K.E.S. v. L.D.S. Date:, 2016 BCPC 119

Citation: K.E.S. v. L.D.S. Date: 20160405 2016 BCPC 0119 File No: 15194 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: K.E.S. APPLICANT AND: L.D.S. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Applicant: Ms. Rachel Lammers

Counsel for the Respondent: Ms. Seanna McKinley Place of Hearing: Kamloops , B.C. Dates of Hearing: November 23 - 26, 2015 and January 14-15, and February 26, 2016 Date of Judgment: April 5, 2016 [ 1 ] E.C.S. was born [omitted for publication]. K.E.S. and L.D.S. are her parents. K.E.S. and L.D.S. have known each other most of their lives. [ 2 ] To date, the parties have had a shared custody arrangement of their daughter E.C.S., born [omitted for publication]. Initially, the parties lived together in Edmonton, Alberta where an order was made for shared custody in 2012 upon dissolution of the relationship.

On returning to British Columbia, the arrangement was to be a four day on - four day off rotation. L.D.S. resided in Princeton and K.E.S. resided in Kamloops. This proved to be a difficult arrangement and so the parties adjusted it to a week on and week off rotation, following a family case conference in August, 2014.

However, Kindergarten is around the corner for the child and so primary residence needs to be resolved. [ 3 ] In October, 2015, a further interim order was made governing exchanges which included contact restrictions. [ 4 ] K.E.S. seeks final orders establishing that the parents are both guardians of E.C.S., and that the guardians equally share the parent responsibilities except that K.E.S. would have the decision-making right on matters in dispute with L.D.S. having liberty to apply to review such decisions; K.E.S. would be permitted to apply for a passport without the signature or authorization of L.D.S.; and K.E.S. could travel internationally with E.C.S., upon 30 days written notice to L.D.S. without the necessity of travel authorizations from him.

She seeks primary residence of the child and to establish set parenting time for L.D.S. She proposes that parenting time to be once per month from Friday at 4:00 p.m. or, in the event of a non-instructional day, from noon, to 6:00 p.m. on the Sunday. She is prepared to allow L.D.S. the long weekends, as well as a seven night block of time during Christmas holidays and spring break. She is also prepared to allow him parenting time for three non-consecutive weeks during the summer months. K.E.S. also seeks ancillary orders about notice, exchanges of the child, and contact by L.D.S. while the child is with K.E.S.

She also seeks child support, enrolment of the child in health care plans and for payment of special or extra-ordinary expenses. There are also conduct orders sought by K.E.S. Finally, K.E.S. seeks to have me seize myself of any further applications for a period of two years. [ 5 ] L.D.S. opposes K.E.S.’s application. He is content to have the current arrangement continue. He believes it will work because he intends to move to Kamloops. HISTORY - K.E.S. [ 6 ] K.E.S. is 30 years old. She grew up in Port Hardy where she lived until she was 16. K.E.S. had a complicated childhood.

While her parents have been largely supportive throughout her life, the family has had challenges largely associated with K.E.S.’s misdiagnosed mental health issues. [ 7 ] As a teenager, her school performance was sporadic. She was ultimately diagnosed with attention deficit hyperactivity disorder and placed on medication for it. She continued to act out smoking marijuana and keeping a poor peer group. This included a person who had apparently robbed a bank.

Even as of the time of trial, her father, C.S., had not yet learned that she had harboured the bank robber in her family basement. [ 8 ] While still a teenager, K.E.S.’s parents sold the family pharmacy and moved to Vancouver so that her mother could take a cooking course to advance her career. Understandably, K.E.S. did not wish to move with her parents. Instead, she was placed with a neighbour familiar to the family who was also the school bus driver.

This may not have been the best arrangement in hindsight because K.E.S. did not pursue her education. [ 9 ] Following this failed arrangement, K.E.S. was then sent to stay with her aunt in Mexico. The idea was to get K.E.S. back on track for her education. This arrangement lasted about three or four months before K.E.S. moved to Vancouver with her parents. The whole family ultimately moved to Kamloops. HISTORY - L.D.S. [ 10 ] L.D.S. is 33. He was born in Princeton. His parents are S.S.(1) and S.S.(2). L.D.S. has siblings who live in Princeton as well.

His mother testified that he was a genial and generous person growing up. [ 11 ] L.D.S. graduated from high school and moved to Prince George to do an electrical apprenticeship, which was an eight month course. L.D.S. decided he did not want to pursue this line of work so he returned to Princeton to work for his father. He began his welding apprenticeship there. He otherwise either had an uncomplicated personal history, or was in constant conflict with his father due to his tardiness at work. HISTORY - RELATIONSHIP [ 12 ] K.E.S. was working at [omitted for publication] when she started dating L.D.S.

L.D.S. said she was living in an apartment in Kamloops at the time while receiving money from her parents to assist her with rent. It was a continuous theme for both parties to suggest the other was incapable of caring for their child without the support of their respective parents. That is more a reflection of modern society and a comment about the inability of the parties to engage in self-reflection than it is an indictment of either parent’s ability to parent.

[ 13 ] C.S. testified that he approved when L.D.S. and K.E.S. began dating. They knew L.D.S.’s maternal side of the family quite well and had positive relationships with the family. In fact, C.S. testified that the families went back decades and that he went to the school with L.D.S.’s aunts and uncles. [ 14 ] K.E.S. and L.D.S. already knew each other from growing up together at Allison Lake while their families were vacationing. Within a month of connecting while she was working at Cache Creek and living in Kamloops, K.E.S. moved in with L.D.S. to the basement suite he was renting with his brother in Princeton.

L.D.S. described the relationship as having an awesome start. They spent a lot of time at the lake and engaged in a number of activities they had in common. L.D.S. said the relationship remained good until 2005 or 2006 and said they were madly in love. [ 15 ] The couple remained in Princeton until about 2004 when they returned to Kamloops so that K.E.S. could upgrade her high school education and then take a Science programme at Thompson Rivers University. When they returned to Kamloops, they moved in with her parents, ultimately ending up in the basement. L.D.S. said they did not pay rent.

He said they were not asked to do so and he did not feel they ought to since they were only there so that K.E.S. could complete her schooling. Everyone was supportive of her in this endeavour. L.D.S. said K.E.S. ultimately left the programme because she was unable to cope with the math portion of it. [ 16 ] L.D.S. and K.E.S. lived with K.E.S.’s family for about a year before moving to Knutsford. K.E.S. was to pay the rent in part from money she received from her parents and in part from money she received from L.D.S. L.D.S. said he gave her the money and she said she paid the rent.

However, he learned from the landlord that K.E.S. was not paying the rent. She admitted to this when confronted. L.D.S. and K.E.S. were evicted. L.D.S. said this put a damper on their relationship which seems to have carried forward. They rented a storage unit for their belongings and travelled to Sparwood to look for work. [ 17 ] When they did not find work, they moved to Edmonton and lived in a complex owned by K.E.S.’s parents. They were allowed to stay in a suite until they were able to get back on their feet.

By this point L.D.S. was looking for a nightshift welding position because day shifts did not suit him. [ 18 ] L.D.S. described the relationship as “alright” at this point. He said there was a lot of tension because of what had transpired in Knutsford and their unemployment. However, following the move to Edmonton, the relationship did start to “sour”. [ 19 ] The parties have differing views about what caused the demise of their relationship. From K.E.S.’s perspective, it was the challenges of what she perceives to be L.D.S.’s sleep disorder and his lack of contribution to the raising of their child.

From L.D.S.’s perspective, the issues are about his distrust of K.E.S. following the rent incident in Knutsford, her failure to advise him of her pregnancy until he learned of it by accident, and the pressures of first his unemployment and then his conflicting shifts. Any one of these things would strain a relationship. It was likely a combination of all these factors. [ 20 ] K.E.S. has had a fairly extensive work history. She held a job as a teenager in Port Hardy. Apart from the [omitted for publication] in Cache Creek, she worked at [omitted for publication] for three or four months in Kamloops.

In Princeton, she worked at the Princeton [omitted for publication]. Once she was old enough, she started a second job bartending at the [omitted for publication], also in Princeton. Once the golf season ended, K.E.S. became full time at the pub. Although unemployed when she returned to Kamloops with L.D.S. so that she could go to university, K.E.S. worked in her summers while attending university. After they moved to Edmonton, K.E.S. also obtained work in 2010 as a server and bartender at a nearby pub. After she became pregnant, K.E.S. took over the responsibilities of managing her parents’ apartment building.

The apartment management commitment varied depending upon how many people were moving in or out, needing to view the suites, repairs needed and otherwise. Shortly after the dissolution of K.E.S.’s relationship with L.D.S., she moved out of the apartment and was no longer managing it. [ 21 ] On returning to Kamloops finally in January, 2013, K.E.S. opted to attend to her mental health treatment and is presently on a disability for it. She does not intend to continue on disability. [ 22 ] L.D.S. had some employment difficulties early on because of his nocturnal habits.

According to K.E.S., L.D.S. was fired a number of times by his father for failing to show up to work on time. L.D.S. and his mother both deny this although S.S.(2) did not seem to have much more than a vague knowledge of his work with his father. When the couple moved to Kamloops to live with K.E.S.’s parents, L.D.S. found employment before K.E.S. completed her move. K.E.S. claimed that L.D.S. was fired from [omitted for publication], [omitted for publication], and [omitted for publication]. She claimed all of these were related to his inability to show up to work on time.

L.D.S. left [omitted for publication], according to her, because he had been written up or reprimanded for missing or attending work late. She concedes that she does not know for certain that he was fired from [omitted for publication] in Edmonton because they were already separated. However, she said that L.D.S. was not working or attending work by the time of the assault. K.E.S. was clearly overstating whatever circumstances ended L.D.S.’s employment. [ 23 ] L.D.S. relates a different version of this work history. He obtained his red seal welding ticket in 2004 in Kelowna.

He had lived in Edmonton when he was 18 for six or seven months where he worked as a shipper/receiver in a liquor store. While living with the S. family in Kamloops, he worked first for [omitted for publication] and then for [omitted for publication]. He has not been working since he obtained joint custody of E.C.S. He prefers to concentrate his time on being “there all the time with her”. However, he has done some contract welding work for his father and through his father’s company. The most recent work was a year and a half before the commencement of the trial, which work lasted about two to three months.

His last year of full time work was in 2010 at [omitted for publication] in Edmonton. After starting the court proceedings, he felt he did not have time to do both, so he left his employment. That is an unacceptable excuse for unemployment. [ 24 ] When they first moved to Edmonton, L.D.S. said that he was handing out 10 to 15 resumes a day to no success. He was looking for an afternoon or evening shift to match his sleep schedules. He said that he had to push K.E.S. into finding a job, which she obtained immediately.

However, he believes he would have no trouble finding work were he to move to Kamloops. [ 25 ] The defining issue for K.E.S. in the decline of this relationship was what she perceives to be L.D.S.’s sleep disorder. She described periods of insomnia followed by sleeping for days at a time. He would be hard to get up for work. If she tried to wake him he would be incoherent, aggressive, belligerent and abusive. Ultimately, while in Kamloops, he received a preliminary diagnosis of sleep

apnea for which he was provided a CPAP machine. However, the issue was a constant point of contention. K.E.S. claimed she was worried he would lose his job. This issue was a daily one. L.D.S. denied he was diagnosed with sleep apnea or any other sleep disorder. [ 26 ] During the periods when L.D.S. was unable to wake, K.E.S. said he would call her names, push her away from the bed if she was standing close, slam the door in her face and return to bed. He would wake up when he wanted to and there was nothing she could do to persuade him to get up sooner.

K.E.S. believes he went to see a psychiatrist with his mother but cannot recall the year. He did attend the Respiratory Technician Program at Thompson Rivers University and obtained a CPAP machine. She said he only used it for a month and returned it. As far as she knows, he has received no further treatment for his sleep disorder. [ 27 ] Because of this difficulty that L.D.S. had keeping work, according to K.E.S., they moved to Edmonton. L.D.S. felt nights would be better for him and Edmonton would provide better opportunities.

At K.E.S.’s parents’ suggestion, they moved into the apartment in Edmonton. [ 28 ] After E.C.S. was born, the strain of L.D.S.’s sleep habits became greater for K.E.S. She worried continuously about his employment status and the amount of work he was missing. This was compounded by her duties as apartment manager and the strains of having a new baby. [ 29 ] While living with them in Kamloops, K.E.S.’s parents were able to observe the difficulties and frustrations K.E.S. endured with the sleeping issues. C.S. testified that they had not noticed this issue before the couple lived with them in Kamloops.

However, he noticed that L.D.S. kept very different hours, sleeping all morning and into the afternoon, then staying up a greater part of the night. Because of K.E.S.’s school schedule, C.S. would often not see L.D.S. for extended periods of time. On occasion, K.E.S. would come to C.S. for help to wake L.D.S. C.S. described it as a “physical thing where I would have to shake him”. It would take extended periods of time to wake him which C.S. found odd. Once wakened, L.D.S. seemed to take a long time to become aware of his surroundings. It was not like typically waking someone up.

C.S. described it as a “strange thing”. [ 30 ] C.S. said his assistance waking L.D.S. was required more frequently in Edmonton. K.E.S.’s parents would visit them in Edmonton a week of every month to attend to the apartment business. On those occasions, C.S. would observe that K.E.S. was unable to rouse L.D.S. to get him to work. C.S. said it was not a gentle shake but required physically shaking L.D.S. harder than K.E.S. could do. He described it as abnormal even from his experience of trying to wake teens. [ 31 ] L.D.S. fully admits he does not like getting up in the mornings.

He acknowledges that he was difficult to waken. He said he spent most of his time staying up later. After three or four days he would be worn out and harder to wake up. However, he said it had no impact on his employment. On the other hand, he recognized that it definitely put a strain on a few of his jobs. He feels that this does not prevent him from caring for E.C.S. and he has not been diagnosed with a sleeping disorder. When he has E.C.S. in his care, he is up early with her. On his week off from parenting he goes back to the afternoons, finding it an easy switch to make. He uses an alarm clock.

He also changes the time of night that he retires when E.C.S. is in his care. L.D.S. may find this easy enough to do now but as E.C.S. becomes older and there are external expectations such as school, L.D.S. has shown in his history and lack of compliance with court orders that he cannot sustain these accommodations. If it were compounded by full time daytime employment, the sleeping issues would almost certainly resurface. [ 32 ] For L.D.S., trust was the defining issue in his relationship with K.E.S. Apart from the incident with the unpaid rent in Knutsford, he was also unaware that K.E.S. was pregnant.

He learned of her pregnancy when the apartment was going to be fumigated. The then apartment manager had arranged for the bug spraying and his girlfriend “let it slip” that it would not be good for K.E.S. because of her pregnancy. At this point, K.E.S. was six and a half month’s pregnant. L.D.S. said he was shocked and angry but supportive. He was happy they were going to have a baby. He admitted they had decided to terminate a prior pregnancy, but denied he ever said he did not want children. The decision made in the first instance was based on their age and stage of their relationship.

L.D.S. said that K.E.S. did ultimately go to see the doctor with the second pregnancy, but they did not attend any prenatal or Lamaze classes. However, K.E.S. did not see a doctor until L.D.S. found out that she was pregnant. K.E.S. has a long history of avoidance which persists to a lesser degree today. [ 33 ] After E.C.S. was born, K.E.S. concedes that there was a trade-off initially with L.D.S. working. She would be with E.C.S. in the day. Even though she was breast feeding, they put E.C.S. on the bottle so that L.D.S. could feed her when she was home.

K.E.S. describes herself as the primary caregiver doing the feeding, bathing and appointments. E.C.S. was sick with bronchitis a number of times requiring medication schedules and visits to the pediatrician. This caused tension because K.E.S. felt that L.D.S. was not supporting her emotionally or playing an active

part in E.C.S.’s care. [ 34 ] L.D.S.’s perception of his parenting is quite different. He said that he was present for the first nine months when they were all living together. During that time, he felt that he contributed equally. He said no one ever commented that he was not helping. He noted that when he returned home from work at 3:00 a.m., E.C.S. would need to be fed. He would feed her, change her and rock her to sleep. He would often be with E.C.S. until K.E.S. woke in the morning. Then he would go to bed. This was their daily routine.

He said E.C.S. was pretty tiny at first and had to be fed with a syringe and formula. He felt very comfortable in his role as a new father, though he had never cared for a newborn before. He said it was a natural thing and that he was a changed person after he saw her the first time. It is not untypical - especially after the parents are no longer a couple - for each to misapprehend or underappreciate the other parent’s role. [ 35 ] L.D.S. acknowledged that managing the apartment could be challenging for K.E.S. After they separated, E.C.S. went to daycare.

He became concerned that E.C.S. spent more time at daycare than she needed to. [ 36 ] After the separation, L.D.S. has spent his parenting time with E.C.S. at the park and playing. He would get her out to interact with other children. No one ever expressed concern about his parenting at that time. [ 37 ] After both parties moved back to British Columbia and K.E.S. left E.C.S. with L.D.S. in Princeton for a few weeks, K.E.S. did not contact L.D.S. to inquire about E.C.S.’s care. He was living in his parent’s home in Princeton. They spent a lot of time at the park and at the family cabin.

Evidently, K.E.S. was confident that L.D.S. was capable of parenting E.C.S.

[ 38 ] Now on L.D.S.’s parenting time, E.C.S. has a daily routine. They are outside almost all day, eating the midday meal punctually at noon. He then feeds her around 4:30 or 5:00, reads a book to her at 6:00 or 6:30 and by 7:00 she is in bed. He does not presently have her enrolled in any extracurricular activities. He says that the town is small and there is not much there. They usually play at the park in Merritt because there are always children there. [ 39 ] On the other hand, K.E.S. has registered E.C.S. in a [omitted for publication] preschool.

While L.D.S. recognizes that it will be a good thing for E.C.S. to attend the [omitted for publication] on a full time basis, he has not been prepared to accommodate that arrangement. Nor has he contributed to the costs of it. K.E.S. also wants E.C.S. to be able to enrol in gymnastics and, presumably, other interests she may acquire over time. None of these can be properly accommodated when the child is living half of her life out of town. This, of course, has to change once E.C.S. is in Kindergarten. However, L.D.S. has not been accommodating of her being registered in any activities.

THE ASSAULT [ 40 ] The relationship essentially came to an end, although there were attempts at reconciliation, following L.D.S.’s assault of K.E.S. [ 41 ] The events surrounding the assault are disputed to some extent. K.E.S. relates that they had been going through a strained time in their relationship. L.D.S. was in what she described as a bad bout of his sleeping pattern. He was unsympathetic to her workload and unhelpful in caring for the child. During the summer, K.E.S. came to visit her family at the summer cabin.

When she returned in late August, L.D.S. was out of work and his sleeping patterns were worse than when she had left. [ 42 ] On September 3, 2011, she said they were arguing in the early morning. E.C.S. was still asleep. K.E.S. was trying to wake L.D.S. to pack his things to go and stay with a friend. He told K.E.S. he was not going to leave. He kicked her away from the bed to the wall and told her to go deal with E.C.S., who was then awake. K.E.S. took E.C.S. to a friend’s apartment in the same building and returned. She called the non-emergency line of the police to seek their assistance in removing L.D.S.

He came out of the room while she was on the phone with the police. He grabbed the phone, asked who she was talking to and then hung it up. He struck her in the arm with the phone, dropped it and began to punch and kick her while she sat on the couch. [ 43 ] When he stopped assaulting her, K.E.S. ran to her friend’s apartment. The police arrived, arrested L.D.S. and took him to the police detachment. K.E.S. attended the police station three days later where she was photographed for her bruises. She was advised then that a protection order had been made.

She had bruising to her arms and legs. [ 44 ] K.E.S. said that this was not the first time he had assaulted her. She said on a number of prior occasions in the months leading up to this incident and in the past in their relationship, he would push her, verbally assault her and abuse her when she would attempt to wake him. He would call her names. She was often crying and at her wits’ end. L.D.S. felt she was being abusive to him by trying to wake him and in the manner she was trying to wake him.

She admitted that she was often frustrated but did not believe she was physically strong enough to assault him. [ 45 ] While L.D.S. ultimately admitted to the assault, and pled guilty, he disputes that he struck her with the telephone or that the assault was to the degree as described. L.D.S. did plead guilty to the assault but the agreed facts at trial do not include the extent of the assault K.E.S. testified she endured. L.D.S. was sentenced, which sentence included a probation order requiring him to have no contact with K.E.S. and to attend counselling.

BREACHES [ 46 ] L.D.S. was no sooner released from jail with a no contact undertaking than he immediately returned to the family home and tried to gain entry. L.D.S. argued that he had no keys, money or place to stay. He had no alternative but to go back to the residence to recover his personal belongings. While his no contact order had been qualified to allow L.D.S. to contact K.E.S. to arrange access to their child, or by phone or in the presence of a mutually agreed third party or in a public place, the order restricting access to the property was not modified in any way.

It was not open to L.D.S. to return to that property for any reason. As he has shown repeatedly with his family court orders, L.D.S. does what suits him without regard to the court orders. [ 47 ] After the guilty plea and probation order were in place, L.D.S. continued to breach the order albeit with K.E.S.’s blessing, as he continued to have contact with her. When the parties resolved to return to British Columbia following the family court order made in Alberta, L.D.S. did not advise his probation officer he was leaving. He has an entirely incredible explanation for this which I do not believe.

When presented with the revelation that there is an outstanding warrant for his arrest arising from his breaches in Alberta, L.D.S. feigned bafflement and resolved to look into the matter. That was November 2015. By the conclusion of the trial in February 2016, L.D.S. had still not returned to Alberta to address these matters. NEGLECT [ 48 ] While still in Alberta, and while still under considerable amounts of pressure following the charges against L.D.S., K.E.S. made a tremendous error in judgment. Having finally got E.C.S. to sleep, K.E.S. left her in the vehicle while she went into a store.

The child was discovered alone in the vehicle and the police and Child Services became involved. K.E.S. immediately acknowledged her error and cooperated with the child protection agency in ensuring that E.C.S. was otherwise protected. No child protection file was opened. However, K.E.S. failed to attend court following charges arising from the incident which resulted in a warrant for her arrest. K.E.S. attended to this immediately as well. Ultimately, the charges were not pursued.

K.E.S. did not tell L.D.S. about the situation although I note that his no-contact order - were it being observed by either party - would not have permitted that communication in any event. [ 49 ] It is noted with heavy irony that L.D.S. considers the warrant as well as the neglect charge and the circumstances to be damning indictments of K.E.S.’s ability to parent E.C.S. It is as though he cannot on any level see that his own domestic violence toward E.C.S.’s mother, particularly while the child is present, is so very damaging to the child.

Nor to this day does he seem to appreciate the gravity of his breach on the very day of his release, believing his needs justified his actions. It is this lack of adherence to court orders and persistent lack of insight into his behaviour which poses his greatest hurdle. K.E.S. learns from her mistakes and gains insight from

them. She takes action to better herself. L.D.S. does not. COMMUNICATIONS BETWEEN THE PARENTS [ 50 ] Following their separation and the child neglect charges, K.E.S. also left British Columbia for a period of time in 2013. E.C.S. was left safely in the care of her father. However, no one had any real communication with K.E.S. while she was away. It was during this time that K.E.S.’s mental health clearly spiralled downward. She had already taken up with a person of dubious character. There is some dispute about whether this boyfriend was a drug dealer or not.

L.D.S. claimed that he found a bag of drugs in K.E.S.’s bedroom, which he may or may not have done. K.E.S.’s treating psychiatrist, Dr. Griffiths, confirmed that K.E.S. mentioned crack cocaine had been found in her apartment. It is unclear from Dr. Griffith’s testimony whether K.E.S. ever saw the cocaine that was found by L.D.S. Suffice it to say that K.E.S. at least acknowledged the possibility it could have been found in her apartment. K.E.S. denied at trial that she had ever seen the drugs L.D.S. claimed he found. She believes he fabricated the story.

In any event, K.E.S. is not suspected of having been the drug user but did insist that the drugs be returned to her boyfriend. Obviously, persons of such character are not appropriate to have around a young child. Nor was K.E.S.’s consequent behaviour of leaving her supports without contact and leaving her child. [ 51 ] However, unlike L.D.S. who dismisses his dysfunctional sleep habits, K.E.S. did seek help for her mental health disorder. It was through the care of her psychiatrist that K.E.S. learned she had been misdiagnosed in her youth. She is in fact suffers from bipolar disorder.

She now receives appropriate medical care for this disorder and has stabilized herself. As a result, she has provided a safe and nurturing environment for E.C.S. [ 52 ] Dealing briefly with the allegations K.E.S. has made about L.D.S.’s continued violence toward her, I am not satisfied on the evidence that I can conclude what did transpire on these occasions. L.D.S. is not credible and minimizes without any insight his inappropriate behaviours toward K.E.S. K.E.S. exaggerates her evidence rendering it somewhat unreliable.

What can be said is that their communications are going to require some skill development at the very least. This is particularly so where L.D.S. is involved. [ 53 ] Nowhere is their communication more wanting than in their discussions about the pick-up and drop-off arrangements for their daughter. Nowhere does their relationship impact E.C.S. more profoundly than when she is present and they are supposed to be conducting exchanges. Neither parent is without fault when these arrangements devolve. However, L.D.S. responds with childish, petulant and selfish behaviour.

He refuses to live up to his responsibilities, preferring to engage in combat with K.E.S. in the ongoing battle he wages with her. L.D.S. often refuses to tell K.E.S. when he will be coming to pick up E.C.S., even though their exchange times and locations have been set. This is profoundly indifferent to the negative impact this has on E.C.S. When L.D.S. does respond, he is profane and bad tempered. [ 54 ] I will address only briefly the allegations made by K.E.S. about L.D.S.’s violence toward her during a particular pick up.

When L.D.S. had failed to respond once again to K.E.S.’s text messaging, K.E.S. delivered E.C.S. for L.D.S.’s parenting time. L.D.S. apparently did not know this, attended K.E.S.’s residence and became upset when he discovered E.C.S. was not there. L.D.S. said he never got out of his vehicle but left as soon as he realized E.C.S. was not there. K.E.S. said he not only got out of the vehicle and was aggressive toward her, wrecked a planter and spun gravel when he left. Regardless of the outcome, it is entirely L.D.S.’s fault that this happened in the first place.

If he troubled himself to respond to communications, he would have had E.C.S. in time and would not have wasted the trip. [ 55 ] Certainly there had been times when the couple have been able to communicate respectfully and even helpfully. There have been times when they have been able to cooperate to make E.C.S.’s time with them of better quality. However, the standards the two of them have set for their communications falls well below the standard that is necessary for shared parenting. [ 56 ] Ms. Lammers argued, and I agree, that the shared parenting arrangement has not been ideal.

The travel between the residences may well not have been a tremendous hurdle, but the lack of consideration L.D.S. has shown towards K.E.S. on the exchanges has made it untenable. [ 57 ] L.D.S. has intimated that he may move to Kamloops. Although these proceedings have been outstanding for some time and L.D.S. has testified that he appreciates Princeton is not the best place to raise E.C.S. given the choice between the two towns, he has made no efforts to move. He has no employment and no evident ability to fund a move.

He has made no efforts to find employment in Kamloops but claims that he could get work immediately if he wanted to. One must conclude that he does not want to work. This is not in E.C.S.’s best interests. E.C.S. must be properly and financially supported by both parents. [ 58 ] K.E.S. has struggled and she has relied upon her parents but she is making an effort while L.D.S. is not. Perhaps most profound is the S. family determination to focus their finances on fighting the battle for “custody” instead of funding E.C.S.’s wellbeing.

While C.S. had given L.D.S. an ultimatum that he had to pay child support or not see his daughter, K.E.S. did not support that approach and did not withhold E.C.S. from parenting time in exchange for child support. The S. did lose one opportunity to see E.C.S. when they asked C.S. if they could see her. The end result was that unless they were going to pay some money toward K.E.S.’s needs, he was not going to let them see E.C.S. K.E.S., though, has not withheld E.C.S.

S.S.(2) testified that she and her husband buy the main groceries although her son purchases his specific needs for E.C.S., such as rice milk and diapers. S.S.(2) was very unclear on where L.D.S. obtained his money from for these groceries, the vehicle upkeep and otherwise. S.S.(2) said that L.D.S. provides for his daughter in a lot of other ways, so they help him financially. [ 59 ] That being said, it is clear that both parents are capable of parenting E.C.S. in a positive and nurturing fashion when they are not in the same place at the same time.

I accept L.D.S.’s and his mother’s evidence that he is the one who cares for E.C.S. when she is staying with him. I accept his evidence that he has a set routine for her. I also accept their evidence that E.C.S. is engaged in enriching experiences at the lake, in L.D.S.’s home with all of the musical instruments, and in their trips to Merritt to play in the parks. Similarly, K.E.S. is very engaged in the parenting of E.C.S. She does it largely independently of her parent’s assistance. She has E.C.S. going to a preschool which Mr. and Mrs. S. pay for.

She is engaged in the longer term planning for E.C.S. and has attended to all of her medical and dental appointments for her.

[ 60 ] As Ms. Lammers argued, K.E.S. has shown significantly more insight concerning her capabilities and limitations than has L.D.S. K.E.S. has sought diagnosis and treatment for her bipolar disorder and is now managed. I am satisfied that so long as she continues with this treatment, the events of her past will not be repeated. [ 61 ] It is also K.E.S.’s long-term plan to continue her education and find gainful employment allowing her to come off of the disability benefits she now receives.

On the other hand, L.D.S. is not employed and has remained decidedly unemployed, ostensibly so he could care for E.C.S. in his weeks. This suggests that he is only capable of parenting E.C.S. if he is not working. He has an obligation to support E.C.S. and must return to work. It is part of his parenting obligation that he learn how to care for E.C.S. while he is gainfully employed. L.D.S. testified that he only intended to remain unemployed until E.C.S. started school. If he were somehow otherwise properly supporting E.C.S. regardless of which home she was in, then that would be a fair decision to make.

However, his decision to be unemployed has had a significant negative impact on E.C.S.’s best interests. [ 62 ] There is also the issue of which parent is more likely to ensure that E.C.S. will continue to have contact with her extended family. While K.E.S. and her parents have reached out to the S., the same cannot be said for the S. C.S. has a negative opinion of L.D.S. but, rather than acting on that opinion, he absences himself when L.D.S. is present. Both L.D.S. and C.S. need to grow past this impasse for E.C.S.’s benefit.

It is understandable that C.S. has a poor opinion of L.D.S. because L.D.S. assaulted C.S.’s daughter. Either way, E.C.S. will still have the benefit of engagement with the S. family if she is residing with her mother. It is unlikely that L.D.S. will make any effort to ensure contact with the S. continues if E.C.S. is in his care. That being said, the grandparents will still have the ability to have contact time with E.C.S. during their own child’s respective parenting time.

In any event, L.D.S. is not seeking to change the existing parenting time schedule. [ 63 ] Perhaps most troubling is L.D.S.’s attitude toward the domestic violence incident that led to his arrest in 2011. K.E.S. said this was a particularly violent culmination of prior abuses. While I expect that she has exaggerated her description of those past incidents, I do accept that L.D.S.’s aggressive behaviour when she attempts to waken him has been abusive.

More troubling was his instant and persistent breach of not only his recognizance but his probation order, both of which were designed to protect K.E.S. from further domestic violence with the ancillary benefit of protecting E.C.S. from exposure to it. Not only did L.D.S. repeatedly breach the no contact term which he justifies by saying that K.E.S. welcomed him back into her life, but he also failed to take the counselling he was required to take. L.D.S. has entirely incredible evidence with respect to advising his probation officer of his move to Kamloops.

He was unable to explain why he had not had his probation order transferred to British Columbia so that the very important counselling could be undertaken. The existence of the outstanding warrant for his arrest on a failure to report charge belies his evidence. He has also minimized his convictions for his prior breaches believing that his bail supervisor and the courts were “okay with it” that he was breaching his no contact provisions. They were not “okay with it”. He was convicted. He was sentenced. CHILD SUPPORT [ 64 ] There is no question that L.D.S. is voluntarily and deliberately under-employed.

He maintains that he would have no difficulty getting a job immediately in his welding field. He has his red seal certificate in welding and has worked in that field in the past. K.E.S. asks the court to impute L.D.S.’s income at $60,000 per annum. [ 65 ] K.E.S., on the other hand, has largely worked in unskilled areas. She has been on disability for her mental illness which is now managed. Her intention is to return to school to finish her degree. This will create a period of unemployment while she finishes her education and embarks on a new career which is as yet undefined.

This is an acceptable explanation for her unemployment. K.E.S. also has an obligation to support E.C.S. and has done so in part from her disability income and in part by the assistance of her parents. [ 66 ] L.D.S.’s evidence was that he could obtain work right away for anywhere between $50,000 and $60,000. This is what he ought to have been doing from the outset. I impute income to L.D.S. of $50,000 per annum. His child support obligations for one child with that annual income is $458. K.E.S.’s 2015 income was $23,618.52.

The proportionate share of special or extraordinary expenses including pre-school, daycare, medical or dental expenses over the first $100 per annum and extracurricular activities is 32% to K.E.S. and 68% to L.D.S. [ 67 ] The parties shall exchange their notices of assessment not later than June 1. The proportionate share of special or extraordinary expenses shall be adjusted annually on July 1, commencing July 1, 2016 based on K.E.S.’s income and not less than $50,000 per annum income for L.D.S. Child support shall be adjusted annually on the same basis commencing July 1 each year, commencing July 1, 2016.

CONCLUSION [ 68 ] I am not confident that L.D.S. will be any more respectful of any order I make than he has been of the orders that have bound him in the past. Consequently, it is in E.C.S.’s best interests to reduce the opportunity for conflict in whatever terms I impose. In this case, that means reducing the number of exchanges E.C.S. must endure. [ 69 ] K.E.S. and L.D.S. are guardians of E.C.S. E.C.S. shall reside primarily with K.E.S. [ 70 ] L.D.S. shall have parenting time with E.C.S. one week per month, commencing in May 2016.

His week shall commence on the first Sunday of each month and conclude on the first Saturday of each month. L.D.S. shall pick up E.C.S. at K.E.S.’s residence at noon on the relevant Sunday. K.E.S. shall pick up E.C.S. from L.D.S.’s residence at noon on the following Saturday. [ 71 ] It is my intention to ensure that neither party will be late for this pick-up time. In the event that either party is delayed on the day they are obligated to pick up E.C.S., the delayed party shall notify the other parent not less than one hour before the pick-up time.

This is a conduct order that may result in fines imposed against the putative parent if such notice is not provided. Obviously, there will be emergencies that may not fall within the parameters set by this conduct order. However, those must be true emergencies such as vehicle breakdowns, sudden storms or motor vehicle accidents. [ 72 ] In the event that L.D.S. has moved to Kamloops by September 2016, this parenting time shall continue. If L.D.S. has not moved his residence to Kamloops, then parenting time will have to be adjusted to accommodate E.C.S.’s schooling and extra-curricular

activities. In that event, L.D.S. shall have parenting time with E.C.S. two weekends every month. L.D.S. shall pick up E.C.S. on Friday at 6:00 p.m. at K.E.S.’s residence. K.E.S. shall pick up E.C.S. at L.D.S.’s residence on Sundays at 6:00 p.m. The same conduct order will apply if either party is late as will the penalties if either party fails to give notice to the other. [ 73 ] In any given month where there is a professional development day or non-instructional day, L.D.S. shall have E.C.S. for that weekend as one of his two weekends.

Where the professional development or non-instructional day falls on a Friday, L.D.S. shall pick up E.C.S. at 6:00 p.m. on Thursday and K.E.S. shall pick up E.C.S. on 6:00 p.m. on Sunday. Where the professional or non-instructional day falls on a Monday, K.E.S. shall pick up E.C.S. at 6:00 p.m. on that Monday. [ 74 ] For so long as L.D.S. continues to live in Princeton, his weekends shall include the Thanksgiving weekend; the Family Day weekend; the May long weekend; the August long weekend and Labour Day weekend.

In each case, K.E.S. shall pick up E.C.S. at L.D.S.’s residence at 6:00 p.m. on that statutory day Monday. [ 75 ] With respect to the summer holidays, K.E.S. has proposed that L.D.S. have parenting time for a seven night period over the Christmas holiday break with L.D.S. having E.C.S. during the week upon which Christmas falls in 2016. The winter vacation period varies in length from year to year and, in some cases, the seventh day may fall on Christmas Day. It is inconvenient for families for exchanges to occur on Christmas Day. The preferable division is Boxing Day with the exchange to take place at 6:00 p.m.

Therefore, for the school winter break, on even numbered years, L.D.S. shall have parenting time with E.C.S. from 6:00 p.m. on Friday of the last day of school before the winter break session through to 6:00 p.m. on Boxing Day. On odd numbered years, L.D.S. shall have parenting time with E.C.S. from 6:00 p.m. on Boxing Day until 6:00 p.m. on the Sunday preceding the first day of school after winter break. In the event that New Year’s Day falls on the Monday, K.E.S. shall pick up E.C.S. on the Monday at 6:00 p.m.

This shall remain in effect whether L.D.S. moves to Kamloops or not. [ 76 ] For so long as the Kamloops School District enjoys a two week spring break, L.D.S. shall have parenting time with E.C.S. from 6:00 p.m. on the last day of school before the spring break commences until 6:00 p.m. on the following Sunday in even numbered years.

In odd numbered years, commencing spring break 2017, L.D.S. shall have parenting time with E.C.S. from 6:00 p.m. on the second Sunday of the spring break until 6:00 p.m. on the Sunday preceding the first day of return to school. [ 77 ] In the event that L.D.S. is still residing outside of Kamloops, there shall be no other weekends in the month of March. [ 78 ] In alternating years in which Easter occurs during the month of April, L.D.S. shall have parenting time with E.C.S. from 6:00 p.m. on the Thursday preceding Good Friday to 6:00 p.m. on Easter Monday.

In the event that L.D.S. is still residing outside of Kamloops, Easter weekends in his years shall constitute one of his weekends. [ 79 ] K.E.S. has suggested that L.D.S. have three non-consecutive weeks during the summer months. This would be too disruptive given the difficulties encountered in the exchanges. L.D.S. shall have four weeks of parenting time during the school summer break which shall be in not less than two week segments but may be four consecutive weeks. The parties shall fix L.D.S.’s parenting time for the summer not later than May 31 of each calendar year.

L.D.S. shall propose his dates to K.E.S. not later than May 1 of each calendar year. K.E.S. shall confirm those dates with L.D.S. not later than May 15 of each calendar year. In the event that L.D.S. does not advise K.E.S. of his preferred dates by May 1 of each calendar year, K.E.S. shall select the four weeks for L.D.S. and advise him of those dates by May 15. In the event that L.D.S. advises K.E.S. of his selected dates and K.E.S. does not reply by May 15 in a given calendar year, then L.D.S.’s dates shall be confirmed. [ 80 ] L.D.S. has been unreasonable about K.E.S.’s chosen designates for the exchanges.

There has been no valid explanation for why he has behaved in this manner. Similarly, K.E.S. has no valid explanation for why she persisted in doing the exchanges herself after obtaining an order with protective intentions to allow others to do those exchanges for her. That being said, whether the acrimony persists or not, it may well be convenient for the parties to have others do the exchanges for them. Either party may designate a responsible third party to pick up E.C.S. in their place. [ 81 ] L.D.S. has, from time to time, indicated a desire to move to Penticton where he believes he has better opportunities.

His current plan is to move to Kamloops. If he should move to Penticton, that would be a material change in circumstances insofar as the pick-up and drop-off arrangements are concerned. In the event that he moves to Penticton, he shall pick up E.C.S. on time at the pick-up times and drop her off at K.E.S.’s home at the applicable times. [ 82 ] E.C.S. will be spending significantly less time with her father than she previously enjoyed. Whether she is with her mother or her father, the other parent shall be able to contact or receive contact from E.C.S.

Either parent is at liberty to contact E.C.S. up to twice per week while E.C.S. is in the care of the other parent by way of telephone or video call. In the event that the telephone or video call is not answered, the parent who has E.C.S. will assist E.C.S. in returning the call within 24 hours. In addition, if E.C.S. wishes to contact the other parent at any time, the parent she is with shall assist E.C.S. in placing that call. [ 83 ] I am not satisfied that L.D.S. has made appropriate inquiries into the sleep dysfunction he has. On its face, he appears to prefer a nocturnal lifestyle.

This has compromised his work and his personal relationships. While he has been able to adapt to a daytime lifestyle when he has had the care of E.C.S., I am not confident that this would persist once E.C.S. starts school. The responsible course of action is for L.D.S. to have his sleep patterns explored professionally to satisfy himself, K.E.S. and the court that he does not suffer from a sleep disorder. [ 84 ] L.D.S. also needs to address the outstanding issues with his warrant in Alberta. It is untenable that it should persist for so long without L.D.S. addressing it.

If L.D.S. is going to face incarceration because of this breach, he needs to deal with that in a responsible manner so that he serves his time and is able to continue on with his parenting responsibilities. [ 85 ] On the matter of parenting responsibilities, it is appropriate for the person who has primary residence of E.C.S. to be the one who exercises the bulk of the parental responsibilities. That person will, going forward, be K.E.S.

K.E.S. seeks to share equally all parental responsibilities except that, where decisions must be made, she wishes to have the parental decision authority with liberty to L.D.S. to apply to the court to review any such decisions she makes. That is the order I am making with respect to parental

responsibilities. I also permit K.E.S. to apply for a passport for E.C.S. without L.D.S.’s consent, written travel authorization, or signature. I also order that either parent may travel internationally with E.C.S. upon 30 days written notice to the other parent without requiring travel authorization from that other parent, so long as it does not impede the parenting time of the other parent. In that case, permission shall be required. [ 86 ] I am also satisfied that it is appropriate that L.D.S. take parenting and anger management counselling.

While he is evidently capable of managing E.C.S.’s daily needs while she is in his care, he is not capable of managing responsible communications with her other parent, or conducting himself appropriately in E.C.S.’s presence during exchanges. He also lacks insight into how his own behaviours impact other people in his life including his dismissive attitude toward his repeated breaches of court orders, minimizing his own misconduct, and blaming others for his inappropriate behaviours.

I direct that L.D.S. engage in counselling pursuant to s. 224 of the Family Law Act . [ 87 ] I also make the following conduct orders:

a) The parties will put the best interests of the child before their own interests, encourage the child to have a good relationship with the other parent and speak to the child about the other parent and that parent’s partner in a positive and respectful manner, and make a real effort to maintain polite respectful communications with each other, refraining from any negative or hostile criticism, communication or argument in front of the child.

b) The parties will not question the child about the other parent or time spent with the other parent beyond simple conversational questions, discuss with the child any inappropriate adult, court or legal matters, or blame, criticize or disparage the other parent to the child.

c) The parties will encourage their respective families to refrain from any negative comments about the other parent and his or her extended family, and from discussions in front of the child concerning family issues or litigation.

d) For the foreseeable future, the parties shall communicate by text message only and shall ensure that those text messages are restricted to issues relating directly to E.C.S. Both parties shall ensure that the text message communications are respectful. Both parties shall also ensure that they respond to those communications promptly and substantively. [ 88 ] K.E.S. asked that I remain seized of this file for the next two years. While it is considered to be of some benefit to have a judge seize him or herself for a period time following a case of this length, setting it for two years may prove to be excessive.

I am seizing myself of all future applications for the foreseeable future. ____________________________ S.D. Frame Provincial Court Judge