K.L.T. v. F.M., 2021 BCPC 39

Citation: K.L.T. v. F.M. 2021 BCPC 39 Date: 20210301 File No: 16551 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: K.L.T. APPLICANT AND: F.M. RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.J. BROWN

Counsel for K.L.T., appearing by teleconference: A. Berrie Counsel for F.M., appearing by teleconference: K. Ashton Place of Hearing: Abbotsford, B.C. Dates of Hearing: November 25, 26, 27, 2020 and January 19, 20, 2021 Date of Judgment: March 1, 2021 Introduction [ 1 ] THE COURT: K.L.T. and F.M. are the parents of two children: K.M., who is now seven and Z.M. who is now five. These parents lived together since September 1, 2011 and they married on [omitted for publication]. F.M. emigrated from Morocco and he is Muslim. In 2014, K.L.T. converted to the Islamic faith and the children were first raised as Muslims.

K.L.T. has since returned to the Christian faith. [ 2 ] The parties separated on January 4th, 2019 and F.M. left the family home on February 6, 2019.

By an agreement made March 8th, 2019 and filed in court on May 3rd, 2019, F.M. had parenting time every Saturday from 8:00 a.m. to 3:00 p.m. and every Monday after school until Wednesday morning before school. [ 3 ] A second child support agreement was filed May 3rd, 2019 requiring F.M. to pay $676 per month in child support. [ 4 ] By an interim consent order granted September 19th, 2019 both parties were confirmed guardians of the children, sharing equally all parental responsibilities. Conduct orders and a non-removal clause were granted.

F.M. has been paying child support roughly in accordance with the Guidelines . [ 5 ] I am pleased that the parties were able to come to a consent order on December 18th, 2020 concerning all holidays and the summer break. The father was granted parenting time for the Muslim holidays al-Adha and Eid al-Fitr while the mother secured the first half of the winter school break to celebrate Christmas. [ 6 ] F.M. now seeks equal parenting time with the children on a two-two-five rotation with the parents rotating the weekends.

In the words of F.M., he has not been able to "breathe" under the current parenting arrangement and he wants the opportunity to have more meaningful time with the children. K.L.T. acknowledges that F.M. should have more time with the children, but it should be every second week from Friday until Wednesday. This

schedule accommodates his time at the mosque on Fridays and has fewer transitions. K.L.T. sees F.M. as very controlling and at times abusive. [ 7 ] Both parents deeply care for their children; however, a great deal of tension has surfaced before and after the parties' separation. Notwithstanding conduct orders, they communicate poorly and often criticize one another. In the past, there have been allegations of domestic violence as against F.M. [ 8 ] Although the children have the benefit of both the Muslim and Christian faiths, this advantage has only turned into another wedge between the parents.

K.L.T. believes that F.M. is too rigid in his application of Muslim values, and he even attempted to prevent the mother and children from celebrating Christmas in Calgary in 2019. F.M. claims that he now has a more accommodating perspective on the religious differences, and he alleges that K.L.T. misses no chance to undermine his parenting. [ 9 ] K.L.T. has been the primary caregiver for the children and she is a [omitted for publication] who lives in the Abbotsford area. F.M. is a mental health community worker with the [omitted for publication] and he too lives and works in the Abbotsford area.

Despite the geographic proximity of the parties, it is their differences in parenting style and culture which continue to define their dysfunctional form of co-parenting. [ 10 ] I will address the major themes which emerged during the trial; I am not going to recite the evidence word for word. As always, I will consider these various topics with only the best interests of the children in mind. The Parental Roles [ 11 ] I am satisfied that K.L.T. was the primary caregiver for K.M. and Z.M. both before and after the separation. She has also taken the lead concerning the children's schooling as discussed below.

Nevertheless, F.M. has had a major role in the children's lives. [ 12 ] K.L.T. took one year of maternity leave when each of the children was born. She nursed them both. Following the physical separation on February 6th, 2019, K.L.T. remained in the family home. Under the agreement made March 8th, 2019 K.L.T. is responsible for the children each week from Wednesday morning until Monday after school, except that F.M. has a Saturday visit from 8:00 a.m. to 3:00 p.m.

F.M. felt manipulated into signing this agreement, but it has been filed as an order and the parties have followed it since its inception. [ 13 ] No significant issues have been raised about K.L.T.'s ability to parent the children. In 2020, K.L.T. had the children for much of the time as she was off work from March to July during the pandemic. [ 14 ] Prior to the separation, F.M. was able to care for the children in the day and take them to school or daycare because of his employment hours. Since December of 2015 he has worked for the [omitted for publication].

He first worked in East Vancouver, and as of October 25, 2016 he worked evening shifts at a halfway house in Abbotsford. He continued to be responsible for the children in the day, taking them to school or daycare when required. [ 15 ] When F.M. physically moved out of the family home on February 6th, 2019, he moved to a basement suite and still cared for the children in the day when they were not in school or daycare. As of May 1st, 2019 F.M. worked fulltime on a dayshift which ends at 3:00 p.m. He now works for [omitted for publication] to assist criminal offenders with a release plan.

[ 16 ] When F.M. signed the March 8th, 2019 agreement it was clear he would only have quality parenting time Monday and Tuesday evenings and Saturday from 8:00 until 3:00 p.m. As previously alluded to, F.M. felt K.L.T. manipulated him into signing this agreement on the pretence that there would be a reconciliation. [ 17 ] F.M. lives in a small basement suite but in my view it is adequate for children of this age. His landlord testified that F.M. is good with the children and he takes them swimming and biking. I was glad to hear that both the landlord and another witness, Mr.

Lamont, stated that K.M. and Z.M. were great kids and well-behaved. F.M.'s employer testified that he has not observed F.M. having personality conflicts with others. [ 18 ] F.M. recognizes that a week on/week off arrangement would be too difficult for the young children but he wants more quality time with them. On Mondays and Tuesdays, he sees the children after school and has dinner with them and helps them with homework. His waking time with them is limited.

Cultural Clashes [ 19 ] F.M. was raised in Morocco as a Muslim, and during the marriage there was an agreement that the children would have Muslim names and be raised in that faith. K.L.T. converted from the Christian faith to the Islamic faith in 2014. Following separation, K.L.T. returned to her Christian faith and traditions. [ 20 ] Despite the fact that the Islam and Christian faiths are both Abrahamic religions, there is now great tension between the parties as to how to involve the children in these faiths without offending the other party.

From F.M.'s perspective, it is important that the children be involved in Muslim traditions and that they attend the mosque on Fridays. The holiday Eid al-Fitr marks the end of Ramadan and the beginning of a feast. F.M. testified that he does not allow the children to see a lamb being slaughtered and they pick up the meat already butchered. He does believe that women should dress modestly, but he denies being as controlling as the mother suggests.

F.M. was understandably upset when his children missed both Muslim holidays al-Adha and Eid al-Fitr in 2020. [ 21 ] From K.L.T.'s perspective, F.M. has been far too controlling of her and the children. He used the Muslim faith and the threat of a divorce to coerce her. After K.M. was born, K.L.T. said that F.M. became far more strict and unaccommodating. For example, she says her Islamic wedding was a blend of cultures and some alcohol was consumed. After K.M. was born, F.M. prohibited any form of alcohol. He also stopped K.L.T. from socializing with certain friends.

K.L.T. testified that as the marriage progressed, F.M. would threaten divorce if she did not follow Muslim customs. She could no longer wear tank tops or North American style bathing suits. [ 22 ] Following separation, F.M. often did not approve of what K.M. was wearing so he had her change and he did not return K.M.'s clothes. F.M. denies that he did not return K.M.'s clothes, but he clearly has a much more modest standard of attire for K.M.

Apparently K.M. is afraid to wear some of her clothes to her father's home for fear of those clothes going missing. [ 23 ] K.L.T. understands the need to avoid pork but she no longer adheres to the Halal meat diet that was required during the marriage. K.L.T. also understands the need for the children to attend the mosque on Fridays, but she is concerned that men and women do not mix at the mosque and K.M. is to be only in the downstairs

section of the mosque. Overall, K.L.T. has become so troubled by this tension between the parties that she has consulted with a psychologist to attempt to co-parent in a healthy way. [ 24 ] The most vivid example of the culture clash was during Christmas of 2019. F.M. was strongly opposed to K.L.T. taking the children to Calgary for Christmas to visit grandparents. On November 18, 2019 Judge Ritchie ordered that the mother be able to travel with the children to Calgary for Christmas. F.M. now realizes he should have seen the bigger picture and that it was good for the children to see family in Calgary.

However, K.L.T. indicates that F.M.'s controlling behaviour about Christian holidays is entrenched. During the marriage, F.M. did not want Christmas songs to be heard. He also ignored North American holidays like Mother's Day and Thanksgiving Day because they were not celebrated in Morocco. [ 25 ] More recently, in February of 2020, F.M. said that the children were not happy going to a church even though that is where K.M.'s Sparks meetings were held. K.L.T. now takes the children to a Christian church and she says F.M. has told the children to refuse to participate in such activities.

The children do not want their mother telling their father about these Christian activities. F.M. asserts that he has told the children to listen to their mother concerning church. Communication [ 26 ] It is an understatement to say that the parties do not communicate well. F.M. suggests that the parties' communication has improved but the emails and text messages I have reviewed leave a lot to be desired. In F.M.'s messages he says things like, "How retarded is that?", or he claims K.L.T. is hung over.

K.L.T. indicates that she does not ever know "which F. she will get". [ 27 ] However, K.L.T. herself refers to F.M. as "Gaza Strip", meaning he engages in conflict which never ends. She also says that F.M. is a "shit parent" or "a retard". [ 28 ] The inability to communicate properly has an effect on the children. For example, one recent summer K.L.T. took the children to Penticton without giving F.M. much notice. He appears to have retaliated by not passing along K.M.'s medication. When F.M. then took his summer holiday with the children to Osoyoos he kept the children for 19 days.

On another occasion, F.M. also took the children to Chilliwack Lake at a time when K.L.T. claimed K.M. had a birthday party to attend. [ 29 ] During a Valentine's Day dance in 2020, the parties again displayed poor communication. K.L.T. was nice enough to invite F.M. to the dance during her parenting time. When the dance was over, F.M. said that K.M. wanted to drive home with him. This resulted in a brief altercation and K.M. ended up going home with her mother.

On another occasion during F.M.'s parenting time, K.L.T. decided to drive her mother to a Save-On store where F.M. was apparently shopping with the children. F.M. is not terribly fond of the grandmother because he felt she helped to pressure him to leave the family home. This Save-On incident only exacerbated tensions between the parties.

Daycare and Schooling [30] The failure of the parties to properly communicate is perhaps best exemplified by the daycare arrangements for the children.K.L.T. was the one who usually arranged the daycare for the children. In 2019, Z.M. was originally in [omitted for publication], butK.L.T. arranged for him to attend [omitted for publication] in September. She said she gave F.M. the opportunity to check out thisdaycare but he denies this proposition.

Ultimately, he did not feel [omitted for publication] had enough children in Z.M.'s age group. [31] In any event, in August of 2019 K.L.T. gave notice to the [omitted for publication] and she believed both parents would bebringing Z.M. to the [omitted for publication]. The parties could not resolve their dispute, so for some time K.L.T. took Z.M. to the[omitted for publication] on Mondays, Thursdays and Fridays while F.M. took Z.M. to the [omitted for publication] on Tuesdays andWednesdays.

This was a ridiculous situation and did not serve Z.M.'s best interests. [32] In May of 2020, F.M. did take the children to a lake even though K.M. had two virtual school meetings that day. I am satisfied,based on all the evidence, that K.L.T. is better apprised of the children's school work and school activities. Safety Issues [33] K.L.T. was troubled that F.M. had allowed the children to ride bikes without helmets. F.M. stated this happened in a closed-offschool area. K.L.T. was concerned that F.M. was not wearing a life jacket when the children were at a lake in an inflatable canoe.

F.M.explained that he was not wearing a life jacket because he was standing in shallow water, pushing the canoe around. K.L.T. was verydistressed to learn that F.M. had recently left the children alone at a hair salon. F.M. stated that this happened only for a few minutes andthe staff was supervising the children. Domestic Violence [34] F.M. was charged but not convicted of assaulting K.L.T. in May of 2015. He was bound by a no contact order in criminal court.The Ministry was briefly involved. F.M. maintained that the parties hit one another but he did hit K.L.T. behind the ears.

He took somecounselling in 2015 and an Abby Dads awareness course in November 2019. K.L.T. testified that F.M. hit her head so hard her ears wereringing. K.M. was present. K.M.’s presence was denied, at least initially, by F.M. [35] There are also allegations that F.M. hit K.L.T. when she was pregnant in Hawaii. This was denied by F.M. In 2016 in Seattle, itwas alleged that F.M. punched K.L.T. during a dispute about a McDonald's order. F.M. testified that there was some mutual hitting.

Current Ministry Allegations [36] In November of 2020, F.M. was contacted by the Ministry about an allegation that he kicked Z.M. and that he was walking witha knife in front of the children. F.M. testified that he was roughhousing with the children in the kitchen. The children were interviewed bythe Ministry and the Ministry had no protection concerns. F.M. was very concerned that K.L.T. was now putting ideas in the children'sheads so they would not want to be with him. K.L.T. said that she was not even aware of the Ministry report or the investigation.

The Children [37] K.M. has a lot of energy and her mother is worried she may have ADHD. K.M. is involved with Sparks and she likes biking andhiking with her father. K.M. has some struggles in school. Z.M. is a good child but he has displayed aggression. He recently punchedanother child. What parenting arrangement is in the children's best interest? [38] It is clear that both parents want what is best for the children but they have very different perspectives on how to achieve this.Their communication at times is abysmal and they both must take some responsibility for that problem.

As I have already indicated, theirpoor communication has repercussions for the children. [39] F.M. seeks a two-two-five rotation and he points out that the current arrangement was actually meant to be reviewed in April of2019 even though the agreement was not filed in court until May 3rd, 2019. He wants to be a more involved father beyond Monday andTuesday evenings and a Saturday visit. [40] K.L.T. counters with a proposal that gives F.M. parenting time every second week from Friday after school until Wednesdaymorning before school.

This is considerably better than an every second weekend arrangement and has few transitions. K.L.T. remainsconcerned about F.M.'s controlling behaviour and his past acts of domestic violence. [41] I am governed only by the best interests of K.M. and Z.M. as defined in s. 37 of the Family Law Act. That

section requires aconsideration of the children's health and emotional wellbeing, their views (although they are very young in this case) and the strength ofthe relationships between the children, the parents and others. Other important factors include the history of the children's care, the needfor stability and the abilities of the parents.

The impact of family violence must be assessed, and I must carefully evaluate arrangementsthat require cooperation between the guardians. [42] As indicated earlier, K.L.T. has been the children's primary caregiver although F.M. cared for the children during weekdays priorto separation. Based on the evidence, K.L.T. has a better handle on matters such as the children's schooling. [43] The case of North v. North, 2014 BCSC 1591 , 2014 B.C.S.C. 1591, discusses the importance of the status quo inparenting arrangements.

While parenting time with each parent often does change over time, courts have recognized weight is to be givento a status quo arrangement, particularly where the status quo has created a stable and secure environment for the children. [44] K.M. and Z.M. have a strong bond with each parent although there may be occasions when the children are more timid with their

father. Z.M. appeared somewhat wary of his father when they were roughhousing, and K.M. has been concerned about her attire when at her father's home. Nevertheless, F.M. has a good home for the children and, by most accounts, he engages in healthy activities with the children like hiking, swimming and biking. [ 45 ] In my view, both F.M. and K.L.T. are capable parents. K.L.T. magnified some safety concerns with the father but I found those concerns not to be hugely significant.

I recognize that F.M. roughhouses with the children and he has a looser safety net than the mother, but the Ministry had no protection concerns with him. [ 46 ] I remain concerned about how the parties communicate and I do share some of the mother's concerns about F.M.'s controlling nature when it comes to religious and cultural matters. The court decision allowing the children to celebrate Christmas in Calgary may not have fully opened F.M.'s eyes to the problem. Moreover, the domestic violence concerns are historical, but I still see a power imbalance here.

During the marriage, F.M. wanted things his way or else he threatened divorce. The 2015 assault allegation did not result in a conviction but I accept that there were times when his temper took over. [ 47 ] I find that F.M. is less prone to personality conflict now but K.L.T. remains in the more vulnerable position. She has lashed back in some text and email exchanges. [ 48 ] I hearken back to the ridiculous situation when Z.M. was enrolled in two daycares at the same time. Equal co-parenting is not possible with these parents.

In my view, the primary caregiver should continue to be K.L.T. but F.M. requires more quality time with the children. [ 49 ] In conclusion, F.M. is entitled to more quality time with the children but not at great expense to the status quo which has been working for the youngsters. I have decided that a Friday to Wednesday block of time with the father every two weeks provides the necessary balance. F.M. will have time with the children at the mosque on Fridays, a weekend for activities and two school nights.

There is at least an eight-day gap between the father's parenting time so the children need a Monday visit in the alternate weeks. [ 50 ] I am not going to tinker with the guardianship order granted September 19th, 2019; however, I warn the parties that if the court is required to address future disputes about guardianship responsibilities, a different decision-making mechanism may be required. I do note that the biggest issue here has been parenting time during the school months, so I expect that the parents can manage with the current conduct orders and sharing of parental responsibilities.

I was pleased that the parties came to a consent order regarding holidays. [ 51 ] Insofar as child support is concerned, F.M. has been voluntarily paying $750 per month for June and July of 2020. He paid $758 per month as of August 1st, 2020. His 2019 income was $49,400 less union dues of $962.09, leaving a Guideline income of $48,437. The sum of $758 is the Guideline amount for two children and, in my view, adjusting the child support on June 1st of each year is acceptable. I do not have enough evidence regarding any dispute over daycare costs.

Final Order [ 52 ] Upon the court being advised, the name and birth date of each child is as follows: K.M. born [omitted for publication] and Z.M. born [omitted for publication]. [ 53 ] The parenting time agreement made March 8th, 2019 and filed May 3rd, 2019 is varied as follows: During the school year, F.M. will have parenting time with the children as follows: (

a) Every second week from Friday after school until Wednesday before school; (

b) In the alternating weeks, Mondays from after school until 8:00 p.m. or such other time as the parties agree; (

c) Such other times as agreed upon by the parties in writing. K.L.T. will have the majority of the parenting time with the children. [ 54 ] The child support agreement made March 15th, 2019 and filed May 3rd, 2019 is varied as follows: F.M. is found to be a resident of British Columbia and is found to have a Guideline annual income of $48,437.

F.M. will pay to K.L.T. the sum of $758 per month for the support of the children commencing on June 1st, 2020 and continuing on the first day of each month thereafter for so long as the children are eligible for child support under the Family Law Act or until further order. There are no arrears of basic child support. [ 55 ] For so long as the children are eligible to receive child support, the parties will exchange: (

a) Copies of their respective income tax returns for the previous year, including all attachments, no later than May 15th of each year, and (

b) Copies of any Notice of Assessment or Re-Assessment provided to them by the Canada Revenue Agency immediately upon receipt. [ 56 ] Under s. 222 of the Family Law Act , upon exchange of the income tax returns and Notices of Assessment, the parties are required to discuss by text or email any material change in circumstances which may warrant a change in the amount of child support payable. Any agreement to change the support payable will be set out in a consent order and filed with the court. (ORAL REASONS FOR JUDGMENT CONCLUDED)