A.S. to advise him of what was going on, to be engaged in the children’s sporting activities. It may well be that R.W. finds swimming lessons, volleyball games and soccer games to be boring or inconvenient. However, it is a significant part of who his children are and if he wants to have a meaningful relationship with them, he needs to be interested. [ 41 ] A.S. has also engaged in some conduct which I find to be manipulative.

For instance, when she registered R.W. in a new school, she named herself and her husband as the contacts and R.W. as an emergency contact. Rightly so, S.P. was upset when he discovered what his wife had done. Understandably, R.W. was also upset. On another occasion, A.S. became angry when R.W. refused to sign a passport application that had been only partially completed.

Given the level of mistrust between the parties, it is understandable that R.W. was suspicious of her intentions and refused to sign partially blank forms. [ 42 ] A.S., perhaps borne of her frustrations with R.W. over time, also tends to make significant issues out of minor ones. For instance, C.W. used to be a friend of O.M. While the two girls were having an overnight at R.W.’s home, C.W. became in need of some feminine care products. Rather than asking her father to get them for her, C.W. had O.M. call her mother. S.M. brought some products to C.W. and delivered them without fanfare or making a production.

For whatever reason, C.W. related to her mother that this was embarrassing to her. A.S. blew this incident entirely out of proportion and took the incredible position with S.M. that she was not to interfere with her daughter again. She found S.M.’s conduct to be entirely inappropriate. [ 43 ] A.S.’s position on this incident is entirely irrational and defies explanation. Communication was cut off with O.M. after that, leaving the girl feeling bewildered and hurt by C.W.’s conduct. A.S. said that it was not connected with the incident but was because O.M. was harassing C.W. with an unending flow of text messages.

C.W. felt beleaguered by her friend’s persistent overtures and decided to cut off the relationship. R.W. believes that A.S. is behind this. R.W. does not seem to understand the transient nature of friendships among children as they grow older. While some may remain close friends for life, others will come and go as the children change. Neither parent should be interfering in those relationships so long as they healthy ones. A.S. should not be manipulating her daughter into friendships that meet her mother’s requirements and R.W. should not be persisting in relationships that no longer meet C.W.’s.

[ 44 ] On the other hand, R.W. complained that A.S. was telling R.W. not to play with the girl next door named A. Had R.W. and A.S. been able to communicate properly, he would have learned that A.S. told R.W. not to play with A. because A. was hitting him with toys. There were a number of children and they were playing a game of Invincible. R.W. told them to stop hitting him and they would not listen. They were whipping him with necklaces. A.S. said to R.W. that if the kids would not play nice, then he was not to play with them. This is entirely responsible.

R.W. should examine more fully why it was that R.W. did not communicate this problem with the children to him. [ 45 ] There was also the issue with respect to R.W. and his attendance at daycare. I suspect R.W. was attempting to manipulate his father by saying that he was not supposed to go to daycare when he was at his father’s house. R.W. suspected A.S. had told R.W. he was not to go to daycare when he was at his father’s. R.W. also told his father that A.S. said she was still the boss even when R.W. was at his father’s house. I suspect this is R.W. attempting to manipulate his father again.

It is not surprising that children play one parent against the other. It should not devolve into an ongoing and festering problem between the parents. [ 46 ] There has also been some questionable conduct on R.W.’s part. For instance, on one occasion, in the presence of the children he waved A.S.’s support cheque at her. He acknowledges that this behaviour was inappropriate. While it is positive progress that he recognizes this, it is troubling that it ever happened in the first place.

It is a terrible message sent to the children, exhibiting such monumental disrespect for their mother. [ 47 ] This pettiness extended to the ongoing issue of telephone calls. R.W. insists that if there was not an order in place setting the parameters for telephone communication, he would never hear from the children. Given the ages of his children, this should not be a concern. Both children are old enough to use the telephone and to make calls when they wish to. They are old enough to answer the telephone when R.W. calls them. He knows when they are in school.

He should know when they are engaged in sporting activities. Yet, he complains that when he calls the children are too busy. A.S. complains that when he is supposed to call, he does not. They will interrupt whatever activity they are involved in and wait for a telephone call that does not come. [ 48 ] Both parties are viewing these telephone calls through a jaded perspective and reality lies somewhere in the middle. When R.W. calls A.S.’s home, he should be calling at a time when he knows the children will not be engaged in school or sporting activities, and will not be sitting down to dinner.

When A.S. receives those telephone calls from R.W., she should not be telling him that the children are busy. She should be calling them to the telephone. It is not optional for the children to say that they do not want to go to the telephone. It is her role to guide them into responsible behaviour. On the other hand, R.W. has to understand that telephone calls are not the most desirable way to have parenting time. [ 49 ] Similarly, the parenting time ordered with each parent is a minimum. A.S. believes that she has been flexible in agreeing to additional parenting time when R.W. asks for it.

However, I note that R.W.’s mother has visited town and the children have been unavailable to see her. I also note that R.W. asked to take R.W. snowboarding one day but A.S. only agreed to a two hour window which was sure to prevent any opportunity for snowboarding. What should be transpiring in these instances is that the parents communicate with each other respectfully and cooperatively.

It is not more important for R.W. and C.W. to spend time with S.P.’ family than it is for them to spend time with their own family, being R.W.’s side of it. [ 50 ] R.W. should be able to advise A.S. that his mother is in town and wants to see the children. A.S. should then be telling the children that they are going to see their grandmother. While contact time with extended family should be happening on each person’s own parenting time, there will be occasions when extended family are in town on the other parent’s parenting time.

It is in the best interests of the children to maintain and nourish these relationships. Both parents should be making every effort to ensure contact happens when it can. Similarly, if there is a big snowfall and R.W. offers to take the children snowboarding, A.S. needs to agree. She should not be putting unreasonable restrictions on that additional parenting time. [ 51 ] The other side of it is that R.W. needs to accept that the children have made sports an important part of their lives.

As a result, if C.W. has a volleyball tournament or a game during R.W.’s parenting time, he needs to take her to that tournament or game. If he does not wish to take her to the tournament or game, he must accept that she will not be spending that time with him. Similarly, if R.W. has a soccer tournament, R.W. must ensure he gets to that tournament. R.W. should not plan other activities, trips or otherwise, that conflict with these important engagements for the children. [ 52 ] Additionally, the parents should not be tallying how much missed parenting time they have had.

Parenting time is not about what benefits the parents. It is about what benefits the children. Communications [ 53 ] Every one of R.W. and A.S.’s issues comes down to the poor communications between them. They had a volatile relationship. They had a volatile split. They had a brief period of calm when A.S. met S.P. However, their relationship deteriorated again after S.P. and A.S. became engaged. Whether this engagement had anything to do with the deterioration in the relationship is unclear on the evidence.

What has transpired since that marriage is that the relationship between R.W. and S.P., previously friendly, is strained. [ 54 ] The parties presently communicate by text. Those text messages are often inappropriate. While they are certainly not the worst in nature, they are often misinterpreted. They are also often designed to provoke. One such communication was when R.W. sent a “shouting” text to A.S. demanding to know why R.W. went to school without snow pants. It does not matter why R.W. went to school without snow pants. He had no snow pants on a single day. That is trivial and unimportant.

It should never have become the subject of a text message, much less an ongoing dispute. [ 55 ] A.S. finds R.W. to be disrespectful and sarcastic. R.W. devolved to sarcastic tones while giving his evidence. Sarcasm is offensive, not witty. It also offends his daughter. As a teenager, she is young, sensitive and emotionally fragile. This should be clear to him but he persists in his sarcasm. This is not healthy communication. [ 56 ] A.S.’s communications are sometimes accusatory or demanding. This too is unconstructive.

On the other hand, despite what she sees to be difficult communications, she is prepared to sit down with R.W. to formulate a plan for curing the problem between himself

and his daughter. R.W. should be accepting this olive branch. A.S. has an obligation as a responsible guardian to guide C.W. but it is not her role to repair the relationship between C.W. and her father. A.S. should not be doing anything to exacerbate that rift but it is not her rift to fix. That she is willing to sit down with R.W. and offer suggestions is evidence that she is putting C.W.’s best interests ahead of her own. R.W. should take full advantage of her willingness to advise, guide and to co-operate. [ 57 ] A.S. says R.W. yells. Both of the children communicate that R.W. yells.

Yelling is not an effective means of communication. It resolves nothing and it provokes much. R.W. needs to control his anger and frustration better. The yelling must stop. [ 58 ] On the other hand, C.W.’s communications with her father are entirely inappropriate. A.S. needs to exercise her role as a responsible guardian to ensure that C.W. is not permitted to behave in such an inappropriate manner. It seems that she and her father have taken turns at rebuffing each other at sporting events.

Shortly after R.W. told A.S. that C.W. should not be returning to his home until she had counselling, he ignored C.W.’s overtures at a game. He said he was offended and hurt by her actions. He is the grown up. He needs to rise above. [ 59 ] On another occasion, R.W. approached C.W. and said hello. She turned away and would not look at him, much less respond. A.S. and R.W. ought to have taken C.W. to task immediately and decidedly. A.S. said that she does not support C.W.’s behaviour.

However, the corrective action must be immediate to send the proper message. [ 60 ] C.W. attempted to reach out to her father at one of R.W.’s soccer games. She went over to say hello to her father. He acknowledged the greeting but turned his attention to R.W., who had just come off the field to see him. While this would ordinarily be very acceptable, R.W. ought to have recognized this moment for what it was. He lost the opportunity. C.W. was mortified by what she felt was a rebuff. She returned to her mother in tears. [ 61 ] A.S. suggests that she and R.W. go for coffee to discuss how to resolve this.

She is prepared to work with C.W. to rehabilitate the damaged relationship. However, A.S. can do nothing if R.W. is unwilling to make the effort. I have told R.W. he needs to show up to C.W.’s games and show support even if C.W. has not invited him or encouraged him. He has not done so. If R.W. wants this relationship fixed, he needs to consult with A.S. who has a pretty clear idea how C.W. thinks and reacts to situations. If he is unwilling to take A.S.’s advice and suggestions, then he must make every effort to repair this relationship on his own.

He may fail. [ 62 ] From what A.S. has said, I am satisfied that she is making her best efforts in C.W.’s interests to repair this relationship. In this, A.S. has the support of her husband, S.P. [ 63 ] Before the rift between C.W. and R.W., both A.S. and S.P. would counsel C.W. that routines were different in her father’s home and she must accept those. They encouraged her to go for her visits with her father and counselled her when she would return upset. After the rift, S.P. has made efforts to help A.S. repair the relationship.

He has taken C.W. aside and told her she is not to accept gifts from her father unless she is prepared to show him some love by return. R.W. interpreted this to mean that the only reason C.W. came to see him at Christmas was to receive gifts. S.P. disagreed. R.W. missed another opportunity. [ 64 ] S.P. and A.S. have created openings and pushed C.W. through them to repair this relationship with R.W. R.W. has deliberately chosen not to take advantage of those opportunities.

S.P. is also of the view that as long as R.W. continues to be abusive toward A.S. and as long as they continue to fight, C.W. will not change her view of her father. S.P. rightly observed that if R.W. does not show A.S. some respect, C.W. is not going to respect him. [ 65 ] R.W. has his issues with respect to R.W.’s behaviour in his home. Apart from the comments R.W. has made about his mom being the boss and about him not having to go to daycare, they also engage in fights over brushing teeth. R.W. said R.W. is often disrespectful and rude. He is becoming concerned that A.S. is encouraging this behaviour in R.W.

There is no basis for it. A.S.’s evidence, despite her jaded view of R.W., is that she is making every effort to ensure her children feel safe and supported. I cannot accept on the evidence before me that she has ever done anything to try to damage the relationship between R.W. and his children. While she may not be very accommodating with R.W.’s requests, she has done nothing to discourage the children from wanting to see their father.

On the contrary, she has largely encouraged them to have a positive relationship with him. [ 66 ] Throughout the course of this trial, R.W. showed himself to be sarcastic, defensive and focused on his own needs. He has not gained any insight from the evidence of any of the witnesses. He is suspicious of the testimony of A.S.’s witnesses. His own witnesses have not been a part of his children’s lives for some years. There is no evidence that he cannot be an engaged and positive parent. There is nothing to dispute the evidence he gives about the various activities he engages in with the children.

It is his manner of communication with them and his lack of reliability that has created a distance between himself and the children. This is not A.S.’s doing. This is his doing. Children expect reliability, they expect love and they expect encouragement. If R.W. is not prepared to adjust the way he communicates with his children and the way he engages with them, then he can expect that they will grow more distant from him. He cannot blame A.S. for this. Orders Sought and Made [ 67 ] A.S. wants parenting time between R.W. and C.W. to be suspended until C.W. is ready to have time with him.

In other words, she wants C.W. to dictate when that parenting time will occur. That cannot happen. It is not in C.W.’s best interests to allow this relatively minor rift to fester and grow as it has. There must be a proactive effort on the part of both parents to repair this rift. However, C.W. should not be forced to stay at her father’s place, where she will be so unhappy, until this matter is resolved. [ 68 ] A.S. wants R.W. to apologize to C.W. for his role in what transpired. R.W. may see fit to apologize for his parenting skills that involve sarcasm, yelling and lack of reliability.

However, he has nothing to apologize for when he identifies to A.S. that his relationship with C.W. is deteriorated to the point that he does not think it appropriate she come to his home until they have had counselling. While this may not have been the best course of action, it would be inappropriate for him to apologize to C.W. for it. [ 69 ] R.W. needs to start with showing a commitment to C.W. He needs to go to her games. He needs to call her and talk with her about things that are of interest to her without making her defensive or suspicious of his motives. He needs to make the conversations

about things she is interested in and encourage her to talk to him rather than him talking to her. These are things that are important to C.W. He needs to ask C.W. out and make his time with her the only focus of their time together. [ 70 ] The incident over coffee at Starbucks has two entirely different perspectives. R.W. said he offered to take C.W. to Starbucks and she wanted to leave right away. So their attempt at reconciliation was spoiled by her lack of interest in engaging. C.W.’s version of the events is that he gave her money, told her to buy a drink and then took her out to run some errands.

The two versions could not be more different and they exemplify the complete lack of communication between the two of them. [ 71 ] A.S. would prefer that she and R.W. communicate by telephone. She believes, and it is substantiated on the evidence, that text messages create difficulties because a person cannot sense tone. Unfortunately, speaking in person may not work well for these parties. They tend to talk over one another, have a history of volatile communication, and are not yet ready to discuss important issues face to face. [ 72 ] I canvassed the issue of having a parenting coordinator put in place.

A.S.’s view is that they are not two parents who do not wish to communicate; only one parent does not. A.S. does wish to communicate, but she is primarily interested in communicating her point of view as opposed to listening to and acknowledging R.W.’s point of view. [ 73 ] R.W. has been difficult and disrespectful in his communications. He is open to the idea of a parenting coordinator. While the parents could certainly benefit from the services of a parenting coordinator until their communications improve, it is primarily the relationship between R.W. and C.W. that remains unresolved.

This will not be fixed by the appointment of a parenting coordinator. The balance of the communication issues can be addressed by conduct orders, which I will make. At least for the time being, I will not appoint a parenting coordinator. [ 74 ] R.W. would like A.S. and himself to attend a counsellor together. This is not going to resolve the problems.

While both of them would benefit from counselling with respect to how to co-parent after separation, the real work has to be done around R.W. and his relationship with C.W. [ 75 ] R.W. expects that his work in Alberta will come to an end and he hopes to find full time work in Kamloops. That has not yet happened. Be that as it may, and despite R.W.’s comments to Ms. Fenton, the two weeks with A.S. and one week with R.W. do appear to work for R.W. It is not just a matter of whether R.W. is in town more often and available to parent more frequently, but what is in R.W.’s best interest.

This is an established routine for him. Certainly A.S. needs to be more flexible about additional time R.W. is able to spend with his father. However, I do not see on the evidence that it is in R.W.’s best interest to change his current routine. R.W.’s parenting time with R.W. shall continue as it has to date. R.W.’s application to vary the order in that respect is dismissed. [ 76 ] A.S. does not see the continuing need for an order with respect to telephone calls. However, I am not satisfied that terminating that order will benefit R.W.’s relationship with his father.

It may be inconvenient to A.S. to make R.W. available but it is not convenience or frustration with those telephone calls that are the paramount concern. I am continuing the orders with respect to telephone parenting time. R.W. shall have telephone parenting time with R.W. at 6:00 p.m. on Fridays. In the event that R.W. will be engaged in an activity making him unavailable at that time, A.S. shall give notice to R.W. not less than 48 hours in advance together with the time that R.W. will be available that same night. R.W. is responsible for placing that telephone call at 6:00 p.m.

If he has not placed that call within five minutes, R.W. is free to continue his activities. [ 77 ] R.W. shall ensure that R.W. telephones A.S. on his first night of R.W.’s parenting time and after that at R.W.’s request. [ 78 ] It would be inappropriate at this point to make an order compelling C.W. to attend her father’s place for parenting time. I suspect C.W. regrets very much the rather immature approach she has taken to this dispute with her father. However, her tentative attempts to breach the divide have been rebuffed in her view. It is not in C.W.’s best interests to persist in this course of action.

Both she and R.W. must be encouraged to repair this rift. I am ordering a graduated re-introduction with an appropriate comfort zone for C.W. Both R.W. and A.S. shall use their best efforts to ensure that this graduated re-introduction is positive, constructive and healing:

a) R.W. and A.S. shall arrange for R.W. to meet with C.W. and, if C.W. wishes, A.S. or other third party of C.W.’s choosing for a period of not less than one hour each Sunday commencing May 10. If the parties are unable to agree to a time, they shall meet at 12:00 noon.

b) The parents shall use their best efforts to ensure that there is no confrontation between themselves or between C.W. and R.W. during this parenting time.

c) Effective May 31, those one-hour visits shall extend to not less than two hours. A.S. shall not attend those visits.

d) In the event that A.S. and C.W. are away or otherwise unable to attend one of those Sunday visits, A.S. and R.W. shall agree to an appropriate time and place to make up the missed visit within the next week.

e) All communications between A.S. and R.W. with respect to the scheduling of these visits shall be in writing by e-mail.

f) As of June 28, 2015, R.W. and A.S. shall review whether C.W.’s visits can be extended to longer periods of time and, in any case, shall not be less than two hours per week.

g) A.S. shall provide R.W. with a copy of the schedules of all events C.W. will be attending for school or athletics. R.W. shall attend each of those events if they do not fall within his work hours. [ 79 ] Under s. 40(2) the guardians shall share equally all parental responsibilities for the children, except that each parent shall have the responsibility of making day-to-day decisions affecting the children and having day-to-day care, control and supervision of the children during that parent’s parenting time. That will require that the parents consult with each other on each of the following parental responsibilities:

(

a) making decisions respecting where the children will reside; (

b) making decisions respecting with whom the children will live and associate ; (

c) making decisions respecting the children's education and participation in extracurricular activities, including the nature, extent and location; (

d) making decisions respecting the children's cultural, linguistic, religious and spiritual upbringing and heritage; (

e) subject to

section 17 of the Infants Act , giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the children; (

f) applying for a passport, licence, permit, benefit, privilege or other thing for the children; (

g) giving, refusing or withdrawing consent for the children, if consent is required; (

h) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive; (

i) requesting and receiving from third parties health, education or other information respecting the children; (

j) subject to any applicable provincial legislation, i. starting, defending, compromising or settling any proceeding relating to the children, and ii. (ii) identifying, advancing and protecting the children's legal and financial interests; (

k) exercising any other responsibilities reasonably necessary to nurture the children's development. [ 80 ] R.W.’s application included a request for an order that the parties divide the three days at Christmas on Christmas Day each year. The parties seem to be able to arrange for holiday time effectively except for some minor disputes over the Christmas time. I order that the parties shall share Christmas each year with the exchange occurring at noon on Christmas Day with R.W. to have Christmas Eve and morning on even-numbered years and A.S. to have the Christmas Eve and morning on odd-numbered years.

The remainder of holiday time shall be as agreed between the parties. The Christmas and other holiday time is with respect to parenting time with R.W. generally, but with C.W. subject to her wishes. [ 81 ] R.W. shall not smoke in the presence of the children in any closed building or vehicle. While I would not ordinarily make orders with respect to smoking, it is clear that neither of the children appreciate being exposed to cigarette smoke.

They have made their wishes known, and the parents must respect this. [ 82 ] Each guardian will cooperate with the other guardian in the provision of passports, consents to travel, and other necessary documents as may be required to allow the children to travel. [ 83 ] I am also making conduct orders to govern the parties. They should be aware that, in the event that either party breaches these conduct orders, the other may apply for financial penalties to be awarded against the offender. [ 84 ] The parties shall: (

a) put the best interests of the children before their own interests; (

b) encourage the children to have a good relationship with the other parent and speak to the children about the other parent and that parent’s partner in a positive and respectful manner; and (

c) make a real effort to maintain polite, respectful communications with each other, refraining from any negative or hostile criticism, communication or argument in front of the children. [ 85 ] The parties will not: (

a) question the children about the other parent or time spent with the other parent beyond simple conversational questions; (

b) discuss with the children any inappropriate adult, court or legal matters; or (

c) blame, criticize or disparage the other parent to the children. [ 86 ] The parties will encourage their respective families to refrain from any negative comments about the other parent and his or her extended family, and from discussions in front of the children concerning family issues or litigation. [ 87 ] R.W. shall not yell at the children. Child Support and Special or Extraordinary Expenses [ 88 ] A.S. originally made an application for arrears of child support. At the hearing, she confirmed that she was only concern about child support going forward.

Also, special and extra-ordinary expenses have not been an issue for the parties. However, she would like the proportionate amount set so the parties are clear on their obligations. R.W. is agreeable but wants to be consulted before special or

extra-ordinary expenses are incurred. [ 89 ] Dealing first with the special or extra-ordinary expenses, s. 7 of the Federal Child Support Guidelines provides as follows: 7 .

(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation: (

a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment; (

b) that portion of the medical and dental insurance premiums attributable to the child; (

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; (

e) expenses for post-secondary education; and (

f) extraordinary expenses for extracurricular activities.

(1.1) For the purposes of paragraphs (1)(

d) and ( f ), the term “extraordinary expenses” means (

a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (

b) where paragraph (

a) is not applicable, expenses that the court considers are extraordinary taking into account (i). the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii). the nature and number of the educational programs and extracurricular activities, (iii). any special needs and talents of the child or children, (iv). the overall cost of the programs and activities, and (v). any other similar factor that the court considers relevant.

This should guide the parents about what are appropriate special or extra-ordinary expenses. [ 90 ] There was not a particular focus on the financial aspects of these parties during the course of this hearing. R.W. operates his own business. He claimed his income at $35,455.84 from that business. A.S. has provided income tax returns that show her income in 2013 was $42,529, but she has been unemployed since January 29, 2014. Her EI benefits for the year were $24,672. A.S. is on employment insurance now but is also enrolled in the Medical Lab Assistant program.

Presumably, her income will increase when she has employment in that field. [ 91 ] Given the uncertain state of the income of both parents, I am setting child support obligations for R.W. based on his last known income of $35,455.84. His child support obligations for two children is $545 per month. This is the amount effective May 1, 2015. With respect to special or extra-ordinary expenses, subject to the agreement of the parties with respect to anything apart from the current activities the children are engaged in, their proportionate share effective May 1 is 60% to R.W. and 40% to A.S.

The children should be able to continue in swimming, soccer and volleyball without issue, subject to any unexpected hardship either parent may experience. [ 92 ] The parties shall exchange their income tax returns and notices of assessment not later than May 1 of each taxation year.

R.W. shall include his business tax returns in that disclosure. [ 93 ] Effective July 1 in each year commencing July 1, 2015, R.W.’s child support obligations for two children shall be adjusted in accordance with the prior year’s income tax return and notice of assessment; and the special and extra-ordinary expenses shall be adjusted proportionately in accordance with each parties’ income in according to their notices of assessment and income tax returns. [ 94 ] The parties should be aware that financial penalties may be levied against parties defaulting on these disclosure orders. ________________________________ S.D.

Frame

Provincial Court Judge