J.M.H. v. J.R.W., 2018 BCPC 269

Citation: J.M.H. v. J.R.W. 2018 BCPC 269 Date: 20181011 File No: 15060 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: J.M.H. APPLICANT AND: J.R.W. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Applicant: Mr. Stephen Soll Counsel for the Respondent: Ms. Natalie Hebert Place of Hearing: Kamloops , B.C. Dates of Hearing: July 23, 24, 25 and 26, 2018 Date of Judgment: October 11, 2018

[ 1 ] This is an application by J.M.H. to have primary residence of her son, P.W., who is now five years old. J.R.W. is P.W.’s biological father. Though the parties were in a relationship when P.W. was born, they have never lived together. The parties do not dispute that there should be an order that recognizes both parents as guardians. [ 2 ] J.R.W. seeks shared parenting on a week-on - week-off basis. Both parents have significant co-parenting challenges. In addition, J.R.W. was not particularly involved in P.W.’s life until the Ministry of Child and Family Services became involved.

Even then, he was content to relinquish his responsibilities to P.W.’s maternal grandmother, Ms. M., until very recently. J.M.H. has the additional challenge that she has a drug addiction. While it appears to be managed at the moment, it is early days yet and may resurface. The drug addiction is not minor. It has resulted in P.W.’s removal and, more importantly, put him at very significant risk during one relapse episode. J.M.H. nearly died in his presence. The horrifying prospect cannot be overstated. [ 3 ] P.W. is currently having parenting time on a three day on - three day off schedule.

He is not managing this well. This will become even more complicated now that he commenced Kindergarten in September. [ 4 ] Finally, there is the matter of the appropriate child support once the parenting arrangement has been established. [ 5 ] J.M.H. is 30 years old. She works as an office assistant for [omitted for publication], which employment she obtained this year. Her hours are 7:00 a.m. to 3:00 p.m., Monday to Friday, with no weekends required. J.M.H.’s step-father is the [omitted for publication] for the school that P.W. will be attending this fall.

J.M.H. lives across the street from her parents and therefore is able to entrust P.W. in their care until he gets on the [omitted for publication] with his grandfather. J.M.H. will be off work every day in time to care for P.W. when he comes home from school. The school is convenient to her home and the days will not be of a challenging length for P.W. [ 6 ] J.R.W. is a [omitted for publication] and owns his own business, [omitted for publication]. This business is located off the [omitted for publication] Highway. While it is a business located in a semi-industrial business area, he has a suite above the shop.

It does not have adequate housing for P.W. but the financial challenges of this court case have prevented J.R.W. finding a more suitable residence. While J.R.W. is not close to P.W.’s school, he is in control of his own hours and would be able to get P.W. to and from school daily while P.W. is in his care. [ 7 ] J.M.H. resides in the carriage-home attached to her grandparents’ house across the street from her mother and step-father. She acquired this residence in April 2018. It appears that, so long as J.M.H. is doing well, her grandparents are prepared to have her continue to reside there.

The photographs of the inside of the home and the yard show that it is entirely adequate and supportive for a child of P.W.’s age. There is a safe and child-appropriate yard, plenty of space inside for P.W.’s personal belongings, and a tidy well-tended home. He has his own room and his own play space. [ 8 ] At J.R.W.’s home, P.W. shares a bunkbed style sleeping arrangement with his half-brother, M. His half-brother is not always present because he lives with his mother in Quesnel. This space is open and J.R.W. shares it with his sons.

J.R.W. has acknowledged that his living space is not appropriate for a long-term arrangement. There are also challenges in that there is no green space or play area outside of the suite. The business premise is flanked by a pub on one side and a large parking lot and industrial compound on the other. The property fronts the highway which poses an additional risk for P.W. J.R.W.’s [omitted for publication] shop is also a part of the premises with access to his office and living area. While he is confident that he is able to (and has to date) keep P.W. out of the shop it is an additional hazard.

This accommodation is not in P.W.s’ best interests. [ 9 ] Across the street from J.M.H.’s property, her family owns [omitted for publication]. This is a combined farm and [omitted for publication]. P.W. has horses to ride there and enjoys being with the animals. He performs tasks on the farm and plays with the animals. It is a wholesome and healthy environment for P.W. [ 10 ] Ms. Hebert argued that Ms. M. has worked with J.M.H. to exclude J.R.W. from P.W.’s life. This is not so.

J.R.W. was welcomed and frequented this home not only on his own but with his other son M. and J.M.H.’s mother. [ 11 ] J.R.W.’s family is not in Kamloops. His mother resides in Quesnel and they are very close. J.R.W. has an excellent relationship with M.’s mother. They manage to co-parent M. well. [ 12 ] J.M.H. has two sisters who reside in Kamloops. One sister has two children aged 2 and 4. The other sister has three children who are aged 2, 7 and 12. P.W. sees his cousins at least once a week and as much as three times a week.

He does have another cousin in Victoria but the mother of that child has been estranged from this family for some years. There are significant family supports in Kamloops for P.W. They have been present throughout his entire life. They have been particularly important to him while his father was absent and his mother was going through her drug addictions. [ 13 ] J.M.H.’s troubles with drug addiction largely commenced in 2007 when her father passed away. He had been sick for many years which had created a tense home environment for the family. Immediately upon her father passing away, J.M.H. went to university.

It turned out she was not at all prepared, having not yet dealt with her grief. Her boyfriend at the time introduced her to drugs which began her path to addiction. She soon realized that she was not able to manage the drug addiction and contacted her mother. Regrettably, she would continue to use drugs from time to time, particularly when things became difficult for her. On each occasion, she would contact her mother and return home until she could regain control of her addiction. [ 14 ] This all pre-dated J.M.H.’s introduction to J.R.W. They met at a wedding in July 2012 at [omitted for publication].

He was a groomsman and she was serving the party. J.R.W. was living in Quesnel. He was a [omitted for publication] then but largely worked contracts both in Quesnel and in camps. On their third date, J.M.H. told J.R.W. of her history of drug use and her membership in Narcotics Anonymous. Some months later, J.M.H. met M. for his 5 th birthday. After that, J.M.H. would see M. from time to time when she would visit J.R.W. in Quesnel. [ 15 ] J.M.H. gave some evidence about what she perceived to be poor parenting skills on J.R.W.’s behalf. When M. acted out, she

observed that J.R.W. would reward him with treats or toys. There seemed to be no structure and M. would act out as a result. [ 16 ] Throughout the long distance relationship, J.M.H. and J.R.W. were in frequent contact until J.M.H. became pregnant. From her perspective, he stopped having time for her once she was pregnant. She said it was a very lonely time without him. He did not assist with the pregnancy, visit or engage in any of the preparations. [ 17 ] Despite this, they both went to Fort St. John to work on a contract for him. She was unable to continue with the work.

During this time, she claimed that there was an ultrasound scheduled which he had persuaded her to cancel. He expressed that it was a waste of money. However, they did ultimately go for a much more significant ultrasound, being a 3D one. It is minor events like this that can build both in importance and size over time. It is counterproductive to establishing a good co-parenting relationship. [ 18 ] J.M.H. also painted a picture of J.R.W. having a significant alcohol problem. From her perspective, he does drink too much.

She has observed him having drinking competitions with himself, drinking until he blacks out, and always having beer cans scattered over his home. She said that even when he had M., he would be at parties drinking and smoking marijuana. She would be the only sober person there with all of the children. There is one incident that J.R.W. concedes he drank well over his limit. The evidence does not otherwise support an allegation of alcohol abuse. This case should not be about one parent’s addiction being set off against the other parent’s addiction.

That is not how the best interests of the child will be resolved. [ 19 ] The relationship continued into 2013. J.M.H. barely saw J.R.W. in this time but he was present for the birth. He only stayed for a week during which they went to Victoria to see J.M.H.’s great grandmother, who was dying. J.M.H. believed that J.R.W. left because he was angry that he was not making money. J.R.W. believes he left because there was nothing further that could be done and he did have work he could do to earn an income. [ 20 ] Afterward, J.M.H. saw J.R.W. every few months.

There was an incident when P.W. was in the hospital in October 2013. J.M.H. called J.R.W., as she ought to, at his camp. He offered to come out but she said that it was probably not necessary. Ms. Hebert argued quite rightly that J.R.W. should have been able to rely on this information given his distance. However, I note that he also did no follow up until he left camp. He did come to see P.W. a week later, when P.W. was already out of the hospital. [ 21 ] There are significantly conflicting perspectives on this incident. J.M.H. was already feeling abandoned and unsupported.

From her perspective, J.R.W. ought to have come regardless of whether she said that it was not necessary for him to be there. As far as she is concerned, if your child is in the hospital, you go see him. J.R.W. was persuaded that his presence was not required and so he did not leave camp. Given the number of days it would have taken for him to arrange transportation out of the camp and given the reassurances he had from J.M.H., his actions could not have been faulted if he was otherwise a fully engaged parent.

Instead, the fact that he was so little engaged already, given the conflicting priorities with M. and his employment, J.M.H. felt even less supported. [ 22 ] This was compounded when J.R.W. was invited to come with J.M.H. and P.W. to the follow-up appointment to the pediatrician after that incident. J.R.W. excused himself from that attendance because he had to buy a quad for his father. This has remained a significant issue for J.M.H. who sees J.R.W.’s choice as firmly fixing his priorities. [ 23 ] The relationship quickly deteriorated after P.W. was born.

The parties rarely communicated and their communications were not pleasant. J.M.H. continued to observe interactions between J.R.W. and M. that left her questioning his ability to parent P.W. She did not want P.W. to develop the behaviour problems she saw M. developing. While J.M.H. was flexible with parenting time, J.R.W. was only having 24 hour visits. He would see P.W. only about once a month. [ 24 ] In 2014, J.M.H. had a significant lapse with her addiction. She went to [omitted for publication] in Nanaimo for 56 days. During that time, her mother cared for P.W. together with a babysitter and some friends.

J.R.W. was also in town and was able to assist from time to time. When J.M.H. returned from [omitted for publication], she resumed caring for P.W. [ 25 ] J.M.H.’s residences were not particularly stable in the years that followed. It is not uncommon given her level of employment, single parenting and other challenges. This was exacerbated when J.R.W. reduced the child support without notice. J.M.H. had to move into a one bedroom apartment with P.W. [ 26 ] J.R.W. had moved to Kamloops as well but moved out to [omitted for publication] in 2015.

J.M.H. said that she went to his home two or three times and observed that he did not have appropriate food in the fridge for P.W. She stressed from early on that she wanted P.W. to eat healthy food. [ 27 ] There were additional challenges J.M.H. found with J.R.W.’s parenting. She was troubled by an event where J.R.W. coloured Thomas the Tank Engine on some pink boots that P.W. liked. She also was frustrated by J.R.W. not taking P.W. to dentist or doctor appointments. [ 28 ] Child support was also an ongoing stress for J.M.H.

J.R.W. started out paying $1,000 per month in January 2014, which he reduced significantly to $600 per month in March 2015. He did not warn her that this was going to happen or consult with her about the appropriate level of child support he ought to be paying. He did not turn his mind to the impact this would have on P.W. and caused considerable stress for P.W.’s mother, and therefore for P.W. as well. That does not mean to say he was not entitled to a reduction in child support to match his income and circumstances.

The criticism lies in his high handed manner. [ 29 ] J.R.W. has similarly had parenting concerns with respect to J.M.H. quite apart from her drug addiction. He acted thoroughly inappropriately on one occasion when he found J.M.H. in a vehicle with some friends smoking cigarettes. P.W. was supposed to be getting into the vehicle and J.R.W. conducted himself quite vocally and inappropriately. None of the people in the vehicle was concerned enough to call the police.

However, J.M.H. and J.R.W. became engaged in some form of pushing match in the presence of their child which was entirely inadequate parenting on both parts. That does not mean to say that he should not have objected to anyone smoking around P.W. It was his right to object. The manner of objection and the failure to resolve the conflict rationally are what makes co-parenting a difficult proposition for these two parents.

[ 30 ] In September 2015, J.M.H. had another relapse. She had been 16 months clean by this time. She left P.W. with her parents and went into detox so that she could get into the Drug and Alcohol Recovery Program. This was a day program that went from 9:00 to 12:00 daily. She finished the program successfully. During that program, P.W. continued in her care. [ 31 ] J.R.W. did not have the care of P.W. during the recovery program. J.M.H. felt that J.R.W. saw her parents more than he saw P.W. He denies this and feels he cared for P.W. much of the time.

Certainly, J.R.W. was content to leave P.W. under the care of J.M.H.’s family. [ 32 ] There have also been some poor communications about prospects for parenting time so that P.W. can see his brother. Both parents have different perspectives on how this unfolded. It does not go into whether or not either one of them can capably care for P.W. but does show that they have poor communication and insight into how to make shared parenting more accommodating for P.W. [ 33 ] On the other hand, J.M.H. did spend one Christmas in Quesnel to accommodate P.W. having Christmas with his paternal family.

J.R.W. made this as welcoming to J.M.H. as he could by decorating a hotel room that he paid for. It shows promise that these parents can accommodate each other while looking after the best interests of P.W. The problem is that it is so limited. [ 34 ] On the matter of parenting P.W., J.M.H. raised concerns that when she packs clothing for P.W., they often come back covered in bodily fluids or they do not come back at all. Also, it is J.M.H. who has to remind J.R.W. to have contact with P.W. on Christmas and on P.W.’s birthdays. She feels that she is always the one to initiate the calls.

J.R.W. said that he does not like to call when he knows that P.W. is going to be at her parents’ place because he feels unwelcome and uncomfortable. This is despite him saying that he was familiar enough with the maternal family that he would walk into their home without knocking. The inconsistency is irreconcilable. [ 35 ] There was also an incident where J.M.H. was returning from a trip to Vancouver and attempted to call all day to connect with J.R.W. for picking up P.W. J.R.W. said that his phone was not working.

The logical action would have been to find another telephone and contact J.M.H. to let her know what was going on so that she would not worry. [ 36 ] It is these issues that raise significant concerns about the ability of these parents to co-parent in a way that is not disruptive or dysfunctional for P.W. [ 37 ] J.M.H. has also raised concerns about the diet that J.R.W. feeds P.W. When J.R.W. described the meals that he feeds P.W., there is cause for concern.

It appears that most of their meals are consumed either off an inadequate hot plate and microwave in J.R.W.’s apartment, and are comprised primarily of macaroni or chicken nuggets; or he dines at Denny’s Restaurant. J.R.W. assured the court that the Denny’s meals are only a special treat before P.W. is exchanged back to J.M.H.’s home. However, it behoves the parents to coordinate an appropriate diet for P.W. so that it is consistent between their homes.

A healthy diet is essential for the proper care and keeping of a child and so it is essential that they cooperate with one another in that regard. [ 38 ] The most significant relapse occurred for J.M.H. in July 2017. She overdosed and was hospitalized. During that overdose, she had the care of P.W. She collapsed outside in the front yard of her sister’s home. P.W. was left wandering in the yard with her. He was at risk of physical harm, not to mention the trauma of seeing his mother passed out on the ground. Fortunately, a neighbour was able to call for medical assistance and take P.W. into her care.

There were a number of really significant parenting problems that arose from this, not the least of which was J.M.H.’s and her family’s failure to inform J.R.W. [ 39 ] The first was that J.M.H. did not put P.W. into her parents’ care or J.R.W.’s care when she knew she was going to have a relapse. There is no excuse for this. The second is that she did not ensure that, while she was using, there was adequate support around for herself. The outcome could have been significantly worse not only for her but for P.W.

Finally, and the most troubling of all, was that J.M.H.’s parents did not tell J.R.W. that his son needed him; and they misled the social worker who was looking for an appropriate safety plan. [ 40 ] As a result, P.W. was placed with J.R.W. on as part of a safety plan that required both he and J.M.H.’s mother to care for P.W. J.R.W. then took that safety plan and conducted himself in a highhanded manner. He took P.W. from an environment of comfort, security and support and almost entirely cut off contact with the family who had been P.W.’s primary support since birth.

There is nothing about J.R.W.’s conduct that was remotely in P.W.’s best interests. It was a truly horrible course of conduct that entirely disregarded the impact this would have on P.W. [ 41 ] Along the same vein, J.M.H.’s parents did not respect J.R.W.’s parenting rights or responsibilities. J.R.W. had every right to be gravely concerned about the risk P.W. was put to during this relapse. While he was less than supportive and less than engaged in prior relapses, he was prepared to and did step up to care completely for P.W.

He ought to have seen that ongoing engagement with P.W.’s daily supports was equally as essential to P.W. as a safe and secure environment. J.M.H.’s family and J.R.W. ought to have put aside their personal issues to work better for P.W. [ 42 ] J.M.H. believes that this final relapse and treatment has been a significant experience for her. For the first time, she has dealt with her father’s death, her unsupported pregnancy, and all of the traumas that she has endured. She has now got the appropriate tools in place. She has essential supports, employment and a stable home environment. Time will tell.

She prefers not to deal with J.R.W. because he is controlling and demanding. That is not an option if these parents are to attend to the best interests of P.W. [ 43 ] What also remains to be seen is whether these parents can co-parent. One incident that defies explanation was when J.R.W. heard from P.W. that P.W. and his mother had been in an accident. What ensued was entirely irrational behaviour, unless one sees it as manipulative and controlling. J.R.W. demanded - without any right to do so - to see J.M.H.’s vehicle. J.M.H. was baffled by the inquiry because she had not been in an accident.

His tone and behaviour caused her concern, so her mother attended in her place. When J.M.H.’s mother arrived at J.R.W.’s home, he refused to come out and look at the vehicle because it was a different colour from what P.W. had described. J.M.H. is of the view that J.R.W. refused to come out because he had expected J.M.H. to be there. She is very likely right. Instead of simply leaving, though, J.M.H.’s mother engaged in a confrontation with J.R.W. in P.W.’s presence. [ 44 ] I agree with J.M.H. that this was entirely manipulative and demonstrates a strong desire on J.R.W.’s part to control her. He has

no right to do so. J.R.W.’s approach to this vehicle accident, fully understanding that a child of P.W.’s age may well be conflating incidents that could have occurred as much as years (as in this case), was entirely irrational. It is a symptom of a severely dysfunctional co-parenting arrangement. That does not mean to say that Ms. M. acted appropriately either. Both she and J.R.W. need to reflect on their actions. [ 45 ] P.W. is now engaged in some extracurricular activities including swimming and judo. These have been very positive for P.W.

There was some dispute about whether J.R.W. thought swimming was important. For J.M.H., the swimming is essential because they live on a pond near the river. She recognizes, though, that judo has been very positive for P.W. who suffers from some behaviour challenges. More importantly, the parents are able to see each other at these extracurricular activities. It has given them an opportunity to try to co-parent more constructively. J.M.H. does not feel threatened because of the public nature of the encounters.

J.R.W. feels reassured that, by seeing her, he can tell that she is not in the throes of a drug addiction. [ 46 ] J.R.W. was evidently parenting P.W. during the times that J.M.H. had each of her relapses. Never on any of those occasions was he able to identify that she was about to have a relapse. In my view, his need to see her is, once again, more about control than it is about reassurance. That is not to say that his concern about her drug addiction is not a serious one. She has put P.W. to significant risk with the latest overdose.

While she conducted herself appropriately in the past, this incident cannot be dismissed easily. [ 47 ] Another significant concern is the approach to P.W.’s emotional issues. The Ministry of Child and Family Services outlined some issues that could be addressed with respect to these. J.M.H. wanted P.W. to receive counselling. J.R.W.’s response was that she had done enough to P.W. and that “kids will be kids”. As a result, J.M.H. was not permitted to take P.W. to counselling.

This is not in P.W.’s best interests. [ 48 ] J.M.H. is also concerned about the discussions that J.R.W. and his mother are having about J.M.H. in P.W.’s presence. On one occasion, P.W. came home upset about this. J.M.H. texted J.R.W. that they had to be careful about what they said around P.W. He told her to “fuck off and get a life”. This incident was only one month before trial. It speaks volumes. [ 49 ] Similarly, Mr. B. denied that he or Ms. M. use demeaning language when referring to J.R.W. However, he inferred J.R.W. was “stupid” while he was giving evidence. It belies his assertion.

Neither family should be engaging in such demeaning language in reference to the other family under any circumstances where P.W. may overhear. It is not constructive for either family to engage in such destructive discourse even absent P.W. [ 50 ] There was also a communication book in place pursuant to an interim order. He refused to write in it because he said other people were writing in it. J.M.H. said that it was her writing but that she used two different colours. J.R.W.’s approach to this is, again, controlling and manipulative.

It was an opportunity for anyone who was giving care to P.W. to communicate information back and forth in a meaningful way. He refused to participate. This is not in P.W.’s best interests. [ 51 ] I turn now to a consideration of the best interests of the child as they apply to this case:

a) P.W.’s health and emotional wellbeing [ 52 ] It appears that P.W. is well adjusted and happy in both homes, as well as when engaging in activities at the [omitted for publication]. However, the daycare has reported that P.W. has difficulty with the changes from home to home, which difficulties result in temper tantrums. J.M.H. has also seen some of this in her home where the routine is somewhat more structured than in J.R.W.’s home. P.W. clearly needs a better, less disruptive routine. Neither parent denies this. [ 53 ] It should also be noted that P.W. also requires the support and care of his grandparents.

They, and the rest of his extended family, have been significant parts of his life. These relationships and the stability they bring must be preserved. [ 54 ] It also needs to be remembered that P.W. has a half-brother on the W. side of the family. While there is an age disparity, M. is very much an important part of P.W.’s life. That relationship and the relationship with J.R.W.’s mother must also be preserved.

b) The child’s views, unless it would be inappropriate to consider them [ 55 ] P.W. is very young and his views may be quite changeable. In any event, there has been no suggestion that P.W. is any less than quite willing to be cared for by either parent. It will assist him a good deal if the parents would coordinate better on his routines, diet, homework and other needs as they move into the future.

c) The nature and strengths of the relationships between the child and significant persons in the child’s life [ 56 ] There is no question that P.W. has a strong bond with both parents and that P.W. loves them both. J.M.H. argued that J.R.W. often puts his own interests before those of his son. Certainly when he was not a consistent caregiver of P.W., some of his actions support that view.

However, he takes care to attend to P.W.’s safety when at the shop; engages with him in healthy, outdoor activities after school; and is very concerned about the risks P.W. may face in the event of another relapse by J.M.H. [ 57 ] What concerns me most about J.R.W.’s conduct was how he abused the supervision order and cut the M. out of P.W.’s life at a crucial time for the child. This was clearly putting J.R.W.’s interests and views well ahead of P.W.’s.

The M./H. family conducted themselves inappropriately by suggesting to the social worker that J.R.W. was not engaged and by failing to disclose to J.R.W. the nature of J.M.H.’s relapse. That does not excuse J.R.W.’s conduct. [ 58 ] My concern is that J.R.W. has developed such an animosity toward a family that had once been very welcoming to him and very supportive of him that he will not protect P.W.’s relationships with them. Conversely, there is no suggestion that the M. or J.M.H. do anything to prevent M. or J.R.W.’s mother from being engaged in P.W.’s life.

d) The history of the child’s care

[59] J.M.H. was the primary caregiver of P.W. until the near fatal overdose in 2017. J.R.W. had been content to allow J.M.H. andthe M. to care for P.W. while J.R.W. was away working. The arrangement was not unreasonable and he cannot be faulted for otherstaking over where he was not inclined to do so. However, he has shown himself to be a capable caregiver, with some adjustments toaccommodations, diet and communications with P.W.’s mother.

e) The child’s need for stability given the child’s age and stage of development [60] P.W. is very much in need of stability. The daycare has reported the challenges P.W. has with the frequent changes inhousehold. J.M.H. has reported the impact on P.W. J.R.W. has been a bit dismissive, suggesting that P.W. has no such issues in hishome. However, J.R.W. also does not follow the same parenting routine that J.M.H. does. [61] On that note, one of the points of contention has been P.W.’s bedtime. On this point, J.R.W. is clearly more responsive toP.W.’s needs.

P.W. apparently arises at an unacceptable hour in the morning. It compels J.M.H. to rise with him as well as anyone elsewho might be providing care to P.W. The reasonable conclusion to reach is that P.W. is going to bed too early. J.R.W., on the otherhand, puts P.W. to bed at a reasonable time and P.W. rises at a reasonable hour. This is one of the points on which the parents should beable to have a rational discussion reaching an outcome that is in P.W.’s best interests. [62] On the other hand, J.M.H. has a routine for meals, baths and bedtime.

This routine should be observed in both households withflexibility to allow for differences in parenting styles. It can be achieved with a fairly simple order.

f) The ability of each person to exercise his or her responsibilities [63] This is a fairly difficult topic for these parties. J.M.H. has throughout P.W.’s life, with the exceptions of her relapses, been themost consistent and supportive caregiver to P.W. She has had very little support from J.R.W., no matter what his perceptions may be ofhis engagement. J.R.W., until he had the care of P.W., was not involved in P.W.’s life on a daily basis, or even to a great degree. On theother hand, he has an understandable concern about J.M.H.’s drug use, overdoses and risks of relapse.

While her ability to exercise herresponsibilities has been exemplary apart from those overdoses, the relapses and overdoses are not minor matters. [64] J.R.W. has not been engaged in those inconvenient incidentals to a child’s life such as obtaining vaccinations, attending medicalappointments, and setting up the dentist visits. He is dismissive of J.M.H.’s efforts to involve him in these and is not supportive inshouldering his share of that responsibility. [65] What must also be considered under this heading is the nature of the communications and engagement between the parties.

Solong as J.R.W. continues to try to manipulate and control J.M.H., particularly through threats and demands, co-parenting will not be apossibility.

g) and

h) Family violence [66] The court must consider incidents of family violence when assessing what is in the best interests of the child. Family violenceis, as Mr. Soll argued, to be interpreted broadly: R.W. v. P.C., 2017 BCSC 998 , 2017 B.C.S.C. 998 at 36-41. [67] Family violence, Mr. Soll argued, in this case includes J.R.W.’s continuing demeaning and threatening remarks about J.M.H. toP.W. and others. Such persistent behaviour would be family violence: K.R.V. v. J.D., 2017 B.C.S.C. 182 and D.N.L. v.

C.N.S., 2013BCSC 809 , 2013 B.C.S.C. 809. [68] I have already referenced the troubling incidents respecting J.R.W.’s controlling behaviours. I am also concerned about how hecontrolled the child support. One would think that if child support was going to be reduced, there would be some communication to therecipient so they could plan properly. This only compounds the perception that J.R.W. is attempting to control and manipulate J.M.H. Itis not healthy for P.W.

i) The appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting thechild [69] There is a good deal of hostility and conflict between the parties. I have highlighted, as I have said, the controlling behavioursof J.R.W. The seriousness of J.M.H.’s overdoses is also significant. The failure of her family to keep J.R.W. apprised of the dangerP.W. was exposed to in this last overdose was unacceptable. J.R.W.’s response, which was more in the nature of controlling andretaliatory than turning his mind to the best interests of P.W., was also deeply troubling. As Mr.

Soll argued, J.R.W. has been unable tosubordinate his own interests to those of his son. [70] Bearing in mind the admonishment from the British Columbia Court of Appeal in G.(N.R.) v. G.(G.R.), 2017 BCCA 407, 2017 B.C.C.A 407, I must not give less than full and generous consideration of the best interests of P.W. by focusing on theongoing attitudes and behaviour of the parents. It is my view that both of the parents can learn and grow from this experience. I alsobelieve that, with more time, they will be able to co-parent P.W. This will be achieved only by the willingness of the parties.

In themeantime, it is in P.W.’s best interests to restore a parenting regime that respects his health, emotional wellbeing, family supports,structures, and routines.

While this is in the nature of a final order, it does not mean to say that there cannot be a material change incircumstances that will see J.R.W. residing in more appropriate accommodation, the parties growing to a more cooperative form ofcommunication, and more supportive structure being embraced by both sides of P.W.’s family. [71] I am satisfied that it is in the best interests of P.W. for him to reside primarily with J.M.H. and for J.R.W. to have reasonableparenting time.

I make the following orders: 1) The court is satisfied that J.M.H. and J.R.W. are the guardians of P.W. under s. 39(3) of the Family Law Act. 2) J.M.H. and J.R.W. will share equally all of the s. 41 parental responsibilities for P.W., under s. 40(2) of the Family Law Act as

follows:

a) in the event of the death of a guardian, the surviving guardian will be the only guardian of P.W.;

b) each guardian will have the obligation to advise the other guardian of any matters of a significant nature affecting P.W.;

c) each guardian will have the obligation to discuss with the other guardian any significant decisions that have to be made concerning P.W., including significant decisions about the health (except emergency decisions), education, religious instruction and general welfare;

d) the guardians will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions;

e) in the event that the guardians cannot reach agreement on a significant decision despite their best efforts, they must attempt to mediate the dispute with the assistance of the Family Justice Counsellor before making an application to the court for directions on any decision they consider contrary to the best interests of P.W., under s. 49 of the Family Law Act ; and,

f) each guardian will have the right to obtain information concerning the child directly from third parties, including, but not limited to, teachers, counsellors, medical professional and third-party caregivers. 3) J.M.H. will have the primary residence of P.W. and J.R.W. will have reasonable parenting time, including the following:

a) one full week each month commencing on the Sunday beginning the second week of the month and concluding the Sunday of the third week of the month;

b) every Wednesday between 2:30 p.m. and 6:30 p.m., commencing October 17, 2018;

c) one-half of the Christmas school holidays, including Christmas Day in odd-numbered years;

d) one-half of the school Spring Break;

e) two (2) weeks of uninterrupted parenting time during the school summer break in each of July and August, commencing in 2019;

f) P.W. will spend Father’s Day with his father and Mother’s Day with his mother, without the requirement of make-up time. Parenting time on Father’s Day and Mother’s Day shall commence at 5:30 p.m. on Saturday and continue until P.W. returns to school on Monday;

g) such other parenting time as the parties may agree on from time to time; and

h) the foregoing specified vacation and holiday arrangements supersede the regular parenting schedule. 4) Each parent will have liberal telephone and email access to P.W., at all reasonable times while he is resident with the other parent. 5) Each parent will facilitate any telephone call that P.W. wishes to initiate to the other parent. 6) Unless otherwise specified, all exchanges will occur at P.W.’s school when in session.

When school is not in session, exchanges will occur at [omitted for publication], Kamloops, British Columbia, unless otherwise agreed. 7) The parties may designate a third party to attend the exchanges.

Each party shall ensure their designated third party is licensed, has the appropriate car seat, and that no one shall smoke in the vehicle immediately before or during the exchange. 8) The parent who is exercising parenting time shall take the child to any extracurricular activity that is scheduled during their parenting time. 9) J.M.H. will not consume or possess any alcohol or controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act , except as prescribed by a licensed physician, during parenting time and for 24 hours before having parenting time. 10) Under s. 225 of the Family Law Act the parties will communicate with each other only by email, back and forth book, or text messaging, unless there is an emergency concerning P.W., except that the parties may exchange pleasant greetings when encountering each other at school or extra-curricular activities for P.W. 11) J.R.W. shall advise J.M.H. of P.W.’s bedtime and both parties shall endeavour to comply with that bedtime absent special circumstances.

J.M.H. shall provide J.R.W. with P.W.’s other usual routines and J.R.W. shall endeavour to comply with that routine. 12) The parents’ communication with each other shall be restricted to matters related to P.W. which may include the exchange of information regarding P.W.’s care, development, scheduled activities, parenting schedules and appointments. 13) In the case of an emergency related to P.W., the parents will communicate by telephone, with a follow-up text or email marked “Urgent, Please Call” and the telephone call shall be factual and will only communicate the essential information to allow the parents to assess and respond to the emergency, as appropriate. 14) The parties will:

a) put the best interests of P.W. before their own interests;

b) encourage P.W. to have a good relationship with the other parent and speak to P.W. 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 P.W. 15) The parties will not:

a) question P.W. about the other parent or time spent with the other parent beyond simple conversational questions;

b) discuss with P.W. any inappropriate adult, court or legal matters; or

c) blame, criticize or disparage the other parent to P.W. 16) 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 P.W. concerning family issues or litigation. 17) J.R.W. is a resident of British Columbia and has a gross annual income of $43,330 and J.M.H. is a resident of British Columbia and has a gross annual income of $34,666 for the purposes of the proportionate sharing of s. 7 expenses. 18) J.R.W. will pay J.M.H. for the support of P.W., the sum of $407 per month, commencing August 1, 2018 and continuing on the 1 st day of each and every month thereafter, for so long as the child is eligible for support under the Family Law Act or until further order of this court. 19) J.R.W. will pay to J.M.H. his proportionate share of the child’s special or extraordinary expenses.

As of the date of this order, the proportionate share of J.R.W. is 56% and the proportionate share of J.M.H. is 44%. 20) For the purposes of this order “special or extraordinary expenses” under s. 7 of the Guidelines are limited to: i. before and after school care child care expenses, if necessary; ii. health-related expenses that exceed insurance reimbursement by $100 annually, including orthodontic treatment, prescription drugs, and optical needs; iii. extraordinary expenses for primary or secondary school education and other educational programs that meet the child’s particular needs as agreed on by the parties in advance of the expense; iv. reasonable expenses for post-secondary education, when the time comes; and v. expenses for such extracurricular activities as the parties may agree on from time to time or as determined by further order of the court, which expenses will be shared by the parties in proportion to their incomes. [ 72 ] The parties will perform an accounting once every three (3) months to ensure that each of them has paid the appropriate share of the special expenses for the previous quarter.

The party who has paid less than required will pay the amount of the deficiency to the other party within three (3) days of the accounting. Neither party will incur any expense for P.W. for which reimbursement is sought without the prior agreement of the other party. 21) Commencing in 2019 and for so long as P.W. is eligible to receive maintenance:

a) the parties will exchange copies of their respective income tax returns, including all attachments, not later than June 1 each year;

b) forthwith upon receipt of same, the parties will exchange copies of any notice of assessment provided by Canada Revenue Agency in each year; and

c) any adjustments in child support will be effective as of June 1 of each year. ______________________________ S.D. Frame Provincial Court Judge