C.M. v. K.W., 2018 BCPC 287

Citation: C.M. v. K.W. 2018 BCPC 287 Date: 20180827 File No: 17-29952 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.M. APPLICANT AND: K.W. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.P. HARRIS Appearing on their own behalf: K.W. Appearing on their own behalf: C.M. Place of Hearing: Vancouver , B.C. Date of Hearing: August 27, 2018 Date of Judgment: August 27, 2018

INTRODUCTION [ 1 ] On August 27, 2018, this Court denied K.W.’s Application to change the Honourable Judge Gordon’s Order (the Order). At that time, I indicated that written reasons would follow. These are those reasons. OVERVIEW [ 2 ] K.W. and C.M. were married in August 2004. They have one child, W.M., who was born on [omitted for publication]. The parties separated in October 2014. Originally they cooperatively parented W.M., unfortunately, their cooperation has disintegrated and what remains is hostility and anger.

These emotions have compromised the parties’ ability to cooperate and what has followed is a series of court applications and motions. [ 3 ] K.W. applies to vary the Order dated February 16, 2018. C.M opposes K.W.’s application and seeks an Order preventing K.W. from relocating to White Rock. A hearing was held wherein K.W. and her mother, A.W. testified. C.M. and his common law partner, T.M. also gave evidence. THE EVIDENCE [ 4 ] The parties in this matter were unrepresented and there were occasions where they revisited historical issues.

I have not reproduced that evidence as it is not particularly relevant to the issues, moreover, the revisiting of this evidence will not assist in a timely efficient disposition and would only serve to increase the anger and dysfunction between the parties. FOR THE MOTHER K.W. - MOTHER [ 5 ] K.W. is a high school teacher and she has a Master’s degree in curriculum and instruction. She is a teacher in the [omitted for publication] district. Currently, K.W. is living between Vancouver and her aunt’s place in Surrey.

Apparently, K.W. signed a lease with her aunt, but K.W. did not find the living arrangements suitable and therefore she has signed a lease to live in White Rock commencing September 1, 2018. [ 6 ] In February of 2018, K.W. appeared with counsel before the Honourable Judge Gordon, and the parties entered into a Final Consent Order (the “Order”) The portions of the Order relevant to this instant matter are: … 3. Upon the Applicant, C.M., moving his residence from the [omitted for publication], the Child’s parenting time with each party will be pursuant to a rotating

schedule whereby the Child shall reside with the Respondent, K.W., for 3 consecutive days and nights, and then with the Applicant C.M., for two consecutive days and nights. … 5. The Child shall continue to attend [omitted for publication] until at least February 20, 2018. After February 20, 2018, and provided that the Child is accepted for enrolment in either [omitted for publication] School or [omitted for publication] Elementary, the Child will attend one of these private schools, and otherwise the Child shall attend [omitted for publication].

Once the Child changes schools from [omitted for publication], there will be no further changes of school for the Child neither for the balance of the 2017/2018 school year nor for the 2018/2019 school year. The selection of the Child’s school may be reviewed for the 2019/2020 school year. … [ 7 ] As for the above Order, K.W. regrets consenting to it and she feels her lawyer “sold” her out. She explained she originally instructed her lawyer to ask for C.M.’s parenting time to be limited to a

schedule of 5 days with K.W. and 2 days with C.M., but that her lawyer would not ask for this. SCHOOLING [ 8 ] K.W. feels that it would be in W.M.’s best interests if he attended school, a Catholic school in White Rock. Specifically, K.W. feels that W.M. is gifted and that he is not reaching his full potential in his current school. In support, K.W. referred to W.M.’s grade one report card which according to her indicates that W.M. is minimally meeting reading requirements and that his kindergarten report card, according to K.W., was terrible.

As such, K.W. has concluded that it is in W.M.’s interests to place him in, [omitted for publication], an independent (“private”) Catholic school with low student to teacher ratio and well equipped to support gifted children. [ 9 ] K.W. explored placing W.M. in [omitted for publication] School and [omitted for publication] Elementary. [Omitted for publication] School decided against accepting W.M. as they were concerned about behavioural issues.

As for [omitted for publication] Elementary, K.W., testified that any possibility of W.M. being admitted to [omitted for publication] Elementary was sabotaged by C.M. who apparently informed the administration about the continuing custody issues. [ 10 ] In her testimony K.W. impressed on the Court that other Vancouver schools were not suitable for W.M. and those that were suitable did not have sufficient room to accommodate W.M.

K.W. testified about the [omitted for publication] in White Rock and she informed the court that there was one spot remaining in the grade 2 class. [ 11 ] K.W. was questioned about the viability of independent Catholic schools located in Vancouver. K.W. initially suggested that no Vancouver independent schools were appropriate. It later became evident that her response was related to a search which she did last

year, thus, prior to her receiving W.M.’s grade 1 report card. Moreover, it would appear that K.W. limited her search to schools that were convenient for her given her work commute (transcript page 28), hence, K.W. did not canvass all Catholic schools in Vancouver.

Lastly, it would appear that K.W. settled on [omitted for publication], because now, and unlike when the Order was made, her parents have committed to assisting K.W. in purchasing and building a new home in White Rock. [ 12 ] During cross-examination K.W. confirmed that the [omitted for publication] school would be very convenient for K.W. in that it would be minutes from her proposed residence and her work.

PARENTING TIME [ 13 ] As for K.W. wanting to reduce C.M.’s parenting time, K.W. testified that she wants to reduce C.M.’s parenting time because she believes that C.M. is psychologically and emotionally abusing W.M. In this regard K.W. claims that C.M. is an alcoholic, that C.M. does not support W.M.’s schooling, and that C.M. is inattentive to W.M. during his scheduled parenting time. As such, K.W. is of the view that it is in the best interests of W.M. if his time with C.M. were reduced. [ 14 ] Dealing with K.W.’s claim that C.M. is abusive. K.W. offered no evidence that C.M. physically mistreats W.M.

K.W. did express concern that W.M. has stated he wanted to kill himself and K.W. believes these words were learned from C.M. K.W. also suggested that C.M. was using inappropriate language in front of W.M. K.W. also indicated that C.M. would laugh at W.M. when that he stated he wanted to be a scientist, and lastly, K.W. believes that C.M. has permitted W.M. to have contact with a sexually intrusive cousin. [ 15 ] With respect to C.M. being an alcoholic, K.W. stated that C.M. had been in Alcoholics Anonymous and that he has been drinking around W.M.

When asked how she knew that, that C.M. was drinking around W.M., K.W. indicated that W.M. told her C.M. takes him to adult parties and he (C.M.) gets mad when W.M. is shy. [ 16 ] In regards to C.M. failing to support W.M’s schooling, K.W. testified that W.M has been attending tutoring classes and he has high test scores on those occasions where he has spent the previous night with her, in contrast, W.M. achieves low scores if he spends the night prior to a test with C.M., as such, K.M. believes that C.M. does not do worksheets with W.M.

K.M. also alleges that C.M. does not do homework with W.M., and that he has missed taking W.M. to extra tutoring. [ 17 ] In terms of being an inattentive parent, K.W. testified that C.M. would come home from work have a nap and spend time watching television, rather, than engaging with W.M. A.W. - MATERNAL GRANDMOTHER [ 18 ] A.W. is K.W.’s mother and therefore grandmother to W.M. A.W. is 69 years old, she is a retired elementary school teacher and she lives in Ontario. A.W. sees W.M. at least two or three times per year. She finds W.M. to be fun, loving, curious and very scientific.

A.W. testified that W.M. informed her that C.M. does not like her, that C.M. swears and that C.M. watches a lot of television and he has naps. [ 19 ] A.W. also testified that K.W. is a loving mother who cares about W.M.’s education and development. A.W. also testified that she and her husband are prepared to help K.W. purchase and build a home in White Rock. It is A.W.’s perspective that W.M. needs a stable environment and moving between homes is not helpful. FOR THE FATHER C.M. - FATHER [ 20 ] C.M. is a carpenter and he lives in Vancouver with his common law partner, T.M.

In the spring of 2018, C.M. and T.M. changed their residence from the [omitted for publication] so they could have increased parenting time as contemplated by the Order. [ 21 ] C.M. and T.M. do not drive and therefore they rely on public transportation and friends to get around. If W.M. attends school in White Rock, C.M. is of the view that his parenting time will be have to be reduced given the distance is about 50 kilometres from Vancouver. SCHOOLING [ 22 ] C.M.’s opposes W.M. changing schools.

He points out that a new school would be W.M.’s third school and that the first move from [omitted for publication] placed significant stress on W.M. Moreover, C.M. does not see how changing schools will assist W.M. with his learning challenges. Lastly, C.M. reports that W.M. has informed him that he does not want to change schools. PARENTING TIME [ 23 ] C.M. opposes any reduction in his parenting time.

As for the suggestion that he is inattentive during his parenting time, C.M. acknowledged there were a couple of times when he napped after work, but he explained that W.M. would be interacting with T.M. and he strongly challenges the suggestion that he does not interact with W.M. In this regard, he testified they play vigorously, they do quite a bit of reading and he named “The Lion, the Witch and the Wardrobe”, and Dr.

Seuss as some of the books that they have read. [ 24 ] As for the suggestion that C.M. does not support W.M.’s schooling, C.M. points out he does homework with W.M. and as for issues regarding the tutoring, C.M. maintains he has done work with W.M. but points out items have been withheld from him in that study materials were not in W.M.’s backpack. C.M. provided an example of information being withheld from him and in this regard he referred the court to a letter from the tutor dated July 19, 2018 and addressed to C.M..

The letter communicated concerns regarding W.M. completing his work yet, surprisingly, C.M. received this letter from K.W. on the day of the instant hearing, (despite it being prepared a month earlier).

[ 25 ] C.M. denies stating that he would kill himself in the presence of W.M. C.M. was shocked to hear that W.M. was uttering such statements and he has made efforts to have W.M. engage with a school counselor. [ 26 ] C.M. denied drinking when W.M. is in his presence. T.M. - COMMON LAW [ 27 ] T.M. has known C.M. since 1990. She has never known C.M. to be violent.

As for C.M.’s drinking, she testified he hardly ever drank in front of W.M. and she noted one occasion at a wedding where she felt that C.M. had consumed too much alcohol and she spoke to him about this. [ 28 ] As for school work, T.M. testified that both her and C.M. have done tonnes of homework with W.M. and that she has photographs of them doing homework. [ 29 ] On the issue of C.M. napping and not interacting with W.M., T.M. acknowledged there were occasions when C.M. would nap, however, on these occasions W.M. would be entertaining himself or he would be doing things with T.M. such as helping in the kitchen or the garden. [ 30 ] T.M. also acknowledged inappropriate language had been used in the presence of W.M. and she candidly acknowledged they should be more aware of how they speak in front of W.M. [ 31 ] T.M. was asked if she was prepared to support W.M. should he choose to play minor hockey and T.M. agreed that she was prepared to do so.

FINDINGS CREDIBILITY AND RELIABILITY [ 32 ] Where the evidence between the parties differs I prefer the evidence of C.M. over that of K.W. I find that K.W. was not candid and open with the court. Concerns with K.W.’s credibility are as follows. First, K.W. left the Court with the impression that W.M. was still enrolled in a Vancouver school and that the [omitted for publication] had only one seat left, thus, suggesting some urgency to the matter.

However, when the Court was giving its decision, K.W. finally informed the Court that she had already withdrawn K.W. from the Vancouver school and enrolled him in the [omitted for publication]. [ 33 ] Second, in her affidavit K.W. stated she advised the Ministry of Children and Family Development about concerns regarding W.M., yet, she neglected to state in her affidavit or in her testimony that the Ministry declined to investigate. In essence, she left out information that might not support her assertions. [ 34 ] Third, K.W.’s assertion that she was living at her aunt’s appeared to change.

Originally K.W. stated was living there, then it became she was between Vancouver and her aunt’s place and on another occasion she mentioned that she obtained a lease at her aunt’s place so she could enroll W.M. in hockey. Such comments indicate that K.W. is prepared to create false impressions to achieve what she wants. [ 35 ] As for K.W.’s evidence, I accept that W.M. has likely been using profane language and I also accept that he has been prone to displaying frustration.

As for the suggestion that W.M. is gifted and needs to be in a special school, K.W.’s credibility and her natural parental bias taints her conclusions. Moreover, I note there is an absence of any independent testing. [ 36 ] With respect to A.W.’s evidence, I note some of the information contained in her testimony was likely learned from her daughter, K.W. I also note A.W. does not have regular contact with W.M.

Despite this, I accept her evidence in that W.M. could use further work on his reading, I also accept that A.W. and her husband are prepared to assist K.W. in purchasing a home. [ 37 ] Turning to C.M.’s evidence, I found him to be a credible and reliable witness. In this regard, I observe he made admissions that could be interpreted as contrary to his interests. Specifically, he admitted using profane language and taking the occasional nap after work. [ 38 ] Similarly, I found T.M. to be a credible and reliable witness. She acknowledged things that were not necessarily in C.M.’s interests.

In this regard, she acknowledged the poor language, she acknowledged the naps and she testified about an incident where she spoke to C.M. about how much he had to drink at a wedding. FINDINGS [ 39 ] Considering all of the evidence, I accept that W.M. experiences some difficulty with reading. However, I observe that his grade one report card indicates that he is currently reading at DRA level 14 which is minimally meeting requirements, and that he is continuing to improve.

I find this information was generally available to the parties when the Order was made, which explains why [omitted for publication] School and [omitted for publication] elementary were identified. I also find that the Order contemplated W.M. not being accepted to either school. [ 40 ] As for the [omitted for publication], I do not accept that this is the only viable or even necessary solution for W.M.

Specifically, there is no evidence of testing to determine if he is gifted; or if he is suffering from a learning disability; or if he is simply stressed because of the parental conflict that envelopes his little world. [ 41 ] I am also not satisfied that C.M. has psychologically or emotionally abused W.M. In my view using inappropriate language or taking naps does not, in the circumstances, amount to abuse. I do not accept that C.M. consumes alcohol around W.M. or that he laughs at W.M.’s desire to be a scientist. Finally, the unproven allegation that W.M. may have been sexually touched by a cousin, does not, in

the circumstances, amount to abuse by C.M. THE LAW [42]

Section 215 of the Family Law Act, S.B.C. 2011, c. 25, (the “FLA”) permits a court to change, suspend or terminate an order ifthere has been a change in circumstances since the order was made. In this regard, s. 215 reads: 215

(1) Subject to this Act, a court on application by a party may change, suspend or terminate an order, if there has been a change incircumstances since the order was made.

(2) A court may not change, suspend or terminate an order made under

Part 5 [Property Division] or 6 [Pension Division] except asprovided under those Parts. [43] In Jellis v. Jellis, 2014 BCSC 375, Mr. Justice Melnick in the context of an application to change an existing order made helpfulobservations at paragraphs 25 - 26 he stated: [25] The threshold question on this trial is whether there has been such a material change in circumstances since the consent order ofSeptember 20, 2010, that the order should now be reviewed and changed as no longer representing what is in the best interests of thechildren. Everyone experiences changes in his or her life.

Court orders cannot be lightly set aside or varied for every little change thatlife may bring. Parties are assumed to know that when they consent to a permanent court order intended to govern their future affairs,that there will inevitably be some changes in their lives as time goes on. The Supreme Court of Canada, whose judgment I must follow,laid down a basic rule for courts to apply when considering when circumstances have changed to such an extent that there must be a newinquiry into what is in the best interests of children in such situations as these. [26] In the case of Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27, the Court stated the law to be that: … The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a materialchange in the circumstances affecting the child.

For that threshold to be met, the judge must be satisfied of (1) a change in the condition,means, needs or circumstances of the child or in the ability of the parents to meet the needs of the child, (2) which materially affects thechild, and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order… Also see L.M.P. v.

L.S., 2011 SCC 64 , at paras. 30-35, reaffirming the test regarding a material change of circumstance. [44] Accordingly I will consider if, material changes have occurred since the Order was made that impacts C.M.’s ability to meetW.M.’s needs, or if the changes, if any, materially effects W.M., and whether or not the changes could have reasonably been foreseenwhen the Order was made, and finally, in light of any changes that are found whether or not the Order still meets the best interests ofW.M.?

ANALYSIS [45] There is no evidence upon which this court could conclude that any changes have occurred rendering C.M. incapable ofmeeting W.M.’s needs. I observe C.M. has been communicating with W.M.’s teachers, and counselor. He is also engaged in reading,playing and doing homework with W.M. I do not see the naps or the fact that C.M. attended Alcoholics Anonymous as evidence tosuggest that C.M. does not meet W.M.’s needs or is incapable of doing so. Similarly, I do not see the difficulties with the tutor as beingsuggestive that C.M. is incapable of meeting W.M.’s needs.

Finally, C.M.’s inappropriate language simply reflects a parenting style thatneeds improvement but does not indicate an inability address W.M.’s needs. [46] As for any changes since the Order was made, the awareness that W.M. cannot be placed in [omitted for publication]Elementary or [omitted for publication] School can be viewed as a change, but not material. This was a possibility that appears to behave been contemplated by the parties when the Order was made. Moreover, there is no evidence to suggest that W.M.’s current schoolis not meeting his needs or that the school cannot meet his needs.

In my view a report card indicating that W.M. is minimally meetinghis reading level does not automatically mean that he needs to change schools, rather it supports a view that the underlying cause(

s) needsto be explored before making assumptions and moving schools. [47] Finally, I am of the view that the Order continues to address the best interests of W.M. Specifically, all information suggestsW.M. needs are being met at his current school. I also observe, the Order permits regular and meaningful contact between W.M. andC.M, whereas, the proposed variation to parenting time and school would undermine this which would not be in the best interests ofW.M. CONCLUSION [48] K.W. has failed to satisfy me that there has been a material change necessitating a variation to the Order.

Specifically, C.M. isstill able to meet W.M.’s needs. Further, the inability to enroll W.M. in [omitted for publication] Elementary and [omitted forpublication] School was contemplated by the Order and there is no evidence showing that W.M. is negatively impacted by remaining inhis current school. Finally, the Order continues to meet the best interests of W.M. whereas the changes sought would, in my view, becontrary to the overall best interests of W.M. Accordingly, K.W.’s application is dismissed. [49] C.M.’s application to restrict K.W.’s move to White Rock is dismissed.

I see no basis to make such a restriction. If K.W.decides to move she will still have to comply with the current Order and ensure that W.M. is made available for exchanges at thedesignated times and locations. Anything less would be a breach of the Order and contrary to the best interests of W.M.

_____________________________ The Honourable Judge R.P. Harris Provincial Court of British Columbia