C.W. v. P.C., 2022 BCPC 226

Citation: C.W. v. P.C. 2022 BCPC 226 Date: 20220907 File No: 17472 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: C.W. APPLICANT AND: P.C. RESPONDENT ORAL RULING OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Applicant: Whidden, G. Counsel for the Respondent: Kane, C. Place of Hearing: Quesnel , B.C. Date of Hearing: September 6, 2022 Date of Judgment: September 7, 2022 Introduction

[1] On June 10, 2022, P.C. filed an Application About a Priority Parenting Matter in Quesnel Provincial Court, Court File [omittedfor publication]. He seeks an order that his daughter, P. born [omitted for publication], be directed to attend [omitted for publication]Elementary School for Kindergarten commencing in September 2022. On June 22, 2022, P.’s mother, C.R. filed a Written Responseopposing P.C.’s Application. She asked the Court to order that she have the right to decide which elementary school P.. will attend, or,alternatively, for the court to direct that P. attend the [omitted for publication] Elementary School. Both schools are in [omitted forpublication], BC. She also seeks: (

a) an order directing P.C. to sign P.’s passport application; and (

b) an order that P. may resumereceiving family support services from Jenn Vickers of the Carrier Chilcotin Tribal Council. [2] P.C. and C.W. have been before me for a nine-day trial of their family law matter on October 5, 6, 7, 8, 2020, and October 5, 8,18, 20, 21, and 2021 in Quesnel Provincial Court. On January 17, 2022, I ordered, among other things, that P.C. and C.W. were P.’sguardians and they were to share equal parental responsibilities as set out in s. 41 of the Family Law Act.

I further ordered that if P.C. andC.W. “could not agree on a parental responsibility either guardian could apply to the court and the court will determine which of theguardians can make the decision or make such other order as the court deems appropriate.” Pursuant to my January 17, 2022, Order, P.C.has parenting time with P. two times per week for 24 consecutive hours for each visit and one additional day per month for 24consecutive hours on such days and times as P.C. may choose. He also has extended holiday parenting time with P. in each of the fourseasons.

Background facts [3] The background facts to this decision are summarized in my reasons for judgment indexed as C.W. v. P.C., 2022 BCPC 6. [4] P.C. was born on [omitted for publication], and is now [omitted for publication] years old. He resides in a two-bedroomcondominium at [omitted for publication]. He has primary parenting time with his two sons with C.H: E.C. born [omitted for publication]and L.H. born [omitted for publication]. [5] P.C. works as a labourer for [omitted for publication], a job he has held for ten years. Over the years, P.C.’s shift fluctuated afair amount.

In the recent past, P.C. has predominately worked the graveyard shift. Essentially, he works from 12:00 a.m. (or 1:00 a.m.)to 8:00 a.m. He has an overnight childcare provider, C.F. C.F. is 20 years old. She is currently finishing her post-secondary education asa social worker. She has experience and training as a childcare provider. [6] P.C. is usually home by 8:15 a.m., at which time he drives E.C. and L.H. to school. If for some reason he was late returningfrom his shift, C.F. could drive the boys to school. [7] P.C. work situation may change on October 11, 2022.

On that date, [omitted for publication] intends to eliminate what wasknown as the “gold shift” and reduce by half the number of workers on the graveyard shift. P.C.’s fulltime employment is assured, butnot his position on the graveyard shift. More specifically, P.C. has sufficient seniority to secure fulltime employment, but not necessarilyon the graveyard shift. He may have to return to a swing shift, meaning that he alternates shifts every two weeks. [8] P.C. worked the swing shift last year, which meant he was unavailable to pick up his sons after school.

E.C. and L.H. took thebus from [omitted for publication] to [omitted for publication], where his sister, K.O. works. She takes the boys home with her afterschool and P.C. picks them up at her house when he is off shift at 4:30 – 4:45 p.m. P.C. acknowledges the impending upheaval at hiswork site makes it difficult for him to make future plans with any precision. However, P.C. has always taken care of his children.

ShouldC.F. no longer be available to assist with childcare, P.C. will figure something out and make appropriate arrangements for the children’scare. [9] It has been and continues to be P.C.’s dream of moving back to live on his family’s cattle ranch, which is in the [omitted forpublication]. It is about a one and one-half hour drive from [omitted for publication], depending on the road and weather conditions. [10] C.W. was born on [omitted for publication], and is now [omitted for publication] years old. She continues to live alone with P. at[omitted for publication].

C.W. works fulltime as an administrative assistant at [omitted for publication] from 8:00 a.m. to 4:30 p.m. Formany years, C.W. had to drop off P. at day care in the early morning. She has rearranged her work

schedule so that she can now drop offP. at school on her way to work. [11] P.C. says that on February 28, 2022, C.W. advised him that she had registered P. in [omitted for publication] Elementary Schoolto start Kindergarten in September 2022. P.C. wanted P. to attend [omitted for publication] Elementary because that is where E.C. andL.H. attend school.

P.C. says that C.W. falsely claimed she was required to enrol P. in [omitted for publication] Elementary because P.’sprimary residence was with C.W. and [omitted for publication] Elementary is within her catchment area. [12] C.W. actually enrolled P. in [omitted for publication] School without any notice to or discussions with P.C. She indicated on theStudent Admission Form that she intended to move to the [omitted for publication] area by the end of 2022.

This was the first P.C. heardof C.W.’s plans to relocate her and P.’s residence. [13] P.C. learned from the School District [omitted for publication] that P. could be enrolled in [omitted for publication], or [omittedfor publication] or [omitted for publication] elementary school. P.C. believes that [omitted for publication] is the best option for P.because: a. It is in P.’s best interest to attend the same school as E.C. and L.H.; b.

P. could continue her routine established in the last half of 2021/2022 school year, when she accompanied her father to pick up anddrop off her brothers at [omitted for publication]; c. P.C. has come to know a number of the staff at [omitted for publication], which would assist P. in obtaining the supports she mayneed throughout the school year;

d. It would make it difficult for P.C. to have to pick up and drop of the children at two different schools that are some distance apart; and e. P.C. could pick up P. after school, take her to his home, and spare C.W. the cost of after school care. [ 14 ] C.W. argues that P. ought to go to [omitted for publication] Elementary School because: a. She is poised to move to the [omitted for publication] area; b. [omitted for publication] Elementary is within a four-minute drive to her new residence, whereas [omitted for publication] is a 15 to 20 minute drive; c.

As P.’s primary residence is with C.W., it makes sense that P. attend school where it is easily accessible to C.W.; d. P.’s daycare is [omitted for publication]. This daycare is one kilometre from [omitted for publication] Elementary; e. Each morning, on her way to work, C.W. can drop off P. at school or, if it is too early, at daycare. The daycare provider will ensure that P. is accompanied to and from [omitted for publication] Elementary; f. P. has attended the same daycare since she was 15 months old; g. Some of her friends from daycare will be attending [omitted for publication] Elementary as well; and h.

On those days when P. has parenting time with her father after school, she can take the school bus within two block of his residence. Issue with respect to counselling with Jenn Vickers [ 15 ] C.W. arranged for P. to see Jenn Vickers, a family support worker in the employ of the Carrier Chilcotin Tribal Council. P. is not Indigenous, however, Jenn Vickers was prepared to be a “listening ear” to P.’s concerns. P. has been going to see Jenn Vickers sporadically since January 2022. She has had five sessions with P.

Jenn Vickers is not a qualified counsellor, however she is a registered social worker with a degree in social work. At the time of their sessions, P. was [omitted for publication] years old. [ 16 ] C.W. never consulted with P.C. before arranging for these consultations with Jenn Vickers. P.C. only learned that P. was participating in these sessions with Jenn Vickers when he attended the SCAN clinic.

P.C. says when he raised the topic of counselling with C.W., she refused to provide any information about the counselling or identify the name of the counsellor, or the reason for the counselling. [ 17 ] On April 4, 2022, P.C. contacted Jenn Vickers and learned that she was not a qualified counsellor. He advised Jenn Vickers that he was not consenting to P. continuing attending sessions with her. Jenn Vickers invited P.C. to meet with her and discuss his concerns. He declined to do so.

Jenn Vickers states in her letter dated June 24, 2022 (Exhibit E to C.W.’s June 28, 2022 Affidavit): As a professional in the community of [omitted for publication], I know there is a lack of service for children and youth who do not fall under the criteria for Child and Youth Mental Health services. I do not provide counselling. I am a listening ear: I provide a safe environment for children and youth to speak with me as another safe adult outside the family. [ 18 ] In her June 28, 2022 Affidavit C.W. explained why she decided to have P. engage in these “listening ear” sessions with Jenn Vickers.

C.W. states in her affidavit: 25. [P.] expresses to me some concerns and issues that she has during her time with [P.C.] 26. [P.] has told me that she hates her dad, that she does not want to spend time with him and how she does not like spending time with her brothers. She told me that her brothers tease and torment her while she is at her father’s home. [P.] shows signs of significant anxieties and is showing signs of stress about spending time with her father. 27.

I tried to encourage and re-assure [P.] and speak positively and encourage her about spending time with her father, but her anxieties did not improve [ 19 ] P.C. does not observe any of these “anxieties” when P. is in his care. He states in his August 25, 2022 Affidavit: 27. [P.] has never shown me any signs of distress, nor given me any impression of needing counselling. [P.] is overall a very happy, loving child.

The only times that I have seen [P.] overly upset is when [C.W.] makes plans with [P.] that have to get cancelled because they go against the current court order (scheduling activities and trips on my parenting time, making decisions without us agreeing). 28. If [P.] ever showed signs of needing counselling, I would have no issues with [P.] having sessions with a qualified professional counsellor.

Passport [ 20 ] C.W. would like P. to have a passport. [ 21 ] P.C. does not want P. to have a passport at this time because she is not vaccinated with the COVID-19 vaccination and he is concerned if she were to travel internationally. [ 22 ] C.W. has no immediate plans for travelling with P. outside of Canada. She is concerned about the lengthy wait time to obtain a passport and wishes to arrange for one now rather than wait until the need should arise.

Analysis [ 23 ] On January 17, 2022, after a nine day trial, I ordered that C.W. and P.C. were guardians of P. and they were to share equally all the parental responsibilities for P. I ordered: 3. Pursuant to s. 40(2) of the Family Law Act , [C.W.] and [P.C.] will share equally all parental responsibilities for [P.] as set out in s. 41 of the Family Law Act, including: a. Making decisions respecting [P.'s] education and participation in extracurricular activities, including the nature, extent and location; b.

Subject to s. 17 of the Infants Act , giving, refusing, or withdrawing consent to medical, dental and other health-related treatments for [P.]; c. Applying for a passport, license, permit, benefit, privilege, or other thing for [P.]; d. Giving, refusing, or withdrawing consent for [P.], if consent is required; and e.

Exercising any other responsibilities reasonably necessary to nurture [P.’s] development; I also ordered that a. [C.W.] and [P.C.] shall have the obligation to advise each other of any matters of a significant nature affecting [P.]; b. [C.W.] has the ongoing obligation to provide [P.C.] with any significant third party records, including health, education or legal records, respecting [P.], which she has in her possession or control; c. [C.W.] and [P.C.] shall consult each other about any important decisions that must be made about [P.] and shall try to reach agreement concerning these important issues. [ 24 ] Although I ordered P.’s primary residence be with C.W.

I did not order that C.W.would have the final say if she and P.C. could not agree on a how to exercise a particular parenting responsibility. Instead, I ordered as term 8. Pursuant to s. 49 of the Family Law Act , if [C.W.] and [P.C.] cannot agree on a parental responsibility, either guardian may apply to the court and the court will determine which of the two guardians can make the decision or make such other order as the court deems appropriate. [ 25 ] This was not an oversight.

The history of the parties’ relationship was such that I was fairly certain if C.W. had the power to make the decision in the event that she and P.C. did not agree, this trump card would be perpetually in play. P.C. would once again be reduced to a bit player in P.’s life. [ 26 ] It troubles me that C.W. has continued with her pre-trial habit of unilaterally deciding significant decisions affecting P. without any discussions or consultation with P.C.

As I noted in my January 17, 2022, Reasons for Judgment, C.W. seems to regard P.C.’s court- ordered parenting time as more of a suggestion than a judicial pronouncement. It is not a view shared by P.C. or the Court. [ 27 ] The overarching consideration in determining issues of parenting responsibilities is the best interests of the child . The relevant statutory provisions are set out in s. 37 of the Family Law Act which states: Best interests of child 37

(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. [ 28 ] Although I find C.W.’s continuing refusal to comply with the Court order that she consult with P.C. on important decisions affecting P., I cannot simply decide in P.C.’s favour in order to censure C.W. for her lack of compliance. C.W. has advised the court that she recognizes she needs to be more inclusive of P.C. in P.’s live.

I hope she is sincere, because if C.W. continues to disregard court orders, she may find the Court making far more intrusive orders to compel her compliance. [ 29 ] When I made my order of January 17, 2022, I was of the view then, as I am now, that it is in P.’s best interest for her parents to engage in meaningful discussions with each other on significant decision affecting P.’s life. I recognize they have different parenting styles.

I would characterize C.W. as engaged in what in modern parlance is often referred to as a “helicopter parenting” someone who is habitually hovering and fretting over the child’s well-being. In my view, P.C. is more akin to an old-fashioned parent who values the family above all else.

For this reason, he believes that P. ought to go to school with her siblings, and if she was upset or needed to talk to someone, she has plenty of qualified and sympathetic adults close to home who are able to be a “listening ear.” These qualities, although different can be complimentary and enhance P.’s socialization and adaptability. Decision on P.’s school [ 30 ] P.C. has compelling reasons for wanting P. to attend the same school as E.C. and L.H. It goes beyond the mere convenience of having all of his children at the same school. P.C. wants to nurture an enduring relationship with P. and her brothers.

Sharing the experience of attending the same school is a significant step towards achieving that goal. This is particularly important given P. resides with P.C. less than half time. P., E.C. and L.H.’s relationship as siblings is more significant than preserving P.’s fleeting friendships with children who happen to attend the same daycare. [ 31 ] In her affidavit of June 28, 2022, C.W. claims that P. says she does not want to spend time with her father or her brothers, who she says tease and torment her. This is the opposite of P.C.’s experience. The parties recognize that P. may be customizing what she says

to suit her audience. If this is true, then I must accept that P. is either simply pretending to be happy with her father and brothers at hisresidence or that she tells her mother she is miserable there because that is what C.W. wants to hear. Either way, it concerns the Courtthat a five year old little girl is expected to manage her feelings and emotions to assuage a parent’s insecurity or antipathy towards herother parent. [32] Mr. Kane and Mr. Whidden have provided the Court with case law to guide the Court when parents cannot agree on howexercise a parenting responsibility. These cases include: N.R. G. v.

G.R.G., 2017 BCCA 407, Dunn v. Dunn, 2018 BCSC 2502, KFE v.JR, 2021 BCSC 1586, Reda v. Birch, 2021 BCSC 1844. Reda v. Birch was appealed and the BC Court of Appeal released its decision inReda v. Birch, 2022 BCCA 60 , on February 2, 2022 [33] In the appellate decision of Reda v. Birch, Justice Stromberg-Stein stated at para. 36: [36] I make one final comment, returning to both my consideration of the merits of this case and the importance of this case to thepractice.

The judge in this case applied N.R.G., which clearly states, at para. 40, there will be occasions when courts will be called uponto resolve disputes. While N.R.G. cautions courts not to take over the entire parenting regimen, as the judge did in N.R.G., it does not saycourts can never make decisions on a specific aspect of a child’s life, including education. Nor does it say judges cannot give directionson matters typically considered parental responsibilities when guardians seek guidance under s. 49.

N.R.G. held that while such decisionsshould be left to guardians in the first instance, when agreement cannot be reached the court may need to step in and make orders onan ad hoc basis at the behest of guardians. This approach is consistent with the language and scheme of the legislation. It is also theapproach the judge took in this case. She could have allocated parental responsibility for education to the mother, recognizing this wouldmean sending the son to the Vernon school.

However, she was equally entitled to recognize the potential negative impact of doing so, asthere were two other children in this family. So, on the narrow application before her, she ordered the education direction. [34] Both counsel ask the Court to make a direction under s. 49.

At the parties’ behest, and given my initial reason for notempowering C.W. to make a tie-breaking decision, I will make the decision as to which school P. will attend kindergarten in the 2022-2023 school year. [35] Given the uncertainties in P.C.’s work schedule, I am going to direct P. attend [omitted for publication] Elementary School. Irecognize that for the time being, C.W. has the majority of the parenting time with P. I have made this decision based solely on theproximity of the school to C.W.’s new residence and P.s daycare. If P.C.’s work

schedule was less uncertain, I may well have decideddifferently. [36] I understand P.C.’s reticence of P. attending a school where C.W. has already made connections with the staff. [37] I encourage P.C. of going to the school, introducing himself and ensuring the staff know that he is an actively engaged fatherwith full parental rights and that he expects to be treated as such. P.C. might consider meeting with P.’s other service providers so theyare aware that P. has two parents with whom they are expected to consult and communicate.

Continuing sessions with Jenn Vickers [38] I suspect P.C.’s concern with P.’s sessions with Jenn Vickers is rooted in C.W.’s habit of gathering evidence to use against him inthese proceedings. P.C. views this clandestine activity with suspicion. His concerns are not unfounded given C.W.’s reasons for retainingJenn Vickers are focused on P.’s alleged disclosure she did not want to spend time with her father or her brothers. [39] In order to secure any meaningful parenting time with P., P.C. has had to answer to an unrelenting stream of allegations fromC.W. or her well-wishers. Still, he never gave up the fight.

A person with less tenacity may have not measured up to the challenge. Evenby the end of the trial in 2021, P.C. was still facing some mysterious complaint made to the police by some unknown person suggestinghe may have sexually abused P. The allegations were unsubstantiated. It was for this reason P.C. attended the SCAN clinic, where hefirst learned that P. was in counselling. [40] P.C. no longer believes much of what C.W. says. I cannot fault him for suspecting the “counselling” with Jenn Vickers is anotherone of C.W.’s alienating strategies to keep P.C. on the periphery of P.’s life.

Why else would C.W. refuse to discuss it with him or revealthe name of the counsellor or the reason for the counselling? Also, as demonstrated in these proceedings, where C.W. retains a serviceprovider, whether that is a “counsellor” such as Jenn Vickers, or the daycare provider, such as A.S., inevitably they ally themselves withC.W. against P.C. [41] I am refusing C.W.’s application that P. continue her sessions with Jenn Vickers. From the evidence I received at the hearing ofthis matter, it seems the reasons C.W. engaged Jenn Vickers are no longer exist.

In any event, P. only attended these sessionssporadically and she has not attended them since April 4, 2022, when P.C. made it known to Jenn Vickers he did not consent. P. was notsexually abused and she has a positive and loving relationship with P.C. and her brothers. [42] In the event that C.W. or P.C. or both consider it prudent to engage P. in counselling, they can discuss it and agree on acounsellor. I find the ameliorative benefits to P. continuing her sporadic visits to Jenn Vickers is outweighed by the discord it has createdin C.W. and P.C.’s fledging co-parenting relationship.

Passport [43] C.W. would like to obtain a passport for P. in anticipation that in a couple of years she will take P. to Disneyland. P.C. has noissue with C.W. taking P. to Disneyland per se. He is concerned about C.W. travelling with P. internationally because P. is notvaccinated against the COVID-19 virus. C.W. is not opposed to the COVID-19 vaccine for P., however, she wanted to wait assess thelong term effects of the vaccine. C.W. is concerned about the long processing time involved in obtaining a passport. [44] I think both parents have a point.

I will direct P.C. to sign P.’s application for a passport, and I will direct that upon its receipt,C.W. will deliver P.’s passport to P.C. and he can be its custodian until P.C. and C.W. agree on a travel itinerary.

Conclusion [ 45 ] In conclusion, the Court directs: a. that [P.] will attend [omitted for publication] Elementary School; b. [P.] will not continue counselling with Jenn Vickers, unless both parents agree; and c. [P.C.] will sign [P.’s] passport application and [P.C.] will be the custodian of the passport. He will provide the passport to [C.W.] 30 days in advance of [C.W.] and [P.] embarking on any preapproved international travel. [ 46 ] From all accounts, P. is a happy, intelligent, delightful little girl.

She has two loving and emotionally engaged parents who are relatively healthy, law-abiding, hard working and prosocial. If they learn to coparent with civility, they have an excellent chance of raising P. to be the person she wants to become. _____________________________ Judge J.T. Doulis Provincial Court of British Columbia