J.L.B. v. C.M.D. Date:, 2015 BCPC 85

Citation: J.L.B. v. C.M.D. Date: 20150414 2015 BCPC 0085 File No: 15227 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.L.B. APPLICANT AND: C.M.D. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Appearing on their own behalf: J.L.B.

Appearing on their own behalf: C.M.D. Place of Hearing: Kamloops , B.C. Date of Hearing: February 10 - 12, 2015 Date of Judgment: April 14, 2015 [ 1 ] This is J.L.B.’s application for sole guardianship, allocation of parental responsibilities, child support, contact time and a protection order. C.M.D. has filed a reply seeking guardianship, parenting time, contact time with the child and refuting the claim for child support. [ 2 ] J.L.B. and C.M.D. had been in a relationship but were no longer living together when the child of their union, C.C.B., was born on [omitted for posting].

There is much hostility between the parties, including allegations of domestic abuse on C.M.D.’s part and alienation on J.L.B.’s part. I will come to those issues more fully in due course. However, I address first the issue of C.M.D.’s application for guardianship. [ 3 ] C.M.D. does not qualify as a deemed guardian under s. 39 of the Family Law Act because he was not living with J.L.B. when the child was born; he has never resided with his child; there is no agreement between J.L.B. and himself that he is a guardian; and he does not regularly care for his son.

Consequently, C.M.D. was required to and did make an application for guardianship under s. 51. While he was slow in doing so, he has also provided the necessary Form 34 searches. [ 4 ] The Child Protection Record Check did not produce any positive hits. However, the Protection Order Registry Search produced two positive hits, one being in Grand Forks Provincial Court, and one being in Chilliwack Provincial Court. The Grand Forks matter relates to a domestic incident in a prior relationship C.M.D. had which ended badly. It ended badly enough that he was charged with assault.

C.M.D. said the assault comprised of him spitting on his girlfriend during their break-up. To say that C.M.D. glossed over the facts is putting it extremely mildly. The incident was a very concerning one which also involved him smashing the windshield on his girlfriend’s car. C.M.D. was put on terms including no contact and no alcohol. C.M.D. did have contact with the complainant and he did drink alcohol. His consumption of alcohol ultimately resulted in a roadside suspension, which was not only a breach of his terms but a further offence.

As it happened, though, the roadside suspension fell with all of the other suspensions of similar nature when the legislation was struck down as unconstitutional. [ 5 ] J.L.B. then pursued a protection order of her own in Chilliwack, which was subsequently cancelled. I will address this protection order more fully in my Reasons, but I find there was no basis for it. [ 6 ] I have addressed J.L.B.’s concerns about C.M.D.’s temper and his unwillingness to comply with court orders when it does not suit him to do so.

Those observations aside, I must determine whether it is appropriate that C.M.D. be a guardian of his child. C.M.D. is not a deemed guardian and so I must look to s. 51 to determine whether it is appropriate to make such an order. That

section requires me to look at the best interests of the child, and only the child, as set out in s. 37(2): 37

(2) To determine what is in the best interests of a child, all of the child's needs and circumstances must be considered, including the following: (

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

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

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

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

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

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

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

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

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

j) any civil or criminal proceeding relevant to the child's safety, security or well-being. [ 7 ] In doing so, I must also consider an assessment of family violence as set out in s. 38: 38 For the purposes of section 37 (2) (

g) and (h) [best interests of child] , a court must consider all of the following: (

a) the nature and seriousness of the family violence;

(

b) how recently the family violence occurred; (

c) the frequency of the family violence; (

d) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at a family member; (

e) whether the family violence was directed toward the child; (

f) whether the child was exposed to family violence that was not directed toward the child; (

g) the harm to the child's physical, psychological and emotional safety, security and well-being as a result of the family violence; (

h) any steps the person responsible for the family violence has taken to prevent further family violence from occurring; (

i) any other relevant matter. [ 8 ] In determining all of these factors, I have considered all of the evidence led by J.L.B., C.M.D. and C.M.D.’s parents as well as each of the witnesses each of these parties has called in their cases. I will not be outlining all of that evidence detail by detail, but will be giving a broad overview only. It is only in extreme circumstances that the court will remove a natural parent as a guardian of a child.

I find that the same considerations must apply in cases such as this where a biological parent has not lived with the child for reasons not within his control. [ 9 ] J.L.B. and C.M.D. met in July, 2012 and began living together on September 1, 2012 in Savona, British Columbia. J.L.B. said that they separated January 11, 2013, C.M.D.’s birthday and she learned she was pregnant on January 21, 2013. [ 10 ] J.L.B. said they decided to get back together and C.M.D. promised he would take counselling, which he did not pursue. They were together again until March 29, 2013, by which time they were living in Kamloops.

C.C.B. was ultimately born on [omitted for posting]. [ 11 ] J.L.B. alleged that C.M.D. was controlling and manipulative during their relationship. She said he would tell her who she could hang out with, what she could wear and would violate her privacy by going through her cell phone and on her Facebook page. [ 12 ] J.L.B. also described her relationship with the R.s as being tolerable. She said that she did not enjoy being in their presence and that the atmosphere was hostile. She only visited the R.s because she wanted to support C.M.D.

However, she did agree that she studied in the R.’s home, had them care for her dog, and she turned to C.R. when she was frustrated and tearful with her plight at work. This certainly does not support the picture of tension, violence and unfriendliness that J.L.B. attempted to portray in her testimony. [ 13 ] C.M.D. portrays J.L.B. as a controlling and selfish person. For instance, he had a job at [omitted for posting] and she would refuse to pick him up from work. This was despite the fact that he had no licence. She would expect him to have his mother pick him up or take the bus.

He said J.L.B. felt it was not fair for her to have to come and get him. He also said that his parents were concerned that he was being isolated from his friends and family during the course of their relationship. [ 14 ] The R.s testified that they were very supportive of J.L.B. particularly given her marked unhappiness with her career choice. She would be frustrated to tears and they would be supportive of her. They provided her access to their home so that she could study. They cared for her dog.

They understood that J.L.B. took several leaves of absence from her work based on her difficulty coping with the children at her workplace in School District 73 as a school support worker. [ 15 ] J.L.B. raised a number of concerns in the course of the trial about C.M.D.’s capacity to be a guardian, to have contact time unsupervised, and for the R.s to have contact time. I find most of her evidence in this regard to be manipulative and unfounded.

I find that she contrived evidence to depict herself and her family in an unrealistically bucolic manner while depicting the R.s and C.M.D. in a most negative manner that stretched credulity. This is not to say that C.M.D. and the R.s were not without fault in the events that brought them all to court, but I find that the R.s were far more objective and credible. C.M.D.’s credibility also suffered. [ 16 ] Of the issues that arose repeatedly, smoking cigarettes was among the most trivial. J.L.B. testified that when she and C.M.D. were together, the R.s smoked in their non-smoking rental.

She also said that she had received C.C.B.’s clothes from C.M.D. on exchanges that smelled so badly of cigarette smoke she had to put them in a bag in her trunk. C.M.D. by way of e-mail on April 15, 2014 apologized for the smell of smoke. His apology was profuse and his e-mail was conciliatory. He does not say whether or not the smell was on the clothing because they were placed in a vehicle that smelled of smoke or whether he was conceding that he was smoking around his son.

I also note in that e-mail that C.M.D. is responding to what was evidently a negative reaction from J.L.B. when he sent back a cute set of mitts and a hat for C.C.B.’s walks. He is also responding to a suggestion from J.L.B. that he does not want the visits to be successful. He expresses heartfelt sentiments about the difficulty of leaving his son to return to Kamloops. [ 17 ] J.L.B. also expressed concern that the R.s continue to smoke in their house and their car to this day. However, J.L.B. concedes that she smoked as well.

While the R.s and C.M.D. are supposed to accept at face value that J.L.B. does not smoke around her child, she is not prepared to extend the same courtesy to them when they profess that they do not smoke around C.C.B. C.M.D. said that he was not going to argue with J.L.B. about whether he was smoking around C.C.B. He said he felt it was not worth getting into an argument. He said that he still smokes but not in the house or the car. [ 18 ] One of the witnesses, Kim Richard, is a resident care-aide who has known C.M.D. for 27 years.

She was not aware that the R.s smoked in their previous home and acknowledged that it was definitely a concern for children. However, she confirmed that the R.s do not smoke in their current residence - which she has been in - and she has not smelled cigarette smoke. She also maintained that they do not smoke in their vehicles. The R.s conceded that they did smoke in their home on [omitted for posting]. They said that J.L.B. smoked there as well. When they found out that she was pregnant, they stopped smoking around her. In the home that they now rent, they do not

smoke. [ 19 ] At this time, there is no law that says a parent or grandparent cannot smoke around a child. The government has left it to the discretion of the parents to determine what is and is not in the best interests of their own children. To that extent, the courts are loathe to interfere with parenting parameters of this nature. Whether a person smokes or not is not going to be a factor at all in the consideration of whether they are an appropriate guardian.

It does not fall under the heading of a child’s health and emotional wellbeing, the ability of a person to exercise his or her responsibilities, or impact the appropriateness of an arrangement that would require the guardians to cooperate on issues affecting the child. The issue is simple. If guardians expect to have the responsibility of guardianship issues, they must communicate their expectations on this issue. J.L.B. does not want anyone to smoke around the child. C.M.D. agrees. No one is presently smoking around the child.

This is the end of the issue. [ 20 ] Another issue that has surfaced repeatedly throughout the evidence is with respect to the drinking habits of each of the people concerned. J.L.B.’s evidence in this respect was akin to the pot calling the kettle black. At the conclusion of her evidence, C.M.D. and the R.s were depicted as people with significant alcohol issues. J.L.B. testified that she has seen both of the R.s drink to excess. She testified that on one occasion she saw C.R. do two shots of Vodka, pour herself a drink for the night and then go out to get cigarettes in her vehicle.

I do not believe this evidence. [ 21 ] C.M.D. had been drinking when he assaulted his former girlfriend and was required to have an interlock device put in his vehicle when he was prohibited from driving after he blew a “warn”. Alcohol management presents as a problem for him. [ 22 ] J.L.B. testified that she rarely drinks. She said she did not feel comfortable drinking with C.C.B. in her care. She also competes in triathlons and has competed in an ironman race. A healthy lifestyle is important to her and therefore drinking and smoking do not fit in.

These, of course, are lifestyle choices of her own. [ 23 ] The J.s are the other side of C.M.D.’s family. J.L.B. said that she knows they drink but does not have a problem with the quantity of alcohol they consume. She does have a problem with the quantity of alcohol that the R.s consume. However, her evidence was very vague about what she considered the acceptable quantities to be for both the J.s and the R.s. [ 24 ] Where C.M.D. is concerned, J.L.B.’s issue is that he becomes angry when he drinks. She cited one occasion when he was at a baseball dinner.

He had J.L.B. on speaker phone when she made a joke about one of his friends being attracted to her. He took her off speaker phone and made comments all night about not liking what she had said. What this really depicts is that J.L.B. made an inappropriate comment on speaker phone embarrassing C.M.D. in public. C.M.D. could not let the offence go. Nothing more can be made of this. [ 25 ] That same night, he stopped by where she was staying and admitted that he had got into an altercation with someone. On this occasion, he reeked of alcohol and had slurred speech.

He told her that he had been restrained on the way home by two friends in a cab. He was demonstrating with J.L.B. what he had done. She was scared and told him to stop. He became upset and was crying. She said his sentences were not coherent. He followed her to the bedroom and would not leave her alone. She had to threaten to call the police to make him leave. She said that it is incidents such as this that make her fear for her safety.

This further demonstrates that C.M.D. needs to revisit his drinking habits if he cannot manage his emotions. [ 26 ] In cross-examination, J.L.B. conceded that she had also drunk alcohol in the course of her relationship with C.M.D. C.M.D. also pressed her about why she would continue to purchase alcohol for them if she had a concern about his drinking. Her explanation that he would get mad if she did not give him her card lacked the air of reality. [ 27 ] J.L.B. insisted that C.M.D. have an alcohol assessment completed. He did so. She does not accept the results.

These results are not in evidence. [ 28 ] J.L.B.’s mother, L.B., testified that in Christmas 2012 they had asked C.M.D. for assistance painting some doors. They arrived at 10:00 and he was already drinking rum and coke. She said he only did one door before he went to bed. In cross-examination, L.B. said that when she went to their daughter’s for dinner on Christmas Eve, he was drinking. For reasons that I will address in due course, I find that L.B. was an unreliable witness who is so partisan that she exaggerates and prevaricates.

I cannot rely on her testimony absent compelling corroborative evidence. [ 29 ] L.B. acknowledged that her husband is a recovering alcoholic. They separated for six months at one point and then he did not drink for 13 years. Now they have a social glass of wine from time to time. She prevaricated when she was cross-examined by the R.s about her husband drinking on social occasions. She acknowledged that she was drinking on those occasions. [ 30 ] Brenda Simpson who is a registered clinical counsellor testified that she met with C.M.D. and J.L.B.

During the session with the two of them, C.M.D. agreed that he had difficulty with impulse control, had alcohol issues and agreed that he had money owing to J.L.B. Ms. Simpson’s evidence must be disregarded almost entirely. C.M.D. said that he had issues with Ms. Simpson’s report and Ms. Simpson declared that she was there to testify that her report was true. In fact, her report is only true in the sense that she is repeating largely what J.L.B. has told her. The report presents itself as though Ms. Simpson was either a witness to the events described or to C.M.D.’s admissions that the events had occurred.

That is not the case. Her report is of little worth. However, I accept that he acknowledged he had an issue with alcohol. He clearly does. [ 31 ] C.M.D. testified that when he was hired at the [omitted for posting] in Savona, he would come home to find J.L.B. drinking a glass of wine in the hot tub and she would have purchased a six pack of beer for him. [ 32 ] C.M.D. also said that after J.L.B.’s parents swore an affidavit that essentially described him as a drunk, they offered to rent their Pacific Way apartment to him.

He also referred to an e-mail from the B.s upon learning that he and J.L.B. were going to have a baby. They described how excited and happy they were. This was after they made claims that he was a drunk and caused them to fear for their daughter’s safety.

[ 33 ] J.R. testified that he has seen Mr. B., who should not be drinking, quite inebriated at a St. Patrick’s party in 2013. [ 34 ] C.M.D. put it most accurately when describing J.L.B.’s inconsistent views on alcohol. He said that both of the B.s are drinkers. Mr. B. is a reformed drinker who still drinks and he left the country to have an affair with another person. C.M.D. said making personal attacks on Mr. B. about his conduct does not take away from him being a good grandfather. He is right. J.L.B. still makes C.C.B. available for her parents to visit him despite Mr.

B.’s ongoing alcohol challenges. [ 35 ] Ms. Richard testified that she is aware that C.M.D. drinks but has never seen him drink to excess. It is clear that he has drunk to excess in the past and possibly even the present, but this evidence suggests that he is capable of determining what circumstances he should drink in and which he should not. Ms.

Richard has also testified that she has been with the R.s drinking on some occasions but has never known them to drink and then proceed to drive. [ 36 ] There had been some suggestion from J.L.B. that C.R. had been hospitalized or in rehabilitation for drug abuse or a mental health problem. J.L.B. had no facts to base this upon and was entirely wrong about the circumstances. This is typical of J.L.B.’s reactions as she grasps at veritable straws to depict the R.s in the worst possible light. On one occasion, C.R. sought counselling following the murder of two close family members.

It is unfathomable to me that J.L.B. can take such a personal tragedy of C.R., who has been supportive of her during her own times of despair, and distort it in such a manner to achieve her own ends. [ 37 ] Apart from that, C.R. said she consumes no drugs not prescribed for her and no illegal drugs. In fact, her association with a family assistance program is as a support for co-workers who have lost family members and are grieving. C.R. is very much engaged in giving back to her community.

Furthermore, C.R. testified that as an employee of [omitted for posting], she and J.R. are both subject to random drug and alcohol testing. She testified, and I accept, that it would be difficult to have an alcohol and drug problem and maintain employment at [omitted for posting]. Although C.R. acknowledged that J.L.B. had told her about her parent’s alcoholism, C.R. felt they appear to be doing well. While C.R. had seen them drinking at the St. Patrick’s party it was not a concern to her. She does not believe that they would risk C.C.B.’s safety, health or wellbeing. [ 38 ] Mr.

Balyx works with [omitted for posting] as well. He is a permanent road manager. He testified that [omitted for posting] - and both of the R.s are [omitted for posting] - are safety critical. He testified that engineers are subject to drug and alcohol tests. He has not seen any issues with drugs or alcohol or mental health issues with respect to the R.s. He said it would come to his attention if such problems existed because it is part of his job to monitor such behaviour. [ 39 ] In the end result, I find that J.L.B.’s concerns about the alcohol consumption by C.M.D. and the R.s is without foundation.

Her own alcohol habits may abate while she is training for her marathons but she has enjoyed a similar drinking pattern to that of C.M.D. in the past. I find that both she and C.M.D. are capable of regulating their drinking habits in order to properly parent their child. C.M.D. needs to moderate his alcohol consumption at other times to avoid complications excess consumption has brought to his life.

I find that the R.s enjoy alcohol but do not consume it to excess or in inappropriate ways. [ 40 ] Similarly, I find that J.L.B.’s allegations of concern for her safety based on the conduct of C.M.D. and the R.s has also been distorted. That does not mean to say that C.M.D. does not have an anger issue. It is clear that he does.

However, given the particularity with which J.L.B. has been able to document purchases of not only the flip flops, coffees and other expenses that she incurred on behalf of C.M.D. throughout their entire relationship, but also every issue she has had with him since they separated, I find it curious and unpersuasive that she is unable to document more than vaguely her allegations of his physical abuse. For instance, she gave broad brush general evidence that C.M.D. would get drunk and punch the walls. She amended this on cross-examination to say that perhaps he had done this twice.

C.M.D. did not deny this but validly pointed out that she had no photographs to show where he had punched these walls. In cross-examination, J.L.B. conceded that she was not claiming he put any holes in the walls. [ 41 ] In fact, J.L.B. on cross-examination was only able to cite C.M.D.’s behaviour toward his former girlfriend and the one night that he was drunkenly demonstrating an incident to J.L.B. as his acts of violence. She said there were many incidents of these in her relationship, but she could not give any particulars.

As I have noted, she is quite particular and detailed in all other respects of her evidence. [ 42 ] J.L.B. denied that she left Kamloops because she feared for her safety or to put distance between herself and C.M.D.’s family. She said she did it to be closer to her own family and supports. Her parents live in Savona and make frequent trips to the coast to see their grandchild. I am not satisfied that moving to the coast improved her supports from them.

However, I accept that her move had nothing to do with fear of C.C.B.’s paternal family, but was a calculated move to distance them. [ 43 ] Similarly, J.L.B. cited the numerous angry and hostile e-mail exchanges from C.M.D. However, her own e-mails are also hostile and angry. Respectful communications must work both ways. J.L.B. cannot provoke an argument and expect that C.M.D. will not rise to the bait. C.M.D. and J.L.B. both need to work on respectful communications in order to co-parent this child.

If they do not make significant strides in this regard, it may become necessary to order that they each take counselling at their own expense. [ 44 ] On their initial break-up, January 11, 2013, J.L.B. said that C.M.D. had quite a few drinks that evening. They got into an argument and he began punching walls in the house. She had to call her parents in Arizona to de-escalate him. They were successful. He did threaten her on that occasion by “getting in her face” and asking her if she wanted to see how nasty he could get.

C.M.D. denies the tenor of this argument but he was aggressive, intimidating and inappropriate in any case. J.L.B. also called C.M.D.’s friends to come and get him. [ 45 ] Toward the end of March, 2013, they broke up again. J.L.B. was about to start a 48 hour respite shift. They broke up right before she started this shift. She told him he could pack his belongings and leave while she was working. He became angry and she said that matters escalated. She called the RCMP to ensure she was within her rights and then had her parents change the locks.

She told C.M.D. he could pick up his belongings the next day while her father was there. She complained that C.M.D. said she was “fucked” for changing the locks. However, the text messages are in evidence and they go like this: C.M.D.: Just leave me alone.

J.L.B.: You are the one texting me. C.M.D.: I’ll call you and tell you when Im heading there, and will be calling the cops if its not open when I am there. J.L.B.: Stop talking if you want me to leave you alone. C.M.D.: You’re fucked. J.L.B.: Dad will be there at 11 am to let you in … [ 46 ] There is nothing threatening, hostile or unexpected in this text exchange from C.M.D. In the circumstances, his responses are, if not polite, at least understandable.

There is nothing in them that should cause her any alarm for her safety. [ 47 ] Similarly, she was upset by correspondence she received from him when he was angry about mail she had not told him had arrived. It cost him money because she did not send his mail on. I have also reviewed that correspondence. In it, he indicates that he does not appreciate her lack of consideration and that he found it to be spiteful. He also indicates in that e-mail that he was prepared to meet with her and discuss terms with a counsellor, but not if she is unprepared to budge from her position.

That is an entirely reasonable position to take. It had not been his experience to that point that she had been prepared to be flexible and so it is understandable that he would not want to spend time or money to achieve nothing. Most noticeably, in that e-mail he says that he is prepared to assist her with picking up some pills and providing support once the baby is born.

He wanted her to avoid stress saying “… and the idea of you stressing about things like that, regardless of how we feel about each other is not something I want for the mother of my child dealing with, on top of caring for a new born child…” He acknowledges in that e-mail that he has been dishonest with her in the past and closes by expressing his appreciation for her allowing him to see “Sooke”. There is nothing hostile, threatening or concerning in this e-mail. [ 48 ] It is in this same vein of “threats” that J.L.B. complained of an e-mail she received from C.R.

The impugned text message asks J.L.B. how she is doing. C.R. explains that there are a number of lawyers involved because the grandparents have to have their own lawyer and identifies the advice they have received that J.L.B. cannot keep the C.R. away from their grandson. She also says in that text that she expects that C.M.D. would be granted equal custody and guardianship and that he would be equally responsible for the financial obligations. She tells J.L.B. that they have inquired about J.L.B.’s concerns with respect to breastfeeding and that they had been told J.L.B. would be expected to express breast milk.

C.R. said in that text, (and this is the part that J.L.B. said was threatening to her): I am messaging you because, J.L.B., I do not want to bury you and your parents in legal fees for years to come. I have made clear I will do my best to first to re-state my firm belief we should be a family, and this child’s best interests are only served if we succeed at that. I do not want him to be raised in a hostile environment. That text is interrupted with a text from J.L.B. saying: I informed C.M.D. if there was further contact during my pregnancy my contact information would be changed. That will happen this evening.

Feel free to proceed with legal action as you and all your lawyers see fit. J.L.B.’s text continues on: We would all have to come together to ensure the healthiest, happiest future for him. We are all willing to do that on this side, and I hope you all are as well. I care deeply for you J.L.B., and even though C.M.D.’s Dad J.R. has never met you, they are on board to attempt to do the right thing, as are D. and T. We all have dealt with lawyers for years, we all know how this will go if that is the road we are forced to travel, we all have legal rights, but my first choice [remains] harmony with us all ...

The text continues in that vein with C.R. closing hoping that J.L.B. is well. J.L.B. responded by saying: If you cared you would understand your communication is stressful which can have developmental effects on this child. This is why I will not communicate with you. If you respect that stop texting. [ 49 ] There is nothing in C.R.’s text messages to J.L.B. that are threatening in the sense that there is physical or emotional harm threatened or intended. There is nothing of concern in those text messages.

J.L.B. had, at this point, shut out the grandparents from their unborn grandchild and made it clear that she was going to make them fight for contact time with their grandchild. She should have expected no less than for the R.s and C.M.D. to consult legal counsel, to ensure their rights, and try to bring about a resolution that did not involve everyone coming to court for years to come.

There is no basis for a protection order arising from this conduct. [ 50 ] J.L.B. complained that even after asking the R.s not to contact her any further and providing them with a doctor’s note that she should not be having any stress during the pregnancy, she continued to hear from them. Even with the issues with stress that J.L.B. was suffering, there is nothing in the contact from C.M.D. or the R.s which supports a protection order. J.L.B. took herself away from the father and grandparents of her unborn child. She tried to exclude them from everything including the birth of the child.

C.M.D. did not even learn that his son had been born until he saw J.L.B. in court. Her behaviour in this regard was appalling. If she suffered stress during her pregnancy because of their communications, she brought it on herself. This matter should have and could have unfolded in a much more civilized manner, but she had no interest in pursuing avenues that would appease the family of her child, while leaving her in relative peace.

[ 51 ] Nowhere in the evidence is it more obvious that the B.s have tried to distort relatively benign incidents than in the incident where C.M.D. was moving out of the apartment. Mr. and Mrs. B. were present. J.L.B. had dumped all of C.M.D.’s belongings into the middle of the living room. This alone does not depict someone who is fearful of her safety. It is a confrontational and hostile act on her part. Mr. B. was angry that the D./R. group were late. He was yelling in a rage. J.L.B. was complaining that C.M.D. had been destructive of their property.

She demonstrated this destruction to C.R. by taking her to the bathroom and showing her a bath mat with dirty foot prints on it. That is the extent of the destruction C.M.D. wreaked on their apartment. With this evidence went her credibility. [ 52 ] C.R. described Mr. B. on that occasion as being enraged. He was yelling and swearing, and he had his finger in C.M.D.’s face. C.R. said that she was very shaken. However, she has had to deal with a lot of angry men in her career so she calmed the situation. She allowed Mr. B. to “go off til he had expressed his feelings enough times”.

She coddled and calmed him but said that she was frightened. During this, C.M.D. did not say anything. He listened to Mr. B. Then L.B. stepped in and opined that the police should be in attendance for C.M.D. to remove his things. That was when L.B. claimed that C.M.D. had been destructive in the apartment. She also complained that he had used her shampoo. Before they left, though, C.R. said that the B.s had calmed down.

L.B. expressed to them that she hoped they could all be grandparents together, they embraced and then C.R. left with C.M.D. [ 53 ] It should be noted that following that incident, although C.R. had been intimidated by Mr. B.’s conduct, she had sent an olive branch message. C.R. testified that she meant that message because she was close with her own ex-husband and his new partner and all of the other people involved in C.M.D.’s life.

She was used to the effort required to make split families work and was a firm believer in making it a cooperative effort. [ 54 ] There was another incident where one of J.L.B.’s witnesses lay waste to her claims of intimidation. This was Brenda Simpson. While at court, the parties were encouraged to arrange for an opportunity for the grandparents and C.M.D. to meet C.C.B. An appointment was arranged with Ms. Simpson’s assistant. The assistant did not consult Ms. Simpson before setting the appointment. Ms.

Simpson reacted rather frantically when she discovered that an appointment had been set at a time when she was required elsewhere. This was not the issue. [ 55 ] The issue was that when she emerged from her office, the R.s had arrived with a set of great grandparents. Understandably, the R.s were upset that once again they were not going to be seeing their grandson. C.M.D. intended to come to that meeting but was not present in the office when Ms. Simpson cancelled it. The R.s left, understandably unhappy at this outcome. Ms. Simpson’s evidence, however, was that she felt intimidated by C.M.D. and the others.

As I said, C.M.D. was not in the office. The other two elderly people who accompanied the R.s were small, cherubic people who beamed their smiles up at me in court. There could not be two less intimidating people. I was astounded and appalled by Ms. Simpson’s clearly partisan view expressed in her communication to J.L.B. and appalled by her insupportable evidence in court. [ 56 ] Ms.

Simpson admitted that her report had been crafted after discussions with J.L.B.; that it possibly contains some “admissions” from C.M.D. that came only from J.L.B.; and conceded that she based her opinion on her “intrinsic instinct I have about people after 33 years”. She conceded that C.M.D. did not raise his voice in the session the couple had together and that he exhibited his anger by shaking his head when he did not agree to statements. She was firm that C.M.D. had been present in her office for the supervised visit but had to concede later that it was only something that she imagined in her memory.

She described his body stance and loud footsteps as the cause of intimidation. The fact that he was not present belies all of this evidence. To this she said “If I am wrong I am wrong but I am telling you what my memory is”. She has no recollection of seeing J.R.’s parents yet was able to communicate to J.L.B. that they were clearly people who had lived a rocky road. Ms. Simpson admitted she was reacting emotionally. Ms. Simpson was simply unable to substantiate her comments made in her communications with J.L.B. or the findings in her report. Ms.

Simpson admitted that if she rethought the matter, she would never put the comment in her communication. [ 57 ] In the end result, C.M.D. denied admitting to Ms. Simpson that he had a temper and poor impulse control. Be that as it may, it is clear that C.M.D. does have an in issue controlling his anger. The difference is that, over the years, he has learned not to demonstrate it with violence against his partner. [ 58 ] On another occasion, L.B. told Ms. R. that C.M.D. was stalking J.L.B. Ms. R. contacted C.M.D. to find out what it was about.

It seemed that L.B. misunderstood something her daughter had said to her. In fact, after this hostile break-up and move out, C.M.D. attended J.L.B.’s home from time to time to help her move heavy furniture and other similar favours. [ 59 ] I find that there is no basis for a protection order. C.M.D. has significant challenges with his anger management but does not act out with violence against people even in the height of his anger. J.L.B. considers any opposition to her will to be harassment and threatening.

That is no basis for a protection order. [ 60 ] It must be noted, however, that J.L.B. was having difficulty with her pregnancy. She was required to leave work early because of the stress related to her employment. As it happened, J.L.B. does not appear to have ever had an intention of returning to work following her maternity leave. Instead, she moved to the coast and registered at Simon Fraser University for a program she claimed could not be taken in Kamloops. She kept her residence in Kamloops but relocated her home to the Lower Mainland.

That location is undisclosed “for fear of further harassment” from the R.s and C.M.D. [ 61 ] Initially, C.M.D. and the R.s doubted that J.L.B. had moved to the coast for schooling. They believed that she had moved there to prevent C.M.D. having any

part in his child’s life. J.L.B. denied this. However, she has declined to give any fulsome evidence with respect to the necessity of moving to the coast. J.L.B. initially intimated that she refused to give this information because she did not want C.M.D. to know where she was going to school or what courses she was taking. [ 62 ] J.L.B. attempted to have the proceedings transferred to Chilliwack but she has been denied orders to do so. She will continue to have to come to Kamloops for these proceedings.

I will remain seized of all matters arising from my decision for at least a full year until I am satisfied that the parties will not have to continue to revisit old issues and they are capable of making parenting decisions together without further conflict. J.L.B.’s application to transfer this file to Chilliwack is again dismissed. It was her decision to move her residence on the veritable eve of delivering her child. Consequently, C.M.D. should not be the one who has to expend all of the time,

effort and money to ensure that he is able to see his child. [ 63 ] Following the move, and her early departure from work due to stress, J.L.B. hired a doula, had medication for extreme morning sickness, hired an acupuncturist to induce her labour, and attended pre-natal yoga. She wants C.M.D. to contribute to these expenses. I have no evidence from J.L.B. why she would not have been covered from her employment medical plan while she was on employment insurance.

If she had already resigned from her employment at a point in time when she was pregnant and would require medical expenses, I must determine whether it is appropriate that C.M.D. contribute to the consequences of that decision. With respect to the other expenses claimed, while one cannot fault a mother for hiring the services of a doula or resorting to an acupuncturist instead of drugs to induce labour, these are not expenses that are in any way necessary. They are privileges available to those who can afford them.

They are not expenses that should be met upon someone who is not consulted or otherwise a willing participant in those expenses. J.L.B. is claiming total $11,608.46 for lost wages and $1,007.24 for prenatal expenses. [ 64 ] C.M.D. cross-examined J.L.B. about whether she had doctor prescriptions for the prenatal expenses and whether or not it was a wise decision for her to take the medication for morning sickness. Her response to his query about whether she was aware the drug was not authorized by Health Canada was to say that the medication was administered by a doctor.

The matter really does not proceed beyond that point. If a qualified doctor prescribes medication, then J.L.B. is entitled to rely upon that advice and prescription as an appropriate course of action. [ 65 ] There do not seem to be very many cases considering the entitlement to prenatal expenses and none at all under the new legislation.

The provision under the Family Relations Act read at ss. 93(1) and (5): 93(1) Subject to the Divorce Act (Canada) , a court may make an order on application, or if a court makes or refuses an order for judicial separation or dissolution of marriage or a declaration that a marriage is null and void, requiring a party to the proceeding to discharge his or her liability

(5) An order under this

section may also provide for one or more of the following: (

e) payment for expenses arising from an incidental to (

i) the prenatal care of the mother or child, or (ii) the birth of a child [ 66 ] That legislation has now been replaced with s. 170 which provides as follows: 170 In an order respecting child support or spousal support, the court may provide for one or more of the following: (

f) that expenses arising from and incidental to prenatal care of a mother or child, or the birth of a child, be paid … [ 67 ] Consequently, I must bear in mind the change in the wording when I consider the cases under the prior legislation. The transition guides do not provide any ministerial explanations for this change in wording. It is particularly important because J.L.B. does not qualify for spousal support, not being a spouse. [ 68 ] In Mehmet v. Smith , [1996] B.C.J. No. 3095 , the parties were involved in a 10 month relationship resulting in a child.

The mother made an application for $2,179 related to child care, $2,000 related to prenatal care and the birth of the child, and lost income arising from the birth in the sum of $10,350. Ms. Mehmet was a lawyer and was a sole practitioner. Ms. Mehmet’s claims were, insofar as this matter is concerned, divided between expenses incurred directly related to the prenatal care and birth of her child and loss of income suffered as a result of the child’s birth. She was away from her office for two months during which time she lost earnings estimated at $10,350.

Her net monthly income before taxes was approximately $7,875. She also suffered a decline in her private retainer and legal aid work after returning to work. [ 69 ] The court referred to Assayag v. Stevens , [1995] B.C.J. No. 39 (January 12, 1996), citing the similar dearth of resources I find present today. Drost, J. concluded at paragraph 44: It seems to me that the first question to decide is whether the wording of subs. 61(3)(

e) allows for the recovery of lost earnings. I believe it does. The definition of “expense” found in Gage Canadian Dictionary includes: “an expending; the laying out of money” and “loss; sacrifice”. [ 70 ] The direct expenses related to the prenatal care in the sum of $2,000 were not challenged. The court allowed Ms. Mehmet’s claim for lost wages as well after taxes. I note that while she hired a locum to mitigate her losses, there was no evidence that she had any other source of income. [ 71 ] The decision of Assayag, supra , involved a couple who have been in a relationship for about four years.

They were married. After the relationship ended, the plaintiff sought compensation for prenatal expenses, among other things. [ 72 ] Ms. Assayag had been employed on a contract basis with Revenue Canada prior to her pregnancy. In that case, the court relied on a plain reading of the Family Relations Act and allowed a lump sum payment relating to the incidental costs of prenatal care and the birth of the child. There is no particular discussion about the lost wages portions or the specific prenatal and birth expenses that were allowed. However, the initial claim of $22,949 was reduced to $4,000.

Again, there was no evidence that she drew employment

insurance benefits - perhaps because she was a contractor and not entitled to them. [ 73 ] In Singh v. Singh , [1996] B.C.J. No. 2048 (June 28, 1996), the petitioner and respondent had been married for slightly over a year. The parties had only cohabited for about three weeks and the child was born after they had separated. In that case, the petitioner had been living in California and had quit her courses to join the respondent. The respondent was unemployed.

The court allowed expenses for maternity clothes, vitamins, infant clothing, furniture, transportation, board and lodging, counselling, air fare and long distance phone calls. Of the $3,328 related to the maternity clothes, vitamins and prenatal expenses, the court allowed $2,500. The applicant had not produced any documentation. This was also the case for the baby’s clothing and furniture, transportation costs and lodging. The court reduced all of the expenses related to baby items because there were no receipts.

The claim for board and lodging was entirely dismissed because they would have been incurred regardless of whether she was married, or whether she had the child. The counselling was dismissed in its entirety. It should be noted that the significant reductions were made because of the lack of receipts or satisfactory evidence to substantiate them. Again, as a student, there was no evidence that she was entitled to or collected employment insurance benefits. [ 74 ] In Suhan v. Lawson , [1997] B.C.J.

No. 2445 , the court dismissed the claims for prenatal expenses and lost wages on the basis of a lack of evidence to support the claim. The applicant had become pregnant while she was dating the respondent. The applicant had been laid off work at the time she was pregnant and was receiving employment insurance benefits. The benefits ran out two months prior to the birth of the child and she was not, therefore, entitled to maternity benefits. At paragraph 18, Rae, J. said this: The claim for compensation for lost wages stands in a somewhat different category.

That is a claim, it seems to me, more like a claim for damages or a claim for spousal support, as opposed to a claim for prenatal expenses, which represents some kind of financial outlay. Although compensation for lost wages was claimed in the Assayag v Stevens case, the court did not specifically deal with that issue, and in any event, the mother in that case was eligible to claim spousal maintenance, and the Applicant here is not a “spouse” as defined by the Act. [ 75 ] I find that J.L.B. is in precisely the same circumstances. She is not a spouse and is not entitled to spousal support.

Unlike the parties in the various cases I have referred to, J.L.B. did have employment income benefits paid to her during the time she went on medical employment insurance through to the birth of her child and thereafter. It was through her own choice that she left her employer. Even if a person who does not qualify as a spouse could apply for lost wages during some period leading up to and immediately following the birth of the child, I find that it must be in such circumstances only as where there are no other sources of income.

The purpose of the legislation is not to make a person whole, but to provide support. The employment income benefits already provide that support. I dismiss J.L.B.’s claim for lost wages. [ 76 ] With respect to the prenatal expenses, there is no evidence before me that the decision to have the services of a doula was anything more than a personal choice. I disallow the claims for the doula expenses. I am satisfied, although there is no proper report from the doctor to this effect, that J.L.B. was required to take a prescription for her morning sickness and allow that claim in the amount of $95.62.

I disallow the claims from Kathy Joy King for acupuncture, herbs, doula, and otherwise because there is no evidence before me that any of the services or items provided were reasonable and necessary as opposed to matters of choice. Similarly, I disallow the claim for prenatal yoga. Again, this is a matter of choice and there is no evidence before me that her doctor or obstetric gynaecologist required her to obtain these services. I allow the claim for the prenatal class in the sum of $80 although not prescribed or urged by her doctors.

It is a reasonable and necessary expense to properly prepare a mother to give birth. C.M.D. shall pay 50% of the prenatal expenses amounting to $175.62, for a total of $87.81. [ 77 ] J.L.B. had a video taken of the ultrasound showing the sex of the child. For reasons that are completely inexplicable, she sent the YouTube film to C.M.D.’s sister. She did not send it to C.M.D. She did not send it to C.M.D.’s parents. She sent it to his sister. It was a mean-spirited, petty thing to do. She had no valid explanation for this action. [ 78 ] Similarly, after C.C.B. was born, J.L.B. did not advise C.M.D.

He found out she had delivered the child, as I said, when he attended court for a Small Claims matter J.L.B. was pursuing against him. Understandably, the R.s, who had no contact with her and did not know where she was, took advantage of the opportunity to effect service upon her of an application to gain contact time. This culminated in an alarming incident for which all of the B.s, R.s and C.M.D. are equally responsible. [ 79 ] In short, the R.s hired a process server to serve J.L.B. at her parent’s home. When the process server attended, she pretended to be delivering flowers.

The B.s were suspicious and claimed that J.L.B. was not available. J.L.B. declined to go to the door because she did not know who the person was and was concerned. This evidence lacked any logic or credibility. J.L.B. testified that she had received a call earlier from J.R. which she saw on the caller ID. She believed that C.M.D. had been served that morning with the protection order that she had obtained and seeing Mr. R.’s number had raised her concerns. J.L.B.’s evidence in this regard was illogical.

I find that she knew or ought to have known the person at the door was likely there to serve her with documents that she at least suspected were related to access to her son. [ 80 ] The B.s then apparently believed they recognized the vehicle that they saw on the street as the R.s. Despite this, Mr. B. felt the need to pursue that vehicle as it drove away to try to get its licence plate number. L.B. then, apparently, got in her vehicle to chase Mr. B. to make sure that he was safe. When she reached the end of the street, she could not see Mr. B., but she could see the R.’s vehicle.

They turned their vehicle across the road to prevent her escape. The R.s, incredibly, thought that J.L.B. was in the vehicle with the baby and was trying to flee without being served. [ 81 ] I do not believe the B.s. I believe that J.L.B. was trying to make an exit without allowing C.M.D. or the R.s to see the child. The evidence that L.B. was chasing Mr. B. out of concern simply does not bear up to scrutiny. That does not excuse the R.’s conduct. I accept that they acted out of emotion and desperation but they ought to have obtained legal advice before taking matters into their own hands as they did.

Their actions were at the least dangerous if not outright threatening. [ 82 ] In the end result, harder feelings and suspicions were further entrenched.

[ 83 ] Since then, J.L.B. has insisted upon supervised visits for C.M.D. and for the R.s She has insisted upon entirely unnecessary terms, such as requiring the R.s to leave their home so that C.M.D. could have a visit with the child where he was staying. She denied this but her insistence that they not be present could result in no other outcome than for them to leave. She makes petty distinctions between when C.M.D. is to have his time with the child and when the R.s are to have their time. She tries to manipulate who will do the supervision and when the supervision will occur.

She controls whether or not the child will have his time with his father. She originally agreed that the Ann Davis Society would conduct the supervised visits. However, when they noted in their reports such observations as the child being tired or hungry as a reason for visits not being successful; and observed other visits that were successful, J.L.B. determined that they were no longer suitable. She expects them to comply with guidelines that are not set out in any order simply because they are rules set by the Society.

However, if the rules do not work to her benefit, she expects flexibility in her favour. [ 84 ] The R.s and C.M.D. were then presented with the prospect of having visits at Interior Community Services in Kamloops. However, there were not many available dates that would accommodate any reasonable schedule. It became difficult and also required J.L.B. to travel to Kamloops for those visits to happen. J.L.B. then organized Dolphin Investigations to supervise the access visits. Understandably, C.M.D. and the R.s were very suspicious of this arrangement. J.L.B. did not offer any information to allay their concerns.

Instead, she felt they ought to have investigated the appropriateness of the facility themselves. [ 85 ] All of this is against the backdrop that supervised access is not something that should be readily condoned by the courts. These are overstimulated environments that are not at all suitable for parents or grandparents to visit their children. It is understandable that, while there were hostilities between the parties and the child was an infant who was still breastfeeding, there had to be some kind of neutral environment where the child could have his contact with this father and grandparents.

However, the degree to which J.L.B. attempted to control how, when and where this would happen was not acceptable. [ 86 ] C.C.B. is now eating regular food and no longer requires his mother to be around for him to be fed. There is no basis for these visits to be supervised in any manner. Every indication is that the R.s are fully capable of caring for a child and that C.M.D. is making every effort, as any new parent would, to learn how to do so as well. He has also had the benefit of helping with the raising of his younger siblings. Parenting in some capacity or another is not entirely foreign to him.

The Ann Davis reports support this. [ 87 ] J.L.B. cross-examined C.M.D. about him wanting to give Ora-jel to C.C.B. when he was teething. J.L.B. is opposed to administering this medication. Going forward, when C.C.B. is in his father’s care, his father will make the day-to-day decisions about C.C.B.’s care. It is to J.L.B.’s benefit that she share with C.M.D. all of the eating, sleeping, behaviour and medical information she has about C.C.B. so that C.M.D. can make every effort to follow the same example in his own house while he is caring for C.C.B..

If J.L.B. fails to do so, then C.M.D. is entitled to make his own decisions. Even so, J.L.B. must understand that C.M.D. is free to create his own routines and such when he has care of his child. [ 88 ] J.L.B. has expressed concern about C.C.B. travelling to Kamloops for the visits. She said he is not sleeping as much and the elevation seems to bother him. If J.L.B. chooses to continue to live on the coast, C.C.B. will continue to have to make the trek to Kamloops for his visits. [ 89 ] However, there will be times when the road conditions are not suitable for travel.

Such an occasion occurred when I ordered Christmas contact time for the grandparents and C.M.D. J.L.B. was to bring C.C.B. to Kamloops and she was watching the travel advisories. Snow storms were expected and she was uncomfortable with the prospect of driving C.C.B. to Kamloops in such conditions. Her decision was entirely reasonable. Because of her conduct up to that point, the R.s and C.M.D. were suspicious of her motives for cancelling the trip. Their position was unreasonable. [ 90 ] Absent a travel advisory, J.L.B. is going to have to make these trips to accommodate C.M.D.’s parenting time.

If there is a travel advisory recommending against travel on any of the accessible routes, C.M.D. must accept that a parenting visit cannot occur. In such an event, C.M.D. will have to advise J.L.B. when he is available to take C.C.B. for a make-up visit and J.L.B. shall have to ensure that the makeup visit occurs. To this point, she has arbitrarily determined when it is convenient for her to do a make-up visit. That must end. [ 91 ] When parenting time happens for C.M.D. and his son in Kamloops, C.C.B. will stay where his father determines he will stay.

Presently, C.M.D. is in what he feels is an unsuitable environment to have a small child. He has two roommates in the house - one is a legal assistant and the other owns a construction company. They are a couple. It is a four bedroom house and the other couple have no children. There is no explanation why C.M.D. does not think he would be able to have C.C.B. in that home but he feels more comfortable having C.C.B. stay at his parent’s place. Ultimately, he plans to move out to his own residence.

It is not financially possible for him at this time. [ 92 ] In the meantime, the R.s have two spare rooms in their home. C.M.D.’s plan is to stay in a room with C.C.B. It would be more suitable for him to have C.C.B. in one room and C.M.D. in another. That is for C.M.D. to determine and I make no order in that regard. [ 93 ] J.L.B. lives in a three bedroom townhouse which she rents. C.C.B. has his own room and his toys. It is obviously a suitable environment for him. He has a daycare he is able to attend while his mother is going to school.

He is young yet and so if she decides to move back to Kamloops, he will adjust very well. [ 94 ] J.L.B. is understandably concerned about C.M.D.’s non-compliance with court orders. When he was charged with assaulting his ex-girlfriend, he was put on terms awaiting trial that prohibited him having contact with her. He contacted her anyway. He was also prohibited, by terms of his probation order, to abstain from consuming alcohol.

While the roadside prohibition he received was overturned as unconstitutional, he was still failing to comply with his probation order when he consumed alcohol at that time. [ 95 ] Additionally, J.L.B. is familiar with C.M.D. driving while he was under his prohibition. He testified that he drove because she urged him to. That may be so, but he was the one who was prohibited from driving and ought not to have been doing so. [ 96 ] J.L.B. also claimed that after she got a protection order against C.M.D., he breached the protection order by attending Ms.

Simpson’s office during what was supposed to be, she says, a visit only for the R.s and C.C.B. C.M.D. said that the judge ordered everyone to go out and arrange for him and his parents to meet C.C.B.

[ 97 ] Similarly, when C.M.D. was ordered to provide financial information to J.L.B., he was lax in doing so. Even at the commencement of this trial, C.M.D. professed that he thought all of the information he produced at the Small Claims payment hearing was suitable for the purposes. This was despite very clear direction about what he was supposed to provide. A subsequent order was made for him to file a properly completed financial statement with all attachments by December 31, which he did not get to J.L.B. until February 3.

His explanation was that everything was in for e-filing and so it was not available until then. He is indifferent to compliance and this must end if he expects co-parenting to work effectively. [ 98 ] C.M.D. is not the only one who has difficulty complying with court orders. J.L.B. manipulates those orders and insists on terms that were not in place. When all parties appeared before Judge Cleaveley on November 28, 2013, arrangements were made for the R.s and C.M.D. to meet with the child. This was during a settlement conference so the recording of the proceedings is not accessible.

J.L.B. made every effort to ensure that visit did not happen. When the parties appeared in front of Judge Dickey, he noted that the meeting of C.M.D.’s family and C.C.B. had not yet occurred, cautioning J.L.B. that she could not continue in this fashion. As I indicated to the parties I would do, I have reviewed the DARS for the only appearance before Judge Dickey which was November 27, 2013. [ 99 ] On that occasion, J.L.B. had refused to speak to counsel for the R.s. Mr. Komori advised the court that both the R.s and C.M.D. had not yet had any access to the child.

Judge Dickey adjourned all matters so J.L.B.’s counsel could be present. Judge Dickey told J.L.B. that the court would consider whether she was a responsible parent in ensuring the other parties had access. He encouraged her to compromise. She proposed Brenda Simpson if she were available that afternoon. Judge Dickey told J.L.B. it was in her best interests to make every effort to ensure that visit happened. Clearly she did not. As it happened, the visit was not going to occur anyway. [ 100 ] J.L.B. is also unwilling to accommodate contact time because she volunteers on Saturdays.

Frankly, her volunteer efforts are secondary to C.C.B. having contact time with his family. [ 101 ] J.L.B. also tried to characterize the first appearance at trial as being delayed because C.M.D. was late. The case was adjourned for lack of court time. J.L.B. was advised that there were three cases ahead of theirs and they were not likely to be heard. The R.s arrived after J.L.B. was advised of this. She could not be mistaken about the reasons for the adjournment. J.L.B. deliberately miscast those reasons to me. [ 102 ] C.M.D. sought unreasonable parenting time at the commencement of the application.

He now seeks shared holidays, long weekends, birthdays and vacations. He also wants shared guardianship and shared responsibilities. In addition, he wants to have C.C.B. overnight for at least two nights per month with pick-up in Hope and drop-off in Merritt. [ 103 ] J.L.B., on the other hand, would like to restrict contact time to supervised contact with Dolphin Investigations. [ 104 ] C.M.D. has not been compliant with his child support obligations.

He was angry when J.L.B. would not tell him about the pregnancy, the birth or the status of the child. [ 105 ] These parties must learn to communicate cooperatively with each other. For instance, C.M.D.’s reasons for refusing to sign a passport to permit C.C.B. to travel to Arizona with his maternal grandparents was manipulative and entirely without foundation. Both parents should be able to travel with C.C.B. at any time so long as the travel plans are provided to the other parent. [ 106 ] C.M.D. has not been compliant with his child support obligations.

While he may not have been aware of when C.C.B. was born, he ought to have been paying child support from the date he did become so aware. Instead, C.M.D. expressed his frustration with J.L.B. by refusing to pay. [ 107 ] C.M.D. has not been providing fulsome financial information. This must also stop. C.M.D. has a financial obligation to support his child whether he gets his parenting time and whether he is in legal proceedings with J.L.B. or not. J.L.B. seeks child support based on an annual income of $70,000 based upon what little information she does have.

It also includes what she anticipates are his performance bonuses. [ 108 ] C.M.D. must understand that a child support order is not optional. He must pay it. J.L.B. has the opportunity to file the child support order with the Family Maintenance Enforcement Program if C.M.D. does not comply with his payments. The end result will be that they will simply take the funds from his employer and from any other sources they find without any consultation with him. He should also be aware that if he is in arrears, he may not receive his driver’s licence when it comes up for renewal.

In short, the courts and the legislators will not tolerate parents failing to pay their child support. [ 109 ] C.M.D. has recently had a change of employment. He is in the car sales business which can fluctuate with the economy. C.M.D. used to work at [omitted for posting]. He started there in January, 2013 and earned $54,000 that year. In 2014, he earned $40,000 at [omitted for posting] and another $20,000 at [omitted for posting] but his full December income had not yet been determined. He expected to make $60,000 in 2015. J.L.B. is suspicious that C.M.D. may be making income from another company.

There is no foundation for this suspicion. [ 110 ] Considering the factors under s. 38, I find the nature of the family violence has been limited to the unpleasantness of the parties yelling at one another, violating each other’s privacy, and C.M.D. pounding on walls in his temper. Notably, C.M.D.’s temper has been in check since the day he moved out of J.L.B.’s home in March, 2013. That addresses the recency factor in that there has been no “violence” exhibited by either party since January, 2013.

There is little evidence for me to determine the frequency of any violence except that it appears this was a volatile relationship. I find that J.L.B. has not proved there were any incidents of physical violence against her outside of one incident where C.M.D. was demonstrating his own drunken behaviour without consideration for the physical impact on J.L.B. The only coercive or controlling behaviour I have noted in this trial has been that of J.L.B.’s.

No violence has ever been directed toward the child by either parent and I am satisfied that appropriate parameters for behaviour can be set up for both parents to avoid the child suffering any physical, psychological or emotional harm. [ 111 ] Considering, then, the factors under s. 37, I am satisfied that C.C.B.’s health and emotional wellbeing is best served by having as much contact time with his father and his father’s family as can be arranged. C.C.B. is too young at this point to consider his views

and it will be some years before he will be attending school, which will make parenting and contact time more difficult. In the meantime, he must be given maximum parenting time with his father. [ 112 ] While C.C.B. has had some adjustment time during the course of the supervised visits, it is clear that even in this sterile and unnatural environment he is becoming attached to his father and his father’s family. There will have to be significant contact time as C.C.B. grows in order to ensure that these valuable relationships are well-preserved. [ 113 ] C.C.B. has, to this point, lived entirely with his mother.

This is understandable while a child is young and requiring breastfeeding. She has, by all evidence, been a good parent to C.C.B., except where she has failed to communicate adequately with C.M.D. about the care and needs of their child.

She has also failed to exercise her duties as a guardian in a responsible fashion by her deliberate and persistent efforts to block C.M.D.’s parenting time or to make it at all manageable. [ 114 ] C.C.B. does continue to need a stable environment but he can also have visits with his father quite easily, including lengthier overnight visits. [ 115 ] Both parents have exhibited behaviours that do not speak well for exercising their parental responsibilities. J.L.B. has been obstructionist in attempting to keep C.M.D. from having contact time with C.C.B.

C.M.D. has not been attentive to smaller details or to the financial needs of C.C.B. However, I am satisfied that C.C.B.’s best interests will be attended to by both parents once they acknowledge and accept their respective responsibilities in a more reasonable manner. [ 116 ] J.L.B. needs to accept that the R.s present as people who are capable of caring for her child with or without C.M.D. being present. The very richness of the experience of Ms.

R.’s life not only as an engineer in a male-dominated world but as a respected employee and as a giving volunteer are extremely valuable influences for C.C.B. as he grows. The ability of the R.s, J.s and extended members of C.M.D.’s family to cooperate fully as a blended family are examples which C.C.B. will learn from and benefit by. [ 117 ] It is a given that C.M.D. and J.L.B. will not have similar home environments for C.C.B. to enjoy. It will be in C.C.B.’s best interests for the parents to cooperate as fully as possible to coordinate a stable

schedule for C.C.B. to enjoy in both homes. However, both parents must also acknowledge and accept that each home will be different and each parent will be entitled to make the appropriate decisions about the raising of the child while that child is in that parent’s care.

ORDERS [ 118 ] I appoint C.M.D. a guardian of the child pursuant to s. 51 of the Family Law Act . [ 119 ] Under s. 40(2) the guardians shall share equally all parental responsibilities for the child, except that each parent shall, while the child is in their care, have the responsibility of making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child. In other words, they must consult with each other on all other matters before decisions are taken. [ 120 ] C.M.D. shall have parenting time with C.C.B. not less than two nights per month.

C.M.D. shall provide J.L.B. notice of the weekend upon which he wishes to exercises his parenting time as soon as he knows his

schedule and, in any event, not less than three weeks before that weekend. The parenting time shall include the Friday night and Saturday night of each weekend. C.M.D. or his designate shall pick up C.C.B. in Hope from J.L.B. or her designate at a time to be agreed between the parties. In the event that the parties cannot agree, that pick-up time shall be 7:00 p.m.

The pick-up point at Hope shall be at the Hunter Creek rest stop. [ 121 ] J.L.B. or her designate shall pick up C.C.B. at the conclusion of the visit at the Britton Creek rest stop near the Coquihalla summit from C.M.D. or his designate at a time to be agreed between the parties. Failing agreement, the pick-up time shall be 7:00 p.m. [ 122 ] In addition, C.M.D. shall advise J.L.B. when he is taking his annual leave as soon as he is aware of those dates, and in any event, not later than three weeks from the scheduled date.

Subject to agreement of the parties, his parenting time with C.C.B. shall commence at 7:00 p.m. on Friday before the commencement of the annual leave until 7:00 p.m. on the Sunday concluding the annual leave. Pick-up and drop-off shall be in accordance with the monthly parenting time. [ 123 ] C.M.D. shall have the following parenting time during the Christmas holidays: On odd-numbered years, he shall have C.C.B. in addition to any usual parenting time, from 7:00 p.m. on December 23 until 7:00 p.m. on December 26, with pick-up and drop-off in accordance with the usual parenting time arrangement.

On even-numbered years, J.L.B. shall have C.C.B. for all of Christmas Eve through Boxing Day, whether it falls on a regularly scheduled parenting time for C.M.D. However, if Christmas falls on a regularly scheduled parenting time for C.M.D., he shall have C.C.B. the following weekend in addition to all other scheduled parenting time. [ 124 ] I dismiss J.L.B.’s application for supervised visits. [ 125 ] I find that C.M.D. is a resident of British Columbia with an annual income in 2013 of $54,000. His child support obligation from September 1, 2013 to December 1, 2013 is $497 per month.

I find that his income for 2014 is $60,000 with a child support obligation of $556 per month. I find that his annual income for 2015 is $60,000 with a child support obligation of $556 per month commencing January 1, 2015. [ 126 ] C.M.D. earns bonuses based upon performance. These will vary from year to year. C.C.B. is entitled to benefit from the bonuses. However, the bonuses are not certain and they are not set in their amount. Therefore, I set C.M.D.’s annual income so that he is assured of the amount he must pay month to month.

When he receives his bonuses, there must be a recalculation to adjust his annual income and he must pay the difference in that child support. [ 127 ] C.M.D. shall provide to J.L.B. his Notice of Assessment not later than June 30 th each year and the recalculation of his income for the purposes of arrears is effective July 1. For instance, if C.M.D. receives a $10,000 bonus in December, 2014, his child support obligation for the prior year must be adjusted upward to $70,000, with a child support obligation of $654 per month. This is an increase of $98 per month.

If C.M.D. does not want to be perpetually in a state of arrears, he should perform that calculation upon receiving the

bonus and pay the funds forthwith to J.L.B. Absent that, it becomes due and payable on the first day of July in each year. [ 128 ] C.M.D. shall pay $87.81 for prenatal expenses, which amount is due and payable immediately. [ 129 ] Each guardian shall cooperate with the other guardian in the provision of passports, consents to travel, and other necessary documents as may be required to allow the child to travel. [ 130 ] C.M.D. shall add C.C.B. to his extended health benefits and provide a copy of all information relating to those benefits to J.L.B.

J.L.B. shall provide to C.M.D. copies of all official documentation relating to C.C.B. including his Care Card number, Social Insurance number and Birth Certificate. [ 131 ] J.L.B. has sought a no contact order. I am not satisfied there is any evidence that supports the necessity for such an order and I dismiss that application. [ 132 ] I find it necessary to make conduct orders to ensure that C.C.B. has the best possible relationship with all of his extended family. [ 133 ] The parties shall (

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

b) 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 (

c) make a real effort to maintain polite, respectful communications with each other, refraining from any negative or hostile criticism, communication or argument in front of the child. [ 134 ] The parties shall not (

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

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

c) blame, criticize or disparage the other parent to the child. [ 135 ] The parties shall 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. [ 136 ] Both parties seek a police enforcement clause. I expect that the parties will conduct themselves going forward in a proper manner. Police enforcement clauses are important to ensure that the parties are complying with the terms of an order for parenting time.

They are, however, very serious and can cause considerable trauma to a child if the parties are engaging in a petty disagreement. I do not see on the evidence that there is any basis for a police enforcement clause at this point. While J.L.B. has not been cooperative with parenting time, I am satisfied that she will comply with this order. Both parties should be aware that either party may apply for financial penalties in the event that the other party breaches the terms of this order without lawful excuse. [ 137 ] J.L.B. has filed for an application to transfer this file to Chilliwack for all purposes.

I am not satisfied that J.L.B. has established any permanent or long term connection with Chilliwack. I dismiss the application to transfer the file. C.M.D. asks that I have him added to the Birth Certificate for the child and to have C.C.B. bear his name. C.M.D. needs to go through the process of providing a copy of this guardianship order to the Department of Vital Statistics to have his name added to the Birth Certificate. He has made no proper application to have C.C.B.’s name changed. I make no order in that regard at this time.

Under s. 3 of the Vital Statistics Act , R.S.B.C. 1996 c. 479, the Department of Vital Statistics must amend the child’s birth registration to include C.M.D. upon him making the proper application and filing the appropriate fee. I also note that the name of the child must be registered by agreement, or, failing agreement, in a prescribed form set out in s. 4. It behoves the parties to attempt to agree on what the child’s name should be. Failing that, C.M.D. may make an application under s. 4.1 to change the child’s name.

He has not made that application. [ 138 ] I remain seized of all applications on this file for the foreseeable future. _________________________ S.D. Frame Provincial Court Judge