M.M. v. P.M., 2022 BCPC 147

Citation: M.M. v. P.M. 2022 BCPC 147 Date: 20220722 File No: 1729863 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: M.M. APPLICANT AND: P.M. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. LEE Counsel for the Applicant: S. Cowan Appearing on their own behalf: P.M. Place of Hearing: Vancouver , B.C. Date of Hearing: July 20, 2022 Date of Judgment: July 22, 2022

Introduction [ 1 ] M.M. is the father and P.M. is the mother of a 9-year-old child. [ 2 ] There exists three interim consent orders of this court dealing with parenting arrangements and parenting time, including an order for alternating weekend parenting time for the father. Despite these orders, the last time the father saw the child was on February 13, 2022. [ 3 ] On April 20, 2022, the father filed an Application About Enforcement to enforce the existing parenting time orders based on an alleged wrongful denial of parenting time by the mother.

Privacy [ 4 ] Section 3(6) of the Provincial Court Act requires that in relation to family or children’s matters before the court, a person must not publish at “any time anything that would reasonably be likely to disclose to members of the public the identity of the child or party.” This

section is designed to protect the privacy of family members appearing in this court. I intend to publish this decision and when doing so, this decision will refer to the parties by their initials. Otherwise, I describe the parties as “the father,” “the mother” and “the child.” In doing this, I do not intend for there to be any disrespect for all persons referred to in my decision.

Background [ 5 ] These court proceedings started on August 9, 2017 when the father filed an Application to Obtain an Order to seek orders regarding contact or parenting time. [ 6 ] On October 11, 2018, Judge Rideout made an interim consent order.

Among other things, the order stated that both parties were guardians of the child and the father was to have liberal and generous parenting time as agreed. [ 7 ] On July 22, 2019, Judge Denhoff made a consent order on an interim without prejudice basis that the father would have parenting time from Friday at 3:00 p.m. until Sunday at 4:00 p.m. every second week starting July 26, 2019. [ 8 ] On September 24, 2019, Judge Meyers made an interim consent order allowing the father the opportunity for Skype calls with the child. [ 9 ] Even though the parenting time

schedule called for alternating weekends, the parties did not follow the

schedule strictly and were flexible in their scheduling. [ 10 ] At some point in time, the child did not want to stay over at the father’s home. The father then rented a three bedroom home so that the child could have a room. However, the child was afraid to sleep alone. The mother suggested that the child and the father sleep in the same room in separate beds. She supplied two twin beds for the father to use in his bedroom. The father then rented out the other two bedrooms in his home to tenants. [ 11 ] In November 2021, the father went to Thailand to visit his new wife. He returned in mid-December 2021.

While he was away, he had regular Skype communication with the child. [ 12 ] Over Christmas 2021, the father spent Christmas at the mother’s home at her invitation. [ 13 ] The father said that from that point, there were decreases in his parenting time. In January 2022, the father only saw the child on two days without any overnight visits. [ 14 ] January 27, 2022 was the father’s last Skype communication with the child, although he did have text communications after that date. [ 15 ] On February 13, 2022, at the child’s request, the father took the child ice-skating.

According to the father, the child enjoyed the visit. As evidence of this, the father presented a photograph of the smiling child taken while ice-skating. This was the father’s last in- person visit with the child. [ 16 ] The father said he would text the mother to request to see the child.

At times, the mother blocked his telephone number or she did not respond to his texts. [ 17 ] On March 3, 2022, the mother emailed the father to say that the child did not want to see him anymore. [ 18 ] On March 4, 2022, the mother’s then lawyer, Karuna Belani, wrote to the father setting out the mother’s concerns, as follows: 1. That you do not have a room for [the child] at your place [nor] do you offer any creature comforts; 2. That [the child] does not have a proper bed to sleep in; 3. That my client purchased a twin bed for [the child] that is being used by you; 4.

That the other rooms at your residence are rented to strangers thus creating an unsafe environment for [the child];

5. That you routinely have other/unknown people pick up and drop off [the child] to facilitate parenting time; and 6. That you are often not properly clothed and only dressed in your underwear in the presence of your young [child]. [ 19 ] At trial, the father responded to these concerns, as follows: 1. The father and the child can share a room and if necessary, he can sleep on the sofa. His home has a beautiful backyard, he is a good cook and the child has a bicycle to use. 2. The father still has the twin beds, which he put into storage when his parenting time was cut off. 3.

The father rented the other two bedrooms to female tenants, who were aware that a child would be in the home. The tenants agreed they would not have male guests. 4. The father denied that unknown people have picked up the child. He once asked the mother if his tenant would pick up the child. On another occasion, he asked his landlady to pick up the child. The landlady’s daughter is a friend of the child. 5. Over Christmas 2021, the father was at the mother’s apartment. While the mother was working, the father found the apartment hot. To be more comfortable he removed his pants but still wore his boxer shorts.

The child was present in the apartment. The father thought, “it was no big deal.” [ 20 ] The father made further unsuccessful requests to see the child. [ 21 ] At some point, the father phoned the police to check on the child. The mother said this was harassment and the police told the father that this was a matter for the courts to resolve. [ 22 ] The father seeks a finding that the denial of parenting time was wrongful.

The father asks for a process for the parties to discuss parenting time without fear that the mother will report him to the police for harassment, and for an order for compensatory parenting time as agreed by the parties. [ 23 ] I will also briefly comment on another request by the father. If the mother contravenes any order I may make to enforce parenting time, the father asks for permission to file an Application About a Priority Parenting Matter so that he can seek enforcement orders immediately.

Enforcement of an order does not fall under the definition of a “priority parenting matter” found at Rule 2 of the Provincial Court Family Rules . In addition, the notice requirement of 7 days applies for both an Application About Enforcement and an Application About a Priority Parenting Matter . As such, this order is not necessary. [ 24 ] The mother confirms that the father has not had in-person parenting time since February 2022. [ 25 ] She testified that the child is not willing to see the father. [ 26 ] The mother said she has encouraged the child to see the father.

Over Christmas 2021, the mother invited the father to spend time at her home with the child. The mother has also loaned a car to the father so that he could drive the child. The mother denies trying to prevent the father from having parenting time with the child. [ 27 ] According to the mother, the child’s concerns are as follows: 1. The child is afraid to go to the father’s home, as it is an old house. 2. The child does not want to be left alone with a baby sitter. 3. The child gets bored at the father’s home. 4. There are no activities for the child to do at the father’s home. 5.

The child does not like the food offered by the father. [ 28 ] The mother also said the child was afraid to go to the father’s home but she did not explain why. [ 29 ] The mother said the father is continually asking the child questions about the mother, which makes the child uncomfortable. [ 30 ] The mother said the parenting time orders were made three years ago and the child has since grown and changed.

The child does not want to stay overnight and wants visits that involve fun activities such as ice-skating. [ 31 ] The mother said that the child’s concerns should be heard and suggested a s. 211 views of the child report as a means for the court to hear the child. Analysis [ 32 ] I start by setting out ss. 61 and 62 of the Family Law Act , which state: Denial of parenting time or contact 61

(1) An application under this

section may be made only (

a) by a person entitled under an agreement or order to parenting time or contact with a child, and

(

b) within 12 months after the person was denied parenting time or contact with a child.

(2) If satisfied that an applicant has been wrongfully denied parenting time or contact with a child by a child's guardian, the court on application may make an order to do one or more of the following: (

a) require the parties to participate in family dispute resolution; (

b) require one or more parties or, without the consent of the child's guardian, the child, to attend counselling, specified services or programs; (

c) specify a period of time during which the applicant may exercise compensatory parenting time or contact with the child; (

d) require the guardian to reimburse the applicant for expenses reasonably and necessarily incurred by the applicant as a result of the denial, including travel expenses, lost wages and child care expenses; (

e) require that the transfer of the child from one party to another be supervised by another person named in the order; (

f) if the court is satisfied that the guardian may not comply with an order made under this section, order that guardian to (

i) give security in any form the court directs, or (ii) report to the court, or to a person named by the court, at the time and in the manner specified by the court; (

g) require the guardian to pay (

i) an amount not exceeding $5 000 to or for the benefit of the applicant or a child whose interests were affected by the denial, or (ii) a fine not exceeding $5 000.

(3) If the court makes an order under subsection (2) (a), (

b) or (e), the court may allocate among the parties, or require one party alone to pay, the fees relating to the family dispute resolution, counselling, service, program or transfer. When denial is not wrongful 62

(1) For the purposes of

section 61 [denial of parenting time or contact] , a denial of parenting time or contact with a child is not wrongful in any of the following circumstances: (

a) the guardian reasonably believed the child might suffer family violence if the parenting time or contact with the child were exercised; (

b) the guardian reasonably believed the applicant was impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised; (

c) the child was suffering from an illness when the parenting time or contact with the child was to be exercised and the guardian has a written statement, by a medical practitioner or nurse practitioner, indicating that it was not appropriate that the parenting time or contact with the child be exercised; (

d) in the 12-month period before the denial, the applicant failed repeatedly and without reasonable notice or excuse to exercise parenting time or contact with the child; (

e) the applicant (

i) informed the guardian, before the parenting time or contact with the child was to be exercised, that it was not going to be exercised, and (ii) did not subsequently give reasonable notice to the guardian that the applicant intended to exercise the parenting time or contact with the child after all; (

f) other circumstances the court considers to be sufficient justification for the denial.

(2) If, on an application under

section 61, the court finds that parenting time or contact with a child was denied, but was not wrongfully denied, the court may make an order specifying a period of time during which the applicant may exercise compensatory parenting time or contact with the child. [ 33 ] The existing parenting time orders are interim orders. There has not been a full trial to permit the court to determine what is in the best interests of the child. [ 34 ] Furthermore, s. 37 of the Family Law Act provides that when making an order for the care of and time with children, the best interests of the child is the only consideration.

This includes looking at the long-term consequences of any such court order, including the enforcement of such orders. [ 35 ] The evidence of the mother is that the child does not wish to have parenting time visits at the father’s home. The father said he is not aware of this and there is no evidence of the child’s refusal. There may not be any independent evidence of the child’s refusal but that does not mean the child is willing to go to the father’s home. This uncertainty is the basis for the mother’s request for a s. 211 views of the child report.

[ 36 ] The father referred to the picture of the child ice-skating as evidence that the child is happy to be with him. However, a single picture is not evidence of a person’s views. A person may smile for the camera but the resulting picture does not always reveal that person’s true thoughts. [ 37 ] I accept the mother’s evidence that the child is refusing to see the father. I found her evidence to be credible and that her actions were motivated by a genuine worry for the child.

Given the child’s refusal, I have concerns that enforcement of the existing parent time orders will jeopardize the long-term relationship between the father and the child. [ 38 ] I am satisfied that in the past, the mother has taken steps to encourage parenting time between the father and the child. This includes the invitation to stay over at Christmas, and the loan of the car and the two beds. [ 39 ] In the decision K.R. v. J.W ., 2016 BCSC 225 , the court stated at paragraph 65: 2.

Where a child is resistant to scheduled parenting time, the source of that resistance must be examined to determine if the parent has fostered it.

Further, that parent’s response to the resistance must be examined to determine if it is situationally appropriate so as to avoid the result being characterized as a denial of parenting time. [ 40 ] Denial of parenting time may not be wrongful if a child adamantly refuses to see a parent, the source of the resistance requires further examination, there is a risk that enforcement of a parenting time order may jeopardize the long-term relationship between a child and parent, and the primary caregiver has not encouraged the child’s resistance. These are all relevant considerations under s. 62(1)(

f) of the Family Law Act . [ 41 ] In the case before me, the child’s refusal to see the father requires further investigation. This will assist the court to determine if the present parenting time

schedule is jeopardizing the long-term relationship between the child and the father. It will also help determine if that

schedule needs to change. [ 42 ] As I am satisfied the child is refusing parenting time with the father, and that the mother has attempted to encourage parenting time, I find that the mother has not wrongfully denied parenting time to the father. [ 43 ] Even in the absence of a wrongful denial of parenting time, Family Law Act s. 62(2) still allows me to make an order for compensatory parenting time. I am not prepared to make such an order in light of the child’s resistance to parenting time with the father. Once again, my concern is the potential for long-term damage to their relationship. [ 44 ] I did consider making an order for a s. 211 views of the child report, relying on Rule 62(

n) and Rule 61, which allows me to make a case management report at any time. However, counsel for the father was opposed to such an order although this was more out of concern for any delay this would cause in reinstating parenting time. Given these circumstances, I will not make an order for a s. 211 views of the child report. [ 45 ] The mother has filed an Application About a Family Law Matter . The father has been served and still has time to file a Reply. When he does, the Court will

schedule a Family Management Conference. It is at that point that the Court may consider ordering a s. 211 report on the views of the child. The parties may also want to consider seeking an order by consent for a s. 211 views of the child report. This can be applied for by way of an Application for Case Management Order Without Notice or Attendance . [ 46 ] The child’s primary objection appears to be going to the father’s home. I urge the parties to arrange some other activity that does not involve an overnight stay at the father’s home.

I suggest asking for the child’s wishes. [ 47 ] I also suggest that the parties consider counselling for the child so as to investigate the child’s reluctance for overnight visits. [ 48 ] The interim parenting time orders remain in effect. Rather than varying interim orders as requested in the mother’s Application About a Family Law Matter , this court might consider making a final parenting time order. [ 49 ] Based on the above, I dismiss the father’s Application About Enforcement. _____________________________ The Honourable Judge W. Lee Provincial Court of British Columbia