J.R.D. v. C.T.(1) Date:, 2013 BCPC 409

Citation: J.R.D. v. C.T.

(1) Date: 20130328 2013 BCPC 0409 File No: 16865 Registry: Terrace IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: J. R. D. APPLICANT AND: C. T.

(1) RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. F. M. JACKSON Appearing on their own behalf: J.R.D. Appearing on their own behalf: C.T.

(1) Place of Hearing: Terrace , B.C.

Date of Hearing: March 21, 2013 Date of Judgment: March 28, 2013 Background [ 1 ] The parties are JRD and CT(1). They started living together in 2006. Their child, AMD was born [omitted for publishing] . The parties first separated in October 2009 and this file was commenced shortly thereafter. There was a without prejudice Order made Jan. 21 st , 2010 by Judge Birnie. Amongst other things it granted joint guardianship of the child to both parents. [ 2 ] By consent, that Order was cancelled and replaced by another interim without prejudice Order of Judge Neal on June 18 th , 2010.

In that Order, custody and access were specifically not determined but joint guardianship continued. On October 6 th , 2010 after a hearing Judge Struyk made an Interim Order that CT(1) would have sole custody of the child with specified access to JRD who apparently was residing in Grand Forks.

In support of that Order was an Order under s38(1)b of the Family Relations Act authorizing any peace officer who had reasonable grounds to believe that JRD had failed to return the child, to apprehend the child and return her to her mother. [ 3 ] On December 15th, 2010 there was an Interim Consent Order imputing levels of income to each parent and ordering JRD to pay $98 per month in child maintenance on the basis that “the parties agreeing that custody is shared.” That Order was cancelled by a Final Order dated June 29 th , 2011 that fixed the amount of maintenance and child care costs to be paid by JRD. [ 4 ] There was a Consent Order before Judge Krantz dated October 27 th , 2011 and filed December 6 th 2011 which ordered joint custody, access and guardianship.

It further fixed child maintenance at $250 per month plus $200 per month for child care payable by JRD until daycare costs ended. At that time the child maintenance payable was to be reduced to $250 per month. [ 5 ] The parties then reconciled in May 2012. They lived together until December 15 th , 2012. There are allegations of assault by JRD upon CT(1) on that date.

That charge is still before the criminal courts but there is a bail condition restricting JRD’s contact with CT(1) to be only through emails or her father CT(2) to arrange access to the child. [ 6 ] On December 18 th , 2012, CT(1) applied to the court for a restraining order against JRD. She also applied for spousal maintenance. Finally, she applied for sole custody, a variation of the child maintenance and supervised access to the child’s father. [ 7 ] On December 21 st , 2012 JRD filed a Reply seeking sole custody with access to the mother CT(1).

Amongst his grounds to oppose CT(1)’s application for sole custody, JRD stated: 1) “Consent Order already in place and has worked well for several months”, 2) that he was a good father and had been a big part of her (AMD’

s) life, 3) that CT(1) was attempting to give him minimal access. [ 8 ] On December 27 th , 2012 a Consent Order was made sharing time with the child equally between the parents on an alternating weekly basis. As well, the parent not having the child that week also will have “access” to the child from 5:00 p.m. Wednesday until the child is either returned to school or the other parent the next day. This Order is almost identical to the Consent signed by the parties on October 25 th , 2011 as the basis for the Consent Order filed December 6 th , 2011.

Both parties had filed affidavits supporting their counter applications. Evidence [ 9 ] As the earlier party to apply CT(1) testified first. She said that the parties had separated on December 15 th , 2012 after JRD had assaulted her. She wanted custody and a restraining order because she “was worried” about their daughter’s safety. She candidly said that “she hadn’t seen it (anger) towards AMD from JRD but that he had lots of anger and would yell until he turned red in the face. [ 10 ] She referred to the police report wherein JRD had provided a statement in which he said that he was so drunk that night that he

didn’t remember what happened. [ 11 ] She continued that her fears for AMD were also based on their daughter walking to her father’s residence after kindergarten with only a 9 or 10 year old as the chaperon of the group. As well AMD had told her about firing a handgun with her father but she didn’t know if it was a BB gun, a pellet gun or a firearm. Regardless, she was concerned that their daughter didn’t have eye or ear protection. [ 12 ] CT(1) also testified that JRD had harassed her by email. In one he had called her a “deadbeat” but that he later apologized.

In the other he said that she was going to get it in court. She had reported these incidents to the bail supervisor. [ 13 ] Fairly, she abandoned her claim for spousal maintenance near the start of her testimony. She indicated that she was going to school studying the culinary arts and had finished first in the culinary challenge and was going to the provincial competition. She is putting herself through school with student loans and by working in the campus bookstore and with the school catering program. This started three weeks ago and she had worked approximately thirty hours at $15/hr.

She testified that she and AMD are staying at her parents but that she is paying rent. [ 14 ] She described her relationship with AMD as good. She mentioned playing with her after school, taking her out on weekends and the good relationship between AMD and AMD’s maternal grandparents.

CT(1) added that for AMD’s recent birthday she had been given educational toys. [ 15 ] Concerning her leisure time, CT(1) indicated that she used to party on weekends but since December 15 th , 2012 she had only gone out twice with her girlfriends and was taking the Responsible Driving Course to regain her driver’s licence. [ 16 ] In cross-examination she was questioned about her lifestyle between the separation in 2009 and the reconciliation in 2012. She admitted to having a series of boyfriends. She admitted several of them were involved in drugs and that she was not a “stable” person during that time frame.

However, she insisted that whenever AMD was with her she was “stable”. Specifically she denied knowing that one of the boyfriends, JJ, was selling drugs until after she moved in with him. She also denied that AMD slept in the same bed with her and RC. She explained that AMD slept in the same room but not in the same bed. [ 17 ] In cross-examination she also admitted to being fired from [omitted for publishing] . No date of this incident was provided but in the file is an affidavit of JRD filed Sept. 15 th , 2011 that indicated that the termination occurred in August 2011.

CT(1) also testified that she had been fired from the [omitted for publishing] , but was rehired and quit to go to school. [ 18 ] JRD suggested that she had stayed out all night on June 21, July 20, Sept 21 and Dec 14, 2012. She responded that she stayed at a girlfriend’s June 21, returned home at 1:30 a.m. on July 21 st and denied going out on Sept 21 st . [ 19 ] She admitted there had been an agreement that she would be home by midnight Dec 14 th but that she returned at 6:00 a.m. December 15 th .

When questioned about agreeing to change her cell phone number because of numerous calls in the middle of the night she responded that it was changed because JRD was jealous. [ 20 ] She was cross-examined as to arrangements made for March 9 th , 2013 for her to have AMD out of turn so JRD could work. It was suggested to her that she had not advised her parents about this. She denied that and indicated that she worked late, stayed at a friend’s overnight and that her parents were aware of this arrangement. [ 21 ] JRD testified that CT(1) was irresponsible.

He admitted that both he and CT(1) had been involved in drugs together and were out of control. He added that even during that time he had well provided the family with material things. He said that part of the reason for the separation in 2009 had been a “binge” that CT(1) had gone on while he was working in Grand Forks during which she spent thousands of dollars. [ 22 ] JRD continued by saying that at the present time CT(1)’ behaviour was being controlled by her parents, with whom she was

living. He added that he believed that CT(1) had not changed and would soon revert to “partying and drug use” which would affect their daughter. [ 23 ] He added that he had undergone a 14 day regime of treatment by a Chinese doctor in 2009 and had completely changed. He now had “inner peace”, exercised regularly and had advanced in the construction field to be a supervisor. He had organized charity works for the [omitted for publishing] .

He indicated that he was now an assistant supervisor with the [omitted for publishing] earning $55,000 per year. [ 24 ] Concerning his relationship with AMD, he testified that he enrolled her in Adventure Camp, bought her a drum set and an electric guitar. He had also enrolled her in the book and bannock club, dance lessons, ballet lessons in the upcoming fall, soccer camp and sports camp. He continued that he regularly jogs while AMD accompanies him on her bike. He also has helped her learn arithmetic and geography.

In summation, he stated that he believes in keeping the child busy to keep her out of trouble. [ 25 ] JRD indicated that if he had sole custody of AMD he would involve CT(1) and her parents in the life of the child. When asked about his own parents he indicated that his mother and stepfather in 2009 had sided with CT(1).

He continued that he normally didn’t talk to them but that he had arranged with his mother for her to visit with AMD during the 2013 Spring Break but that CT(1) had ruined the plan. [ 26 ] In relation to CT(1)’s ability to care for AMD, JRD stated that she had two years to prove that she had abandoned her lifestyle of “drugs and promiscuity.” He asserted that during the attempted reconciliation in 2012 she had not lived up to their agreement.

The agreement was that she would go to school, quit “partying” and get a new cell phone to end the numerous calls for her in the middle of the night. [ 27 ] He went on to say that she had continued to “flirt” with other men in texts. She had gone partying on June 21, July 20, September 21 and December 14 th . He believed that she had used him to solve her problem of being in arrears of her rent before May 2012.

He felt this was corroborated by the fact that she didn’t move her furniture in with him in May but had kept it in storage. [ 28 ] He testified concerning the evening of December 14 th that he had insisted that she be home by midnight and she agreed. He had phoned her shortly after midnight (early December 15 th ) and a man answered her cell phone. He had woken at 5:30 a.m. and she was not home. He went back to bed and when he awoke at 7:00 a.m. she was home. They argued, she pushed him then he pushed her on the floor. [ 29 ] JRD also repeated hearsay from CT(1)’s father and a person named M.

The first referred to CT(1) as unreliable. The other painted CT(1) as manipulative. As hearsay, the court gives neither any weight. [ 30 ] JRD testified that his stepfather had made a false allegation of threats against him in applying for a peace bond in early 2010. He also stated that CT(1) was bitter and would return AMD in the same unwashed clothes she wore when delivered to her. He stated her attitude was so poor and uncooperative that he now arranged contact with AMD through CT(1)’s parents, CT(2) and L. [ 31 ] In cross-examination, he denied that CT(1) did respond to his emails concerning access.

He was asked if his statement to the police said he was so drunk on December 15 th that he didn’t remember what happened. He answered that he had said that he had some drinks that night so he didn’t remember what names he had called her during the argument. He also agreed that AMD was up and out of bed during the incident. During the cross-examination he volunteered again that he did not believe that CT(1) had really changed because it had only been two months since December 15 th .

The Law [ 32 ] Between the filing of the application by CT(1) and JRD’s replies in December, 2012 and this hearing the Family Law Act replaced the earlier Family Relations Act . The new Act came into affect three days before this hearing. The nomenclature and some of the factors to consider have changed. However, the most basic test, that of what is in the best interests of the child remains the same under s37 of the Family Law Act .

[ 33 ]

Section 37 reads as follows:

(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only. [ 34 ] Subsection 2 of

section 37 then lists ten factors, although they are not exhaustive. They include the child’s need for stability, the ability of each guardian to exercise his or her responsibilities and the impact of family violence on the child’s well-being. [ 35 ]

Section 38 of the Family Law Act lists nine factors in assessing family violence in determining the best interests of the child. These factors include the nature of the violence, how recently it occurred, its frequency, its effect on the child. [ 36 ] Section 39 (1) of the Family Law Act reads: While a child’s parents are living together and after the child’s parents separate, each parent of the child is the child’s guardian. Despite this, subsection 2 allows the court to order that a parent is not a guardian. Obviously, that should only be done if the court is satisfied that it is not in the best interests of the child that the particular parent be a guardian. [ 37 ]

Section 41 of the Family Law Act lists twelve parental responsibilities. These would have been included in the concept of “guardianship” as used in the older Family Relations Act . These are such things as where the child will reside, the child’s education, and religious upbringing. [ 38 ] Section 42(1) of the Family Law Act reads: For the purposes of this Part, parenting time is the time that a child is with a guardian, as allocated under an agreement or order. It is what was called “access” under the Family Relations Act . [ 39 ] In effect this application although commenced under the Family Relations Act is an application under

section 45 of the Family Law Act for an order allocating parental responsibilities and parenting time. [ 40 ] Because of the change in legislation this is also an application under

section 47 of the Family Law Act .

Section 47 reads: On application, a court may change, suspend, or terminate and order respecting parenting arrangements if satisfied that, since the making of the order, there has been a change in the needs or circumstances of the child, including because of a change in the circumstances of another person. [ 41 ] The parties filed financial statements. JRD listed approximately $55,000 income last year. CT(1) listed approximately $14,000 income last year. JRD has been paying $250/month child maintenance continuously since the Consent Order of October 2011 except for the period of cohabitation.

Analysis [ 42 ] AMD was born in [omitted for publishing] . Her parents separated in October 2009. Both parents had a drug problem at the time of the separation. JRD ended his drug problem in 2009 and has been advancing in his career since. CT(1) continued through a series of short unstable relationships from October 2009 until May 2012. [ 43 ] In October 2011 the parties entered a Consent Order filed on December 6 th , 2011. It provided for joint custody, guardianship and access. On May 15 th , the parents agreed to attempt reconciliation and lived together until December 15 th , 2012.

The relationship collapsed on December 15 th , 2012 over the question if CT(1) was still “partying” contrary to the informal reconciliation agreement. There is also an allegation of assault on CT(1) by JRD from December 15 th before the courts.

[ 44 ] On January 15, 2013 a Consent Order was filed with regard to this claim and reply. The Order of January 15 th , 2013 does not expressly deal with what was then called custody and guardianship (now guardianship and parenting responsibilities). However, in effect, it establishes equally shared time with AMD for each parent. [ 45 ] Perhaps since the December 2011 Order, but certainly, since the January 2013 Order the consent arrangement has worked. [ 46 ] JRD says that he does not believe that CT(1) has really changed her lifestyle.

There is a strong inference that her lifestyle from October 2009 until May 15 th , 2012 was unstable and not in the best interests of AMD. [ 47 ] Happily, there was no evidence of any behaviour problems for AMD. JRD argues that the arrangement has only worked since the separation because CT(1) is using her parents’ stabilizing influence, not her own. There is logic to his suspicion. However, at this time it remains only a suspicion. [ 48 ] There is no evidence of a change in circumstances since the Order filed January 15 th , 2013.

The only change in circumstances since the Order of December 2011 has been the attempted reconciliation. If anything, CT(1)’s lifestyle has become more stable than it was when the Consent Order of December 2011 was entered. [ 49 ] There is a longstanding understanding that the stability of parental arrangements are in the best interests of the child. This is referred to in

section 37(

e) of the Family Law Act . [ 50 ] Therefore, the best interests of the child at this time are to maintain the status quo with regards to parenting responsibilities, parenting time and child maintenance. [ 51 ] Should CT(1) revert to behaviour such as her lifestyle before May 2012 it would obviously be open to JRD to apply to vary the parenting responsibilities and parenting time in this Order. [ 52 ] Similarly, should JRD be convicted of the criminal charges that he faces it would be open to CT(1) to apply to have this Order reviewed, with particular reference to family violence. Decision [ 53 ] Accordingly, the court makes the following Interim Order.

A) JRD and CT(1) are both guardians of AMD under s39(1) Family Law Act .

B) JRD and CT(1) will equally share parenting time of AMD on an alternating basis.

C) The exchange of the child shall be 5:00 p.m. on Saturdays.

D) During the week that the child is with one guardian the other guardian shall have one overnight visit with the child from 5: p.m. on the Wednesday of that week until the child is either returned to school or the other guardian on Thursday morning.

E) For Christmas, the guardian who would not normally have the child shall have the child from 1:00 p.m. on Christmas Day until 9: a.m. Boxing Day.

F) The guardian taking the child into his or her care shall be responsible for the pickup of the child unless otherwise agreed between the guardians.

G) While the child is in the care of one guardian, that guardian shall make his or her best efforts to give the non-care giving guardian the first opportunity to provide care giving services when required.

H) Each guardian shall advise the other guardian of any matters of a significant nature affecting the child.

I) Each guardian shall consult the other guardian about any important decisions that must be made about the child and shall try to reach agreement concerning these important decisions.

J) In the event that the guardians cannot reach agreement with respect to any major decision despite their best efforts, either or both guardians may, under s49 of the Family Law Act seek an order giving directions that the court considers appropriate.

K) JRD shall pay child maintenance of AMD to CT(1) in the amount of $250 on the first of each month as long as she is a child as defined in the Family Law Act or varied by this court or written agreement. ______________________________ W. F. M. Jackson Provincial Court Judge