C.E.C. v. C.N.C. Date:, 2013 BCPC 401

Citation: C.E.C. v. C.N.C. Date: 20131022 2013 BCPC 0401 File No: 16808 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C. E. C. APPLICANT AND: C. N. C. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. F. M. JACKSON Counsel for the Applicant: I. Lawson Counsel for the Respondent: C. MacEachern Place of Hearing: Smithers , B.C.

Date of Hearing: October 17, 2013 Date of Judgment: October 22, 2013 Background [ 1 ] The parties entered a relationship in 1994. Two children were born in the relationship, STC born [omitted for publishing] and BTC born [omitted for publishing]. [ 2 ] The parties separated in April 2013 and starting in August 2013 brought competing applications concerning guardianship, parenting time, parenting responsibilities and child maintenance. [ 3 ] The parties are in agreement on an interim basis on the following:

a) they should be joint guardians

b) the older child STC shall decide for himself with which parent he shall reside

c) they shall ensure BTC attends all scheduled hockey activities and all other mutually agreed extracurricular activities. Issues [ 4 ] The parties disagree on several other points. CNC wants a court ordered full views of the child report pursuant to s211 of the Family Law Act .

CEC wishes to bring the matter to trial as quickly as possible either without waiting for a court ordered s211 report or to have a private report prepared by agreement. [ 5 ] Serendipitously, the court received an email from Family Justice Services after this hearing that indicated court ordered views of the child reports have a wait time of approximately 2 months and full s211 reports have a wait time of approximately 12 months.

Accordingly, the court concludes that to order the productions of an s211 report before the hearing of the matter would be too great a delay and declines to make that order. [ 6 ] CNC also seeks an order that there be a family case conference immediately after the completion of the s211 report. Based on the decision immediately above that application is also dismissed. [ 7 ] As well, CNC also seeks an order that there be a family case conference in May or June 2014 to discuss summer parenting times. CEC hopes to have the trial on the merits in April or May to determine all issues.

Accordingly, a family case conference may be unnecessary. Similarly, the parties can either negotiate directly or later apply to

schedule a family case conference if necessary. Therefore, that application is dismissed. [ 8 ] CNC seeks the following order, “Unless the mother moves back to Houston, the children will reside in Houston with the father until the conclusion of the school year in June 2014.” It is CEC’s position that is acceptable but that ultimately, BTC should live with her in Smithers for the 2014-5 school year and alternate between parental residences thereafter. Accordingly, the court is satisfied that BTC should live in Houston until the end of the 2013-4 school year and the issues of residence and relocation should be left to the final hearing. Parenting Time [ 9 ] CEC lives in Smithers and her work

schedule makes parenting time with BTC after school Monday through Thursday impossible. CNC’s work

schedule is 8:30 a.m. to 5:00 p.m. Monday through Friday. It was on that basis that an interim-interim without prejudice consent order was made August 29 th , 2013. That order gave CEC parenting time on the first three of every four weekends from 4:00 p.m. Friday until the following Sunday at 8:00 p.m. [ 10 ] CNC wishes to maintain that schedule. CEC wishes to have all weekends with BTC. Through counsel, CNC raised the familiar argument that CEC has the “quality” time while CNC has the daily routine time including large periods when the children are in school or asleep.

In rebuttal counsel for CEC countered that proportions of her “quality “time were debased by driving to hockey tournament or taking BTC to hockey practices. The court does not agree with those arguments for two reasons. First, shared experience, whether recreation or routine is the glue of family bonds. Second, the consideration for the court is the best interests of the children, not the parent’s view of the quality of the parenting time.

Therefore, the court must balance the need to maximize the children’s relationship with both parents. [ 11 ] The court believes that CEC’s parenting time should, if possible be increased. However, the court is satisfied that the non- instructional days, including Christmas, Easter and the Spring break, if allocated to her, provide the maximum reasonable expansion in the current situation where she resides in Smithers and BTC and STC reside in Houston.

By the court’s calculations, if CEC has the non- instructional days suggested in CNC’s notice of motion dated October 10 th , 2013, she would have 9/30 days in November, 13/31 in

December, 12/31 in January, 9/28 in February, 15 of 31 in March and 10 of 30 in April. The court, therefore, sets CEC’s parenting time to be the current three of every four weekends plus all non-instructional days with some minor exceptions as agreed at this hearing. [ 12 ] There is a slight variation to the division of the Christmas school break suggested by CNC. As CEC traditionally hosts a large Christmas Eve supper, she should not have to return the children to CNC until 11:00 p.m. on December 24 th . [ 13 ] CNC seeks child maintenance for the two children.

Through counsel, CEC indicated she wished the decision deferred until later when she had all her financial records. CNC’s counsel urged the court to impute annual income to CEC in the amount of $53,700 based on what he suggested was her last years income. He also requested that the child maintenance be made retroactive to April 2013 as well as medication expenses of $18 per month for STC both retroactive and henceforward. [ 14 ] CEC indicated that child maintenance is not really in dispute nor is the amount of income suggested for last year.

However, she wished the decision left until she had her financial data as retroactive adjustments can be made then. Conversely, her counsel opposed retroactive maintenance at this time as this is only an interim hearing and the notice requirements have not been met. The court agrees on the issue of retroactive maintenance and leaves the decision to the hearing judge. [ 15 ] However, the court is satisfied that there is sufficient evidence to impute income in the amount of $53,700 to CEC based on the affidavit of CNC.

She shall pay child maintenance commencing November 1 st , 2013 in the amount of $815 each month until further order of the court. The court leaves the determination of extraordinary expenses to the hearing. Decision [ 16 ] The court makes the following interim order:

a) The parties are joint guardians of the children STC and BTC;

b) The children shall reside in Houston and attend school in Houston until further order of the court;

c) CEC shall have parenting time with the children as follows: 1) For the first three of every four weekends as commenced September 13 th , 2013 until further order of the court or written agreement of the parties; 2) All non-instructional days including statutory holidays until the end of the 2013-4 school year commencing at 4:00 p.m. if the last instructional day is a Wednesday or Thursday and ending at 7:00 p.m. if the non-instructional day is a Monday, except:

i) CEC’s parenting time ends at 7:00 p.m. November 10 th and the children shall spend Remembrance Day with CNC and ii) CEC’s parenting time ends at 7:00 p.m. Easter Sunday and the Children shall spend Easter Monday with CNC and iii) CEC’s parenting time ends at 11:00 p.m. Christmas Eve and the children shall spend from that time until 9:00 a.m. December 30 th with CNC;

d) The parties shall ensure BTC attends all scheduled hockey activities and all other mutually agreed extracurricular activities during their parenting time;

e) CEC shall pay child maintenance to CNC in the amount of $815 on the first of each month commencing November 1 st , 2013 until further order of the court. ______________________ W. F. M. Jackson Provincial Court Judge