E.J.L. v. L.M.R. Date:, 2015 BCPC 258

Citation: E.J.L. v. L.M.R. Date: 20150914 2015 BCPC 0258 File No: 15182 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: E.J.L. APPLICANT AND: L.M.R. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.C. DICKEY Counsel for the Applicant: Mr. Carman Kane

Appearing on their own behalf: L.M.R. Place of Hearing: Kamloops , B.C. Date of Hearing: March 19, 2015 Date of Judgment: September 14, 2015 [ 1 ] There are two applications before the court. On January 8, 2015, E.J.L. applied seeking relief against L.M.R. pursuant to s. 61(2)(

g) of the Family Law Act (the “ Act ”). E.J.L. claims that L.M.R. has wrongfully denied him parenting time with their two children between June 21, 2013 and January 10, 2014.

E.J.L. claims relief in the amount of $5,000 from L.M.R. [ 2 ] On February 20, 2015 L.M.R. applied seeking relief under s. 221 of the Act asking this court to recognize Ontario as the appropriate jurisdiction; further she seeks an order that E.J.L. require leave of the court before filing any further applications in British Columbia, and for E.J.L. to be required to pay her expenses arising as a result of his application and a fine not exceeding $5,000. Evidence Not in Dispute [ 3 ] The parties were married on July 9, 2005.

As a result of this union they have two children; I.R.L. born [omitted for posting], and S.M.L., born [omitted for posting]. The parties separated July 9, 2009, and quickly began applying to court for different remedies. [ 4 ] With respect to the matter before the Court, E.J.L. originally filed a Notice of Motion on August 1, 2014, seeking a number of orders including that he be granted compensatory parenting time pursuant to s. 61 of the Act , and damages and a fine pursuant to s.230 of the Act . E.J.L. has since then filed the motion of January 8, 2015, for a fine under s. 61 of the Act .

The matter before me only related to the January 8, 2015, motion. [ 5 ] A brief

summary of the relevant court orders is as follows: 1. July 27, 2011 - interim order of Judge Cleaveley granting (

a) L.M.R. primary residence of the children (

b) joint guardianship to L.M.R. and E.J.L., (

c) L.M.R. entitled to relocate with the children only in the Lower Mainland, (

d) E.J.L. entitled to reasonable access provided he gives reasonable notice. 2. September 28, 2011 - interim order of Judge Cleaveley granting specified parenting time to the father on alternating weekends and telephone access every week. 3. August 20, 2012 - final order of Judge Harrison granting (

a) sole custody of the children to L.M.R., (

b) joint guardianship of the children to both L.M.R. and E.J.L. (

c) E.J.L. to have specified access on the third weekend of each month, (

d) the residence of the children is not to be moved outside of the Lower Mainland without the consent of E.J.L. or further order of the court. 4. September 26, 2012 - file transferred to Surrey for all purposes. 5. January 10, 2013 - ex parte order from Alberta Provincial Court registering the order of August 20, 2012. 6. January 10, 2013 - ex parte order of the Alberta Provincial Court allowing Ms. Richards to relocate to Calgary with the children. 7. May 24, 2013 - consent order of Judge Gordon granting E.J.L. specified parenting time. 8. June 21, 2013 - consent and final order of Judge Field granting (

a) that the residence of the children shall not be moved outside of Calgary, Alberta region without permission of E.J.L. or further order of this court, (

b) E.J.L. to have Skype and reasonable and generous telephone parenting time with the children, (

c) E.J.L. to have parenting time with the children one weekend per month in Calgary (

d) E.J.L. to provide L.M.R. with 10 days’ notice if he is going to exercise his parenting time in Calgary, (

e) E.J.L. to have one weekend per month with the children in Kamloops, (

f) the parents were to exchange their work schedules on the first of each month. If they fail to agree on a weekend then E.J.L. was to have the third weekend of the month in Kamloops (

g) E.J.L. was to have parenting time with the children for 7 days per month in each of July and August. E.J.L. was to inform L.M.R. by June 1 of the 7 days of July before June 1, and for the 7 days in August before July 1 (

h) this was a final order and could be reviewed, upon a change in circumstance or the best interest of the children, in the Provincial Court of British Columbia. L.M.R. refused to sign this order; it now appears that this order has been filed as of June 8, 2015, in the Kamloops Registry of the Provincial Court of British Columbia. 9. January 10, 2014 - ex parte order of the Family Division of the Provincial Court of Alberta, registered in Alberta the Order of Judge Harrison made August 20, 2012. 10.

January 10, 2014 - ex parte order of the Family Division of the Provincial Court of Alberta varied the Order of Judge Harrison. Findings of Fact [ 6 ] I have reviewed the evidence in this case and as a result make certain findings of fact. I refer specifically to the chain of e- mails found at Exhibit G of the Affidavit of L.M.R. sworn January 28, 2015. I find that L.M.R. has put up road blocks to E.J.L.’s parenting time at every step of the way. I find that L.M.R. has neither complied with the spirit of the Orders nor the spirit on which the parties entered into the Orders.

I am doubtful that she ever intended on complying with the Orders she consented to. Certainly all of her actions indicate someone who was only prepared to agree to E.J.L. receiving parenting time with the child so that he would agree to her relocating with the child. Once she relocated she appears to have only placed hurdles in the way of E.J.L. having contact with his

children. The spirit of the June 21, 2013 Order was that L.M.R. would have the opportunity to relocate to Alberta with the children andfor this she would ensure that the children had parenting time with their father. E.J.L. agreed to this proposal on his understanding thathe would be provided with parenting time. L.M.R. has failed to abide by the terms and the spirit of the Order. [7] L.M.R. provides confusing and illogical arguments for the

interpretation of the Orders. I find that what she is attempting to dois provide

interpretations that place roadblocks before E.J.L.’s legal right to have parenting with his children. Law [8] E.J.L.’s application is made pursuant to s. 61 of the Family Law Act (“Act”) which reads as follows: Denial of parenting time or contact 61

(1) An application under this

section may be made only (

a) by a person entitled under an agreement or order to parenting time or contact with a child, and (

b) within 12 months after the person was denied parenting time or contact with a child.

(2) If satisfied that an applicant has been wrongfully denied parenting time or contact with a child by a child's guardian, the court onapplication may make an order to do one or more of the following: (

g) require the guardian to pay (

i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or (ii) a fine not exceeding $5 000. [9] For the Applicant to be successful they must show that they were entitled to parenting time which was wrongfully denied, andtheir application must be made within 12 months after they were denied parenting. The term “wrongfully denied” is defined in s. 62 byproviding circumstances of when it does not occur: 62

(1) For the purposes of

section 61 [denial of parenting time or contact], a denial of parenting time or contact with a child is notwrongful in any of the following circumstances: (

a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised; (

b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with thechild was to be exercised; (

c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has awritten statement, by a medical practitioner or nurse practitioner, indicating that it was not appropriate that the parenting time or contactwith the child be exercised; (

d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parentingtime or contact with the child; (

e) the applicant (

i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised,and (ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact withthe child after all; (

f) other circumstances the court considers to be sufficient justification for the denial.

(2) If, on an application under

section 61, the court finds that parenting time or contact with a child was denied, but was not wrongfullydenied, the court may make an order specifying a period of time during which the applicant may exercise compensatory parenting timeor contact with the child. [10]

Section 61(

g) has received very little judicial attention since the Act has come into force. In K.L.K. V. E.J.G.K., [2013] BCJNo. 2444, Rogers J., declined to order a penalty where he found the mother unreasonably refused to permit the children to have parentingtime with the father. He found that the reason for the refusal was as a result of a lack of judgment and not because of vindictiveness ormalice. As a result he was not prepared to punish the mother nor require that she post a security to ensure future compliance (para. 88). [11] Section 213(2)(

d) of the Act has received much greater judicial attention; this

section sets out that fines or penalties can beimposed on persons who have failed to provide disclosure as required. [12] In the case of T.J.B. v. B.A.F., 2014 BCPC 290 , 2014 BCPC 0290, Judge Challenger required the Applicant to pay thelegal fees of the Respondent which totalled over $20,000. Judge Challenger found the Applicant had continually provided disclosurethat was incomplete, inaccurate, and mislead the court. She found the factors in determining the amount of the penalty includedpenalizing the Applicant for his abuse of the court process and wasting of court time, to deter and denounce others from acting in a

similar manner, and to compensate the Respondent for her expenses for a “proceeding wrongfully brought and improperly prosecuted”. [ 13 ] In J.D.G. v. J.J.V. , [2013] BCJ No. 1560 , an application was made for a financial penalty for failure to disclose financial information.

Punnett J., found that there were a number of factors relevant to the imposition of a penalty, including the following (at para.15): … the reasons, or lack thereof, for the failed disclosure or compliance, whether the failure was excusable, whether there had been a flagrant disregard of the court process, or whether the disclosure was deficient. [ 14 ] Punnett J., states that punishment “is not the end, but rather the means, as the information is required to resolve matters in a just manner” (para. 25).

Punnett J., comments that a finding of non-disclosure and the severity of the penalty will depend on the circumstances of each case, including the degree of non-disclosure, the reasons for non-disclosure, when it was made, and the need for the information to resolve the matter (para. 28). The court imposed a penalty that included the Respondent’s costs in the amount of $1,500 and a further $500 penalty. Analysis [ 15 ] On my findings above that L.M.R. has failed to comply with the terms of the Orders to provide parenting time to E.J.L.

She has also failed to comply with the spirit of the Orders that allowed her to move to Alberta, and then Ontario, on the understanding that E.J.L. would receive parenting time with the children. On these findings I am satisfied that E.J.L. has been wrongfully denied parenting time with his children. [ 16 ] An application under s. 61, however, must be made within 12 months after the person was denied parenting time with the child. E.J.L.’s application was made on January 8, 2015, and sought a remedy for a period between June 21, 2013 and January 10, 2014.

The application therefore only captures the period of January 8 through 10 of 2014 as these are the only dates that fall within the preceding 12 months from the date of the application. On my review of the evidence there was no specific denial of parenting time during this short period. I must conclude, therefore, that although L.M.R. has wrongfully denied E.J.L. parenting time with his children that no fine is appropriate for the short period for which this claim is applicable.

The application of E.J.L. is dismissed. [ 17 ] I find no grounds to allow the application of L.M.R. and it is therefore dismissed. ___________________________________ R.C. Dickey Provincial Court Judge