V.L.M.-B. v. Z.S.W. Date:, 2016 BCPC 175

Citation: V.L.M.-B. v. Z.S.W. Date: 20160531 2016 BCPC 0175 File No: 15058 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: V.L.M-B. APPLICANT AND: Z.S.W. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.D. SKILNICK Counsel for the Applicant: D. K. Maser

Counsel for the Respondent: E. Chhina Place of Hearing: Abbotsford , B.C. Date of Hearing: July 7, 2014, May 9-10, 2016 Date of Judgment: May 31, 2016 Introduction [ 1 ] The Applicant V.L.M-B. and the Respondent Z.S.W. are the parents of a little girl named L.G.W., who was born on (d.o.b.), 2011. On August 20, 2012, the Applicant brought an application for what was then termed “custody” of the child, and that application was opposed by the Respondent.

He brought his own application for custody of the child on December 13, 2012. [ 2 ] A trial was commenced on July 7, 2014, but toward the end of the first day of that trial, it appeared that the parties had reached a resolution of the matter. They requested that the matter be adjourned by consent to sometime after September of 2015 and in the interim they worked out a reasonable shared parenting arrangement.

This coming September (of 2016) L.G.W. is scheduled to start Kindergarten and the parties are unable to work out an agreement on either how their parenting time with the child should be shared or which school she should attend. They have returned to this court for resolution of those issues. [ 3 ] Despite their youth (both are now just 23 years of age), the Applicant and Respondent have demonstrated remarkable maturity in their ability to co-parent this child.

There is some residual resentment that remains between them, and both of the parties have family members who somehow see it as being in L.G.W.’s best interests to disparage the child’s other parent. The Applicant has entered into a new relationship and her new partner was unable to conceal his anger against the Respondent, offering another impediment to these parties’ ability to give L.G.W. a stress-free co-parenting arrangement.

It may be that, left to their own devices, the Applicant and Respondent might be able to cooperatively co-parent their child, but both rely on their families for their own support and this has complicated matters. They have had to ask this court to appoint one of them to be the “decider” for contentious issues. [ 4 ] At the trial of this matter, both of the parties testified. The Applicant’s new partner, her new partner’s mother and a family friend also testified, as did the Respondent’s mother. This court also had the benefit of a report ordered pursuant to

section 211 of the Family Law Act , prepared by Doctor Allen Posthuma. Following is a

summary of the evidence presented, as well as of the applicable law and the position of the parties, and the reasons for making the order that results from these applications.

Summary of Evidence [ 5 ] The Applicant turned 23 years old earlier this year and the Respondent turned the same age late last year. They had been boyfriend and girlfriend and the Applicant became pregnant when she was 18 years old. She was living with her father at the time when the child L.G.W. was born in 2011. According to the Applicant’s evidence, when the child was two weeks old, she and the child moved into the home where the Respondent was living with his mother.

There was some tension in the relationship and the Applicant and the child ended up moving out of the home and going to live at the home of her brother. She testified that she lived in her brother’s home for about four months, before moving out on her own. [ 6 ] There is a difference of opinion as to what happened early on in the child’s life. The Applicant maintains that the Respondent was not very involved in his child’s life, while the Respondent maintains that he was excluded from being a part of the child’s life by the Applicant and by her family.

Little is gained by offering any opinion as to who is more accurate about this. Of greater usefulness is a consideration of the parties’ subsequent conduct. Whether or not the Respondent was disinterested in being a parent or was denied the opportunity to do so, what really matters most is that in recent times he is definitely interested in being a good father and he has demonstrated his willingness and ability to accept that responsibility.

Dwelling on this and other past resentments serves little purpose, but unfortunately the parties’ families have promoted and encouraged those resentments, rather than leaving them in the past where they belong. [ 7 ] After the Respondent moved out of the Respondent’s home, a number of complaints were made to the Ministry of Children and Families about the Applicant’s parenting. The parties offer different versions of what the findings of the Ministry were and no evidence from the Ministry or from their records were presented by either party.

Little is to be gained from speculating as to what extent these complaints were valid. The Applicant maintains resentment over the fact that these complaints were made in the first place, and that the Respondent and his family were not forthright with her about their being the ones who made the complaints. The Respondent and his family assert that at the time, the Applicant was not making wise decisions about how best to care for the child. [ 8 ] In August of 2012, an incident arose leading to a further resentment between the parties.

The Respondent did not return the child after a visit and while he agrees that this was so, the parties have differing perceptions about what occurred. The Applicant characterized the Respondent’s actions as

an act of “abduction” on his part. The Respondent testified that he felt that the child was in an unsafe situation because the Applicant’s mother was active in the use of hard drugs as well as in abusing alcohol. He recalls that the two of them had an argument in which the Applicant accused him of “being mean” and he countered that she had left their child in the care of a “drug addict.” [ 9 ] On August 20, 2012, the Applicant brought an Application to this court asking for what was then termed “custody” of the child. The parties appeared before the Honourable Judge C.J.

Rounthwaite on that day and an interim order was made which designated the Applicant’s home as the child’s primary residence and which gave the Respondent “access” to the child from Friday at noon until Saturday at noon. The parties were also ordered to be joint guardians for the child.

[ 10 ] The Respondent filed a Reply on September 5, 2012 in which he disagreed with the Applicant having custody of the child and in which he asked for an order specifying when he could have what was then termed “access” to the child. He requested that the child be in his care from each Thursday at noon until the following Sunday at noon. An order was made on September 11, 2012 in which the child was to be in the care of the Respondent each weekend from Friday at noon until the following Sunday at noon for the first three weekends of each month.

The Respondent was made responsible for picking up and returning the child on each of these weekends. [ 11 ] On December 13, 2012, the Respondent amended his Reply to the Applicant’s Application. He alleged that the Applicant was frequently changing residences and that she was leaving the child in the care of unsafe caregivers. He also alleged that the Applicant was unable to provide food and other basic needs for the child. [ 12 ] On December 17, 2012, a hearing was held before the Honourable Judge R.R.

Romano, who specified the time of the Respondent’s access to the child over the Christmas season. [ 13 ] On February 4, 2013, the Honourable Judge R.B. Caryer made a further order extending the Respondent’s access time with the child to every weekend and he also ordered that the Applicant was to give the Respondent the first option at being the caregiver for the child when she was unable to do so. The parties were also ordered to cooperate in getting a passport for the child. [ 14 ] The Respondent’s parenting time with the child was set out in an order made by Judge Caryer on August 28, 2013.

The order made allowances for the Applicant to take the child on a trip to the United States. [ 15 ] The parties appeared before the court once again in October of 2013, once again before Judge Caryer, who made an order setting out the Respondent’s parenting time with the child over the upcoming Christmas season. [ 16 ] Judge Caryer made another order in December of 2013, ordering that a report be prepared by Doctor Allen Posthuma pursuant to

section 211 of the Family Law Act. He also made an order for disclosure of the records of the Ministry of Children and Families concerning this child. Doctor Posthuma provided a comprehensive report dated April 11, 2014 in which he recommends a shared parenting regime. Doctor Posthuma is very complementary about the Respondent, though this is not to suggest that he is uncomplimentary about the Applicant.

On page 18 of his report, Doctor Posthuma reaches the following conclusion: This assessment indicates that L.G.W. has an important emotional attachment to both parents, who each provide different skills and abilities for her well-being. This assessment would indicate that L.G.W. would be best served by a cooperative co-parenting arrangement. Both parents raise serious allegations against the competency of the other parent.

The evidence reviewed in this examination (psychological testing, MCFD records, interview and observation of both parents interacting with L.G.W.) would indicate the allegations against the father are, in the main, unfounded as far as L.G.W.’s welfare is concerned. With regard to the father’s mental health problems, it is clear that he has mental health problems, but his effective mental health has been maintained now for over three years as the result of psychotherapy and psychotropic medication.

His psychiatrist believes that his previous mental health problems were an artifact of a troubled childhood and adolescent adjustment, which he has successfully navigated. In observing him with his daughter, he is gentle, creative, and effective. These are all important assets in fostering L.G.W.’s emotional and cognitive development. The mother provides quite different qualities. For reasons that are not clear, she is more protective and more insecure. The assessment was handicapped by the lack of validity in many of the psychological tests.

In spite of this, L.G.W., in the main, is quite comfortable with mother. This might change as L.G.W. matures and becomes more aware of her mother’s animosity toward her father, her abrupt style and her lack of warmth. This animosity in turn appears to be a more generalized problem, probably related to her background and lack of developing a significant emotional attachment to either parent. This is also an issue that the mother needs to address in order to develop more confidence and warmth in her parenting of her daughter. [ 17 ] In a

section of the report in which Doctor Posthuma answers specific questions posed by counsel, he states that he is recommending that the child alternate weeks in each parent’s residence.

He adds, “This is assuming that the mother endorses and attempts to the best of her ability to co-parent L.G.W. with her father.” He goes on to state, in response to another question: “The father is more able to make the right decision on L.G.W.’s best interests in making day to day decisions with regard to parenting responsibilities and plans.” [ 18 ] The Applicant had a number of complaints with Doctor Posthuma’s conclusions and calls him biased.

She says this is so because the Respondent paid for the report. (It is unclear why neither her new partner nor anyone on her side of the family was able to contribute to the cost of the report.) She claims that the report writer left out a lot of information that she provided to him and that he only watched her interaction with the child for an hour and a half. She especially resents the fact that he does not see her as being warm and loving.

On the second day of her testimony, the Applicant stated in cross-examination that she was very angry when she read Doctor Posthuma’s report and said that she doesn’t recall making many of the statements that are attributed to her in the report. [ 19 ] When this trial commenced in July of 2014, the Applicant testified that she planned to find employment soon, but first she intended to complete her grade 12 education. She testified that at that time she still needed to complete two and a half classes and that she was working on her grade 12 English. She said that she wanted to eventually become a nurse.

She was living in Coquitlam at the time and was in a new relationship with a young man (now her fiancé) who worked in Vancouver. The couple were living together. She testified that when she moved from Mission to Coquitlam, she gave the Respondent a hand-written note telling him that she was doing so. She said that she was reimbursing the Respondent for the cost of the tolls that he had to pay to cross the Port Mann Bridge to exercise his parenting time with the child.

At that time she testified that she did not have a driver’s license, but she intended to get one. [ 20 ] The Applicant testified that she grew up in a home in which both of her parents experienced alcohol and drug problems. Her parents separated when she was four years old and she lived with both of her parents at different times. On the first occasion that she testified, she said “I haven’t talked to my dad for over a year and don’t plan on it. He’s negative.” She said that she experimented with

the use of illegal drugs as a teenager, mainly marijuana and some MDMA. [ 21 ] At the time of her testimony on the first day of trial, the Applicant said that she had formed the conclusion in her mind that the Respondent could not parent the child. She testified “From the time L.G.W. was born, I knew he would never be able to take care of L.G.W.” She also said that communication between the Respondent and her was poor. She said that the two of them mostly communicated by text message other than when the child was in hospital at Royal Columbia Hospital for a medical issue.

She was complimentary however about the fact that the Respondent was very consistent in attending for his parenting time and that there were no problems with cancellations. [ 22 ] In cross-examination, the Applicant acknowledged that at one point in her life, she had experienced some mental health issues, both with anxiety and post-partum depression.

She had difficulty living with the Respondent at his mother’s house because his mother was critical of her. [ 23 ] At the end of the first day of trial, the parties worked out an interim parenting time arrangement and asked for the trial to be adjourned for over a year to sometime after September of 2015. There was optimism that, despite the presence of some strong past resentments, the parties would be able to work out their parenting issues.

Regrettably they were unable to do so, and the trial of this matter resumed on May 9, 2016, with the main issues of contention being where the child would primarily reside, and who would make the decision about where the child would attend school in the fall. [ 24 ] When the trial of this matter resumed on May 9, 2016, the Applicant had moved once again. She and her partner (who was now her fiancé

e) had purchased a home in Maple Ridge a month earlier in April of 2016. She testified that she was still planning to find part- time employment and that in the previous year she had worked part time at a retail toy store. Her fiancée was working as a contractor and he worked primarily in North Vancouver, BC. The Applicant had not yet obtained her driver’s license, but said that she still planned to do so, however the couple only had one vehicle and the Applicant’s fiancée used it to go to work. The purchase of a second car was unlikely, given the financial commitment involved in the purchase of their home.

She also said, in cross-examination, that she has not obtained her grade 12 education yet and that while she planned to do so someday, this was no longer a priority for her. She was no longer pursuing her plans to be a nurse. She said “now I plan to be a home-maker so I don’t need grade 12 now.” She and her fiancée plan to have another child after they get married. [ 25 ] The Respondent also testified and he presented as a very calm and even-tempered young man, even when sitting in the courtroom while others were saying disparaging things about him.

He is a couple of months short of his twenty-fourth birthday and lives in the Walnut Grove

section of Langley at the home of his mother. His grandfather also lives in the home. He testified that during the time after L.G.W. was born when the Applicant and the child lived in his mother’s home, he was active in looking after the child. He described himself as a “night owl” and says that this made it convenient for him to care for the child so that the Applicant could sleep.

He testified that when the Applicant and the child moved to her brother’s home, his time with the child decreased because of physical threats made against him by the Applicant’s brother. [ 26 ] The Respondent testified that in August of 2012 he became concerned about L.G.W. being at risk because she was living in a home where the Applicant’s mother was using crack cocaine and drinking alcohol excessively. He admits that he removed the child from that home without first telling the Applicant.

He said that it was never his intention to keep the child from the Applicant, but before they could discuss the issue about what he perceived to be an unsafe environment, the Applicant had commenced these court proceedings. [ 27 ] The Respondent acknowledged that he has had issues with depression and anxiety. He suspects that this may be an undiagnosed mood disorder, but that since 2010 he has been regularly been seeing a psychiatrist and taking prescribed medication to address the problem.

On occasion when his prescription has been changed, he says that he has experienced the need to sleep longer than normal, but this usually only lasts for about a two week period as his body adjusts to the medication. In cross-examination he was very open about his medical condition, including in describing a major depressive episode that he experienced when he was seventeen years old.

He has been diligent in putting a safety plan in place to monitor his mental health that includes regular visits with his psychiatrist and he appears to be effectively managing his mental health. [ 28 ] The Respondent works a night shift as a security officer four nights a week. He proposes that his sleep

schedule is amenable to his caring for the child and that it would accommodate her school schedule. He testified that he used to smoke cigarettes but that he has stopped doing so by “vaping”, something he is in the process of tapering off. He said that his mother does not smoke cigarettes inside the house. [ 29 ] The Respondent testified that he personally has never made any complaints to the Ministry of Children and Families about the Applicant.

He testified that he always speaks about the Applicant to the child in favourable terms, telling her that “mommy loves you and misses you” when it is time for the child to return to the Applicant. [ 30 ] In seeking to care for the child to a greater extent than he does now, the Respondent notes that his work

schedule is very flexible, and that he has his mother to assist in caring for the child. He has been active in attending the child’s extra-curricular activities when he is able to do so, and has been active in coaching her soccer team. He describes himself as “passive in conflicts” and by all indications from the evidence, this is a fair description of his manner. [ 31 ] The Respondent has plans to better his employment situation by attending university and studying in the field of microbiology and immunology.

He expects to graduate by the time he is thirty years of age. [ 32 ] The Respondent is not disparaging of the Applicant personally, but he is concerned about her difficult childhood and upbringing, her lack of good parental role models and the past frequency of the moves that the Applicant has made. He sees himself as better able to provide the child with a stable environment. He denies the accusation that he feeds the child too much candy or that the child eats at restaurants too much. He also has concerns about the Applicant’s new home which is located in the downtown

section of Maple Ridge and feels that the neighbourhood that he and his mother reside is in a much safer one.

[ 33 ] L.G.W., who is now four and a half years old, is active in a number of activities that the Applicant has enrolled the child in, including ballet, jazz dancing, swimming and skating. The Respondent had tried to enrol the child in soccer on a team that he was coaching, but the Applicant was not supportive of this because she felt that it was disruptive of the child’s mealtime schedule. Although the Respondent did not concur in this, according to the Applicant’s evidence, the Respondent was “very understandable and reasonable” about this. [ 34 ] The parties have been cooperating on a revised parenting time

schedule that allowed the Applicant to have the child for some weekends which carry over to her weekly parenting time. While it has not been a completely satisfactory arrangement, the fact that the parties have been able to work out a modified parenting time

schedule without that

schedule being imposed by this court indicates that they are possessed of a good level of maturity and are capable of reasonable co-parenting and of being able to compromise. However the Applicant notes that there are disadvantages to the current schedule. There are periods in the

schedule when the child is with the Respondent for periods of eight consecutive days, and the Applicant feels that this is too long for the child to be away from her care. She says that when the child is in her care, the child experiences what the Applicant describes as “night terrors”, as often as once per week. In cross-examination she said that she did not mention these to the Respondent. The Applicant’s fiancée testified that these “night terrors” may actually just be nightmares.

He said that these occurred “a handful of times” in the past two years and that he couldn’t recall the last time that one occurred. [ 35 ] One of the central issues of contention is where L.G.W. will go to school in September. The Applicant testified that she lives close to a school and says that enrolling L.G.W. in that school is more convenient for her because she does not drive. The Respondent has enrolled the child in a school in Langley, where he lives. He testified that he did so, not meaning to be presumptuous about the outcome of this litigation, but in order to preserve the spot.

This issue is complicated by the fact that a toll bridge lies between the parties’ residences and wherever the child goes to school, one of the parties will have to cross the bridge and pay the toll (between $3.10 and $4.65 each time the bridge is crossed) in order to get the child to school. This will add up over the time that the child is in school, especially under a shared parenting arrangement. [ 36 ] The Applicant was asked if she had any concerns about the Respondent’s parenting abilities, to which she responded “I do and I don’t”.

Her complaints are that she feels that the Respondent feeds the child too much candy and she also questions his judgement in taking the child to see a movie called “The Jungle Book”. The Applicant believes that the child was too young to see this movie. She also thinks that the Respondent takes the child to restaurants too often. She is also concerned about the fact that the Respondent and his mother are both smokers, because L.G.W. was once treated for pneumonia and had scarred lung tissue.

Despite the fact that this litigation began with an application that she commenced, the Applicant testified that she blames the Respondent for the fact that there are court proceedings and in her words, court has taken “the joy of motherhood” away from her. [ 37 ] It appears that one of the impediments that these parties face in attempting to co-parent cooperatively is their families. The Applicant and the Respondent have done a number of things that show that they can come to reasonable decisions and make compromises that are fair to one another.

On the other hand, their family members appear to view the situation as one that gives rise to a need to take sides, rather than to be supportive and encouraging of the efforts of L.G.W.’s parents to work together in L.G.W.’s best interests. For example, N.P., who is the Applicant’s fiancée, was asked a number of times in cross-examination, about why he was so angry, and he certainly demonstrated a hostile and combative demeanour in responding to questions put to him by counsel for the Respondent.

He was upset when the Applicant received an email from the Respondent’s counsel on the subject of the child’s extra- curricular activities and said that he hasn’t talked to the Respondent since seeing the email. He also testified that he wants L.G.W. to eat her meals at the supper table with her family and does not like the idea of her playing soccer at the expense of being home for family meal time.

He said that in general he was not on good terms with the Respondent and his family because, in his words, “they accuse us of stuff and it’s upsetting to me.” [ 38 ] The Respondent’s mother began her evidence with a number of criticisms of the Applicant, complaining that when she lived in her home, the Applicant stayed up late and slept all day, was not very attentive to cleanliness and did not properly sterilize the baby’s bottles.

She volunteered that it was she who contacted the Ministry of Children and Families to complain about the Applicant, and she related a number of other complaints about the Applicant, many of which dated back to a time in the past when L.G.W. was a baby. [ 39 ] The Respondent’s mother also complained that the mother of the Applicant’s fiancée attempted to intimidate her while she was outside of the court waiting to testify. This allegation was denied, and whether or not this took place, it would not be surprising, since it is clear that animosity exists on the part of the Applicant’s family towards the Respondent.

The Applicant’s father did not testify, but made his presence known while sitting in the courtroom, with loud sighs and other noises and exaggerated head shaking when there were portions of evidence that he did not approve of. The mother of the Applicant’s fiancée testified mainly about her observations of the child when it the Applicant’s care.

Another family friend presented similar evidence of her observations of the interaction between mother and child on the occasions when she was able to observe the two of them together. [ 40 ] In general, the evidence suggests that both parties are now very capable parents and both love the child very much. Being parents appears to have matured both of them and they both appear to have grown in terms of their character because of their role of being responsible for raising their daughter.

Were it not for some past issues that have resulted in residual resentment between the two of them, this situation would be ideal for a co-parenting arrangement and the parties would not have likely ended up in court.

The situation is complicated by the fact that each parent has a support network with persons who see some purpose in supporting those resentments, rather than in encouraging them to leave the resentments in the past, to forgive and forget, and to create an environment for L.G.W. in which the child can be comfortable in loving both parents without feeling that by showing love for one, she is somehow being disloyal to the other.

As Doctor Posthuma correctly observed, this will become more problematic as the child gets older and becomes more aware of things unless the parties and their families learn to let go of these resentments. Until this happens, this is the biggest roadblock to a truly collaborative parenting regime, and it is the reason why there needs to be one decision maker on contentious issues. Position of the Parties 1. The Applicant

[ 41 ] On behalf of the Applicant, her counsel asks for an order continuing the shared parenting regime in its current state until such time as the child begins school in the fall. At that point she proposes that the child be in the Respondent’s care for three weekends each month from Friday after school until Monday when school begins. For the fourth week, she proposes that the Respondent have the child for one overnight visit commencing after school on Wednesday, returning the child to school on Thursday.

It is proposed that the Applicant be able to specify which weekend each month she would like to have the child for and that she could then give the Respondent a month’s notice of the weekend she chose. This would accommodate the child’s ability to spend time at the place near the Peace Arch where the Applicant and her fiancée’s family spend some weekends. [ 42 ] Counsel for the Applicant also proposes that each party have the child for a full uninterrupted week in July and August and that on Mother’s Day and Father’s Day the child would be in the care of the parent being honoured from 10:00 a.m. to 7:00 p.m.

She also proposes that for Christmas, the child would be in the care of the Applicant overnight from Christmas Eve to Christmas morning in odd numbered years and in the care of the Respondent in even numbered years. Similarly she proposes that in odd numbered years, the child should spend Good Friday and Easter Saturday in the Applicant’s care and Easter Sunday and Easter Monday in the Respondent’s care, with that trend reversing in even numbered years. Similarly, it is proposed that the child would be in the Applicant’s care on Halloween in even numbered years and in the Respondent’s care in odd numbered years.

She proposes that on the child’s birthday, each parent would have the child for an uninterrupted three hour block of time. [ 43 ] The Applicant’s Counsel argues that little weight should be placed on the report of Doctor Posthuma because it has not been accurate in some of its predictions. For example, Doctor Posthuma did not expect that the Applicant’s relationship with her fiancée would last, and this prediction has proven to be incorrect. His predictions about possible parental alienation have not come to pass.

Counsel asks that the Applicant be given decision making authority when it comes to the child’s choice of school, pointing out that doing otherwise will impose hardships on the Applicant’s household. 2. The Respondent [ 44 ] Counsel for the Respondent argues that an order for either shared decision making or one giving the Applicant the decision making authority for this child would not be in the child’s best interests. She notes that in spite of his calm and reasonable nature, the Respondent has had to apply to this court for time with the child at Christmas, in the summer and at other times.

He has faced unfounded accusations of being bi-polar, and there is now the added obstacle of the animosity coming from the Applicant’s fiancée and his family towards the Respondent. [ 45 ] Counsel also points out the inability of the Applicant to follow through on her plans and to change her mind on a number of issues.

For example, she has not found steady part-time employment, she has not completed her grade 12, she has not obtained a driver’s license, she has abandoned her plans to be a nurse, and after testifying that she had no plans to talk to her “negative” father, he is now one of her biggest cheerleaders fuelling her resentment against the Respondent and his family. Counsel also argues that the Applicant’s contention that Doctor Posthuma’s report is “biased” reflects her inability to see things as they really are.

She argues that the Applicant’s inflexibility on such issues as refusing to permit the child to play soccer because it interferes with family meal time, her exaggeration on the child’s “night terrors” and her litany of unfair criticisms of the Respondent (for example, his taking the child to restaurants) all do not bode well for the future of any co-parenting regime. She argues that having the parties share decision making will only result in future court applications, something that is not in the child’s best interests, given the animosity coming from the families.

She asks for an order making her client the decider, because given the Respondent’s calm demeanour and his past track record of being reasonable, this would be in the child’s best interests. Applicable Law [ 46 ]

Section 37 of the Family Law Act requires that when a court makes an order respecting guardianship, parenting arrangements or contact with a child, “the court must consider the best interests of the child only.” In determining what is in the best interests of a child, all of the child's needs and circumstances must be considered. Subsection (2) of

section 37 specifically mentions the following factors: (

a) the child's health and emotional well-being; (

b) the child's views, unless it would be inappropriate to consider them; (

c) the nature and strength of the relationships between the child and significant persons in the child's life; (

d) the history of the child's care; (

e) the child's need for stability, given the child's age and stage of development; (

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (

g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being.

[ 47 ]

Section 37 goes on to provide, in subsection (4) that “in making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.” [ 48 ] The parties in this case are advocating for some form of a shared parenting regime. In such cases,

section 9 of the Federal Child Support Guidelines applies. It provides as follows: Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account (

a) the amounts set out in the applicable tables for each of the spouses; (

b) the increased costs of shared custody arrangements; and (

c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. [ 49 ] In making the necessary calculations under

section 9, the income of a parent’s new spouse is generally not a factor in the calculations, unless one parent is making a claim for undue hardship under

section 10 of the Guidelines. [ 50 ] Counsel for the Respondent has asked that an income be imputed to the Applicant for the purposes of the calculations under

section 9 of the Guidelines. Under

section 19 of the Guidelines, a court may impute an income to a parent where, among other reasons, the court finds that the spouse is “intentionally under-employed or unemployed”. Analysis [ 51 ] The Applicant and the Respondent became parents of this child when they were both eighteen years old. It was a very challenging time for each of them. The Applicant, by her own admission, was trying to put some drug use in her past and by all accounts she has been successful in doing so.

At a time when she needed a strong support network, she did not have the best role models, but in spite of this she has become an excellent mother to her child. Similarly, the Respondent had to confront some mental health issues, and he has done an exemplary job in seeking and following the advice of his mental health professionals. He too has placed his role as a parent in a place of paramount importance in his life and he has become an excellent father to his child.

By all accounts, together they have raised a happy and healthy child who has not suffered many of the adverse effects that many children from split homes encounter. This must very likely be so because these parents have conducted themselves with maturity and reasonableness in seeking to shelter their child from any resentment that exists between them. [ 52 ] It became clear from the evidence presented that there are resentments that linger from the past.

Court proceedings always make it more difficult for parties to let go of resentment because people are made to feel that if they are somehow complementary of the other party, or if they acknowledge their own shortcomings in some manner, this will only serve to weaken their case and it will be somehow used against them. It is unfortunate because the Applicant and the Respondent have proven themselves to be reasonable and flexible and have shown the ability to love their child more than their conflict. It is hoped that their lives will continue in this direction following the outcome of this application.

They each have many positive qualities as parents and each should recognize how lucky their child is to have each of them in her life. [ 53 ] As young parents living in current economic times, each of these parties need their own families to help them meet their parental responsibilities. They should be grateful for the help that their families offer when it comes to things such as shelter, child care and in furthering their own abilities to better their own lives. But they should be cautious when those families become a force of negativity and anger, and promote the disparagement of L.G.W.’s other parent.

This is something that is not in L.G.W.’s best interests. She needs to grow up feeling that she can love both of her parents, without feeling that by loving one parent, she is somehow being disloyal to her other parent. The examples she sees modelled by her mother and father will shape her expectations of what it means to be a mother, a parent, and a partner. As Doctor Posthuma has pointed out, the child may not yet be fully aware of the tension which exists between the parties.

The actions of the Applicant and how the Applicant is treated will serve as a model for the child when it comes time for her to form her own relationships. For her to observe her mother being disparaged may teach her that she deserves similar treatment when it comes time for her to build her own family partnership. Similarly, if she is subjected to witnessing disparagement of her father the Respondent, she may choose to mirror this behaviour in her own relationships, contributing to a lack of harmony in her own future home life. [ 54 ] Fortunately for L.G.W., it appears that her parents get this.

In the past each has shown the ability to be reasonable and to treat one another with civility. This may have been more difficult with this court action. The Applicant’s fiancée became very angry over communications from the Respondent’s lawyer and his family may have developed hostility to the Respondent’s family. This litigation has caused the parties to relive three past resentments: (1) the Applicant’s belief that the Respondent did not assist enough in the raising of the child and the belief that she has been unfairly criticized by the Respondent’s mother for her ability to care for her child;

(2) The Applicant’s belief that the Respondent attempted to abduct her child and the Respondent’s belief that the Respondent raised the child in an unsafe environment; and

(3) The Applicant’s resentment over having to deal with a number of complaints to the Ministry of Children and Families from the Respondent’s mother. [ 55 ] The opportunity to vent about these resentments has come and gone with this litigation. No useful purpose is served in dwelling on them and they are best left in the past for the sake of the child. It is time for the parties to look to the future and to cooperate in building the best life possible for their child. [ 56 ] Both of these parties are capable and loving parents and both deserve a role as guardians.

Both agree that L.G.W. should be co- parented in some fashion, though there is disagreement as to precisely what that should look like. The recommendation of Doctor

Posthuma is one of having the child spend alternating weeks in each parent’s home. There are a number of advantages to this recommendation. Firstly, the equality will dispel any notion of there being a winner and a loser and will recognize importance of both parents in the child’s life. It will also allow the parties the ability to plan their schedules in the long term. It will also address the issue of the inequality in weekend parenting time and will divide responsibility among the parents for both the school times and the fun times.

It will also give each parent an equal opportunity to have the child participate in activities with their respective sides of the family. [ 57 ] For reasons previously stated, it is important that there be one “decider” on issues such as schooling and other contentious issues. As counsel point out, leaving the status quo may only encourage more litigation, something that is not in the child’s best interest.

Doctor Posthuma has recommended that, where the parties are unable to reach agreement while exercising their parenting responsibilities, the Respondent would be more likely to make the right decision about what is in L.G.W.’s best interests. This conclusion is certainly supported by the evidence, however in making this statement, it should not be inferred that there is anything wrong with the Applicant or that she is not a good person. [ 58 ] The Respondent has demonstrated the calmer demeanour throughout the conflict. He listened calmly when criticized by the Applicant and by other witnesses.

In a number of instances he has shown the willingness to compromise on matters. He is less insistent about having his routine followed and more flexible when it comes to such things as interference with meal times to accommodate the child’s activities with other children. He also appears to be more resistant to any pressure from his own family to be critical of the Applicant, and was less reluctant to acknowledge her positive qualities when giving his evidence.

Conversely, the Applicant must contend with the anger directed towards the Respondent by her fiancée and his family when seeking to make fair decisions about what is in the child’s best interest, and would be confronted with greater pressure than the Respondent would be when it comes to eliminating any negative considerations against the other party while in the course of making decisions that are best for L.G.W. [ 59 ] Giving the Respondent decision making authority may place the Applicant at a disadvantage when it comes to selecting a school for the child in the fall.

There are a number of things that should be considered. While having the child attend a school that is not close to the Applicant’s home will present a challenge for her, it is not a sufficient factor to outweigh the other problems considered in the previous paragraph. The Respondent does not necessarily have to rule out the option of finding a school closer to the Applicant’s home, and may be open to looking at schools easier accessed by the Applicant if other advantages for L.G.W. present themselves.

With an equal parenting arrangement, the Applicant will now have a greater ability to look for part-time employment that will help her with the cost of transportation and bridge tolls. Having family members assist her in getting the child to school on days when L.G.W. is in her care will afford those family members to channel their energy in a more positive direction, one that will help the child, rather than disparage the child’s father. [ 60 ] The Applicant has suggested that the

section 211 report is biased, and while there may be areas in the report which are not precise or in which things may have improved since the report was written, the report writer’s conclusions appear to be correct. It must once again be emphasized that the report does not conclude any fault in the Applicant as a parent, and the evidence certainly supports the conclusion that both she and the Respondent have many strengths as parents.

Both the report and the order which will now be made in this matter only seek to create a structure that will be in L.G.W.’s best interest and work toward her future happiness and healthy development. [ 61 ] One issue remains, and that is financial support for the child. The law requires both parents to contribute financially to supporting the children that they bring into the world, in proportion to their income or income earning capacity, as codified in the Child Support Guidelines.

This result may seem unfair to the Respondent, given that the Applicant’s household income may be the larger one, but the law imposes the obligation of support on the parents of the child in proportion to each parent’s income and it is to them that the child is entitled to look to for support. [ 62 ] The Respondent has disclosed annual earnings in 2015 in the sum of $22,000 and this amount should be used to apply the calculations required by

section 9 of the Guidelines in a shared parenting situation such as this. [ 63 ] I do not agree with the Respondent’s counsel’s submission that it has been shown that the Applicant is intentionally under- employed or unemployed. She has been in her new home for only a month, and until the granting of this order, she has had greater child- care responsibilities. The new structure imposed as a result of this order will afford her the time to work more, but she must first find that part-time employment. For the time being the income attributed to her will be based on her earnings in 2015 (the sum of $5,833).

These calculations work out as follows: Party Guideline Income Guideline Payment Applicant $5,833 $0 Respondent $22,000 $190 Net result $190 by the Respondent [ 64 ] The Applicant will be given the next four months (i.e. until September 30, 2016) to find part-time employment should she choose do so.

She is not required to find employment, but if she chooses not to, the contention by the Respondent’s counsel that the Applicant is intentionally under-employed or unemployed will be more accurate. [ 65 ] Accordingly, the Respondent shall pay to the Applicant, for the support of the child, the sum of $190 per month, payable on the 1 st day of each month commencing June 1, 2016, and continuing on the first day of each month thereafter until (and including) September 1, 2016 or until further order of this court. (This will allow the Applicant to argue for an extension of the child support order if she is not able to find any employment despite using her best efforts to do so). [ 66 ] It will be further ordered that the parties are to inform one another of any change of employment or occupation, including the amount of compensation for such new employment.

The parties will also be required to exchange a copy of their Notice of Assessment provided by the Canada Revenue Agency by June 1 of each year.

Order [ 67 ] For the foregoing reasons, it is ordered as follows: Upon the Court being advised that the name and birth date of the child who is the subject of this application is L.G.W., who was born on (d.o.b.), 2011: 1. This Court is satisfied that the Applicant V.L. M-B. and the Respondent Z.S.W. are the guardians of the child pursuant to section 39 (1) as well as under section 251 (1) (

a) of the Family Law Act. 2. Pursuant to

section 40 of the Family Law Act the Respondent Z.S.W. will have the following parental responsibilities for the child: (

a) Making day to day decisions affecting the child and having day to day care, control and supervision of the child, with input from the Applicant (subject to the terms of this order); (

b) Making decisions about where the child will reside (subject to the terms of this order); (

c) Making decisions about the child’s educational, cultural, medical, religious and spiritual upbringing, with input from the Applicant; (

d) Making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location, provided that nothing shall prevent the Applicant from scheduling extracurricular activities for the child when the child is in her care. The Respondent shall not

schedule activities for the child when the child is in the care of the Applicant without the Applicant’s consent; (

e) Making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, with input from the Applicant; (

f) Subject to

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

g) Applying for a passport, licence, permit, benefit, privilege or other thing for the child; (

h) Giving, refusing or withdrawing consent for the child, if consent is required; (

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

j) Requesting and receiving from third parties health, education or other information respecting the child, provided that the Applicant shall also be entitled to request and receive such information; (

k) Subject to any applicable provincial legislation:

(1) Starting, defending, compromising or settling any proceeding relating to the child; and

(2) Identifying, advancing and protecting the child's legal and financial interests; (

l) Exercising any other responsibilities reasonably necessary to nurture the child's development. 3. It is further ordered that the parties shall continue to follow the parenting time

schedule that they are currently operating under, as set out in the calendar marked as Exhibit 6 at the hearing of this matter, up to and until June 30, 2016. Thereafter, the child shall be in the care of the Applicant and the Respondent for alternating periods of one week, with the exchange of the child occurring each Friday at 5:00 p.m. or at such other time as agreed to by the parties. Commencing the week of the Friday, July 1, 2016 the child shall be in the Respondent’s care. 4. Notwithstanding the aforesaid

schedule of parenting time, the Child shall be in the care of the following parties at the following times: (

a) On Mother’s Day of each year the Child shall be in the Applicant’s care from 10:00 a.m. to 7:00 p.m. at a minimum; (

b) On Father’s Day of each year the Child shall be in the Respondent’s care from 10:00 a.m. to 7:00 p.m. at a minimum; (

c) From Christmas Eve to Christmas morning in odd numbered years the Child shall be in the care of the Applicant and in the care of the Respondent in even numbered years. If the parties are unable to agree upon the times of exchange, these times shall commence at 6:00 p.m. on Christmas Eve until noon on Christmas Day; (

d) In odd numbered years, the Child shall spend Good Friday and Easter Saturday in the Applicant’s care and Easter Sunday and Easter Monday in the Respondent’s care, with that trend reversing in even numbered years. If the parties are unable to agree upon the times of exchange, these times shall commence at 10:00 a.m. on Good Friday until 7:00 p.m. on Easter Saturday, and 10:00 a.m. on Easter Sunday until 7:00 p.m. on Easter Monday; (

e) The Child shall be in the Applicant’s care on Halloween in even numbered years and in the Respondent’s care in odd numbered years. If the parties are unable to agree upon the times of exchange, this shall commence at 5:00 p.m. until 8:00 p.m.; (

f) On the child’s birthday, each parent shall have the child for an uninterrupted three hour block of time. If the parties are unable to agree on their respective times, the parent who the child is not residing with on that day shall have the right to select when the three hour period begins and ends, upon first providing the other parent with twenty-four hours prior notice of the times selected. (

g) The times for commencement and end of these specific parenting times apply only if the Child is otherwise not already residing with

that parent at that time. 5. The Respondent shall pay to the Applicant, for the support of the child, the sum of $190 per month, payable on the 1st day of each month commencing June 1, 2016, and continuing on the first day of each month thereafter until (and including) September 1, 2016 or until further order of this court. 6. The parties are to inform one another of any change of employment or occupation within seven days of such change, including the amount of compensation for such new employment. 7.

The parties shall exchange a copy of their Notice of Assessment provided by the Canada Revenue Agency for the previous fiscal year by June 1 of each year. Dated at the City of Abbotsford, in the Province of British Columbia this 31 st day of May, 2016. ______________________________________________ (The Honourable Judge K.D. Skilnick)